Jose Mathew v. Revenue Divisional Officer, Muvattupuzha and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` THURSDAY, THE 25[TH] DAY OF AUGUST 2022 / 3RD BHADRA, 1944 ``` ## **`WP(C) NO. 29478 OF 2021`** ## **`PETITIONER:`** ``` JOSE MATHEW AGED 67 YEARS S/O.MATHEW, MANGATT VEEDU, OONNUKAL P.O., KUTTAMANGALAM VILLAGE, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 688 693. ``` ``` BY ADVS. K.J.MOHAMMED ANZAR P.K.MINIMOLE MUHAMMED ASHIQUE BAPPU GALIB SALAM JAYARAJ REJI ``` ## **`RESPONDENTS:`** - **`1 THE REVENUE DIVISIONAL OFFICER MUVATTUPUZHA, CIVIL STATION, MUVATTUPUZHA, PATTIMATTOM ROAD, MUVATTUPUZHA, PIN - 686 001.`** - **`2 THE TAHSILDAR (LR) KOTHAMANGALAM TALUK, TALUK OFFICE, REVENUE TOWER, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686 666.`** - **`3 THE LOCAL LEVEL MONITORING COMMITTEE REP. BY ITS CONVENOR, THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KAVALANGAD, NELLIMATTOM P.O., KUTTAMANGALAM, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN - 686 693.`** - **`4 VILLAGE OFFICER KUTTAMANGALAM, VILLAGE OFFICE, NELLIMATTOM, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686 693.`** ## **`SRI.SYAMANTHAK B S, GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.29478 OF 2021 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 25[th] day of August, 2022 The Revenue Divisional Officer, Muvattupuzha rejected the application dated 09.10.2017 submitted by the petitioner for using his land for non-agricultural purposes. Hence, the petitioner is before this Court. 2. The petitioner states that he holds 2.5 Acres of land comprised in Survey No.251/3-1 of Kuttamangalam Village. The land is shown in the Data Bank as 'converted crop'. The petitioner would submit that Ext.P4 communication of the Agricultural Officer and Ext.P5 Certificate issued by the Tahsildar would show that the land is now in the nature of garden land as the same is cultivated with coconut trees. The Revenue Divisional Officer, however, rejected the application submitted by the petitioner under the Land Utilisation Order, ``` WP(C) NO.29478 OF 2021 ``` ``` 3 ``` 1967, seeking permission to use the land for non-agricultural purposes, as per Ext.P2. 3. The petitioner states that Ext.P2 has been passed without considering relevant materials. Ext.P3 extract of Land Data Bank would show that the land is already converted. Ext.P4 communication of the Agricultural Officer would show that there are standing coconut trees, aged 10 years. Ext.P5 Certificate issued by the Tahsildar would also establish that the land is now a garden land. Inspite of all these evidence, the Revenue Divisional Officer has rejected the application of the petitioner. 4. The petitioner would submit that if the Revenue Divisional Officer was not convinced about the nature of the land as in the year 2008, the Revenue Divisional Officer ought to have obtained KSREC report and relied on scientific data, before taking a decision. ``` WP(C) NO.29478 OF 2021 ``` ``` 4 ``` 5. Counsel for the petitioner pointed out that one of the reasons for rejection of the petitioner's application as reflected in Ext.P2 is that during rainy season, the area is liable to become water logged. This aspect was considered by this Court in the judgment in _**Methar Nagar Residents Association and another v. District Collector, Ernakulam**_ [ 2020 (2) KLT 192], wherein this Court held that merely because a land becomes water logged during rainy season or otherwise, it cannot be concluded that the said land is a paddy land or wetland. 6. Government Pleader entered appearance and resisted the writ petition. The Government Pleader pointed out that the Revenue Divisional Officer has considered the application of the petitioner and the application has been rejected as per Ext.P2 for good and sufficient reasons. The Revenue Divisional Officer, from the report of the Agricultural Officer, found that the land is a wetland with water body. The Revenue Divisional Officer also found that the land will be a ``` WP(C) NO.29478 OF 2021 ``` ``` 5 ``` water logged area during rainy season. Out of the total extent, 1 Acre of the land is lying fallow. If the land is permitted to be filled up, there will be water logging problems in the nearby areas. 7. The site was inspected by the authorities on 19.11.2018. As the application of the petitioner was considered and a decision was taken based on KSREC report also, the petitioner cannot impugn Ext.P2 order of the Revenue Divisional Officer on any of the grounds urged in the writ petition, contended the Government Pleader. 8. I have heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents. 9. It is seen from Ext.P3 extract of Land Data Bank that the land is described as 'crop converted'. The said Data Bank reflects the position of the land as in the year 2008. ``` WP(C) NO.29478 OF 2021 ``` ``` 6 ``` 10. In Ext.P4 Certificate of the Agricultural Officer, it has been certified that the land is now under cultivation with 100 coconut trees, aged 10 years. The Agricultural Officer has also certified that the land is not suitable for rice cultivation. 11. Ext.P5 is a report of the Additional Tahsildar. Ext.P5 would show that the land of the petitioner is cultivated with coconut trees 100 in numbers. The said document do not find any reference in Ext.P2 order of the Revenue Divisional Officer. Though the Revenue Divisional Officer has stated in Ext.P2 that the Agricultural Officer has relied on the Satellite Pictures of the land, the findings of the KSREC are not discernible from Ext.P2. 12. In view of the afore facts, this Court is of the view that the Revenue Divisional Officer should re-consider the matter adverting to Exts.P3, P4 and P5 and also taking into consideration the specific findings of the KSREC contained in their report. A decision in this regard shall be taken within a period of two months. The Revenue Divisional Officer shall provide a copy of the KSREC report to the petitioner and afford an opportunity of hearing to the petitioner, while taking a final decision in the matter. To enable the Revenue Divisional Officer to consider the matter afresh, Ext.P2 order is set aside. The writ petition is disposed of as above. sd/- **N.NAGARESH** **JUDGE** hmh ``` WP(C) NO.29478 OF 2021 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 29478/2021`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` ``` Exhibit P2 ``` ``` TRUE COPY OF THE JUDGMENT DATED 12/11/2021 IN WP(C) 20843/2021 OF THE HON'BLE HIGH COURT OF KERALA. TRUE COPY OF THE ORDER DATED 06/12/2021 ISSUED BY THE 1ST RESPONDENT RDO REJECTING THE PETITIONER'S APPLICATION UNDER KLU ORDER, 1967. ``` ``` Exhibit P3TRUE COPY OF THE DATA BANK IN RESPECT OF PROPERTY OF THE PETITIONER COMPRISED IN SY.NO.251/3-1 OF KUTTAMANGALAM VILLAGE. ``` ``` Exhibit P4TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER KRISHI BHAVAN KAVALANGAD DATED 15/03/2012. Exhibit P5TRUE COPY OF THE REPORT OF THE ADDITIONAL TAHSILDAR KOTHAMANGALAM DATED 22/03/2012 ADDRESSED TO THE 1ST RESPONDENT RDO. ``` ``` Exhibit P6TRUE COPY OF THE JUDGMENT REPORTED IN 2021(1) KHC 715. ```