K V Sundaram v. State of Kerala

``` WP(C) NO. 481 OF 2024 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 22[ND] DAY OF MARCH 2024 / 2ND CHAITHRA, 1946 WP(C) NO. 481 OF 2024 ``` ## **`PETITIONER/S:`** ``` K V SUNDARAM, AGED 59 YEARS S/O. LATE SHRI. K.V. VISWANATHAN, MANAGING DIRECTOR, CARGOMAR PVT. LTD., POONITHURA, KOCHI, ERNAKULAM DISTRICT, PIN – 682304 ``` ``` BY ADVS. SHERRY J. THOMAS JOEMON ANTONY ANTONY NILTON REMELO ``` ## **`RESPONDENT/S:`** - **`1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM ., PIN – 695001`** - **`2 THE DISTRICT COLLECTOR, KOTTAYAM KOTTAYAM - KUMILI ROAD, COLLECTORATE, KERALA, KOTTAYAM DISTRICT, PIN – 686002`** - **`3 THE REVENUE DIVISIONAL OFFICER, PALA, REVENUE DIVISIONAL OFFICE, MINI CIVIL STATION, PALA BYPASS ROAD, KERALA, KOTTAYAM, PIN – 686575`** - **`4 THE TAHSILDAR (LR), VAIKOM TALUK OFFICE, 1ST FLOOR, MINI CIVIL STATION, VAIKOM, KOTTAYAM DISTRICT, KERALA, PIN – 686141`** - **`5 THE AGRICULTURAL OFFICER VECHOOR, KRISHIBHAVAN,VECHOOR, KUMARAKOM, KOTTAYAM. KERALA, PIN – 686144`** ``` WP(C) NO. 481 OF 2024 ``` ``` 2 ``` - **`6 THE VILLAGE OFFICER, VECHOOR VILLAGE OFFICE, EDAYAZHAM, KOTTAYAM, KERALA, PIN – 686144`** - **`7 THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER, VECHOOR, KRISHIBHAVAN,VECHOOR, KUMARAKOM, KOTTAYAM. KERALA, PIN – 686144`** ## **`OTHER PRESENT:`** ## **`SRI.E.G.GORDEN, SR.GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 481 OF 2024 ``` ``` 3 ``` ## **JUDGMENT** The above writ petition is filed with following prayers : - “• Call for the records pertaining to Ext P3 order and set aside the same. - Issue a writ of mandamus, any other writ, appropriate order directing the 3[rd] Respondent to re-consider Exhibit P 1 afresh on the basis of scientific report and satellite images as to character and fitness of the property, in accordance with actual lie and nature in accordance with the specific extent of property and allow the Form 5 Application within a time frame. - Issue a writ of mandamus, any other writ, appropriate order directing the 5[th] Respondent to avail the satellite images of the property ascertaining as to the character and fitness of the land as on 12.08.2008 as on and forward the same to the 3[rd] Respondent and allow the application in accordance with the Ext P 5 sketch. - Petitioner also prays that this Honourable Court may be pleased to dispense with the translation of the vernacular documents produced in the vernacular language. - Such other relief’s that this Honourable Court may deem fit and proper to grant, in the interest of justice. - Provide cost of the proceedings. [SIC] ``` WP(C) NO. 481 OF 2024 ``` ``` 4 ``` 2. The petitioner is the owner in possession of 75.05 Ares of property in Survey Nos.197/15-1, 197/9-5, 198/123, 198/3A1, 198/3A1-5, 226/2-2 in Block No.1 of Vechoor Village in Vaikom Taluk in Kottayam District. The petitioner applied in Form 5 application in connection with the removal of his property from the data bank issued by the authorities. The Petitioner’s property is in a converted stage for several years and there is no water body in and around the petitioner’s property, is the submission. Ext.P5 sketch would show the specific extent of converted property remaining with the other properties, is the submission. It is also submitted that KSREC report is obtained in connection with the above said property would show that some extent of property is converted in 2003 itself. The 3[rd] respondent, without considering this aspect and without calling for the report from the KSREC, passed Ext.P3 order rejecting Form 5 application is the submission. Aggrieved by the same this writ petition is filed. ``` WP(C) NO. 481 OF 2024 ``` ``` 5 ``` 3. Heard learned counsel appearing for the petitioner and the learned Government Pleader. 4. This Court perused Ext.P3 order. Ext.P3 is not a speaking order. Except relying on the report of the Agricultural Officer, the contention of the petitioner is not adverted while passing Ext.P3 order. In **Muraleedharan** **Nair v. Revenue Divisional Officer [2023 (4) KLT 270],** this Court observed that, it will not be sufficient for the Revenue Divisional Officer to dismiss the application simply stating that Local Level Monitoring Committee has decided not to remove the land from the Data Bank. 5. The Revenue Divisional Officer, being the competent authority, has to independently assess the status of the land and come to a conclusion that, removal of the land from the Data Bank will adversely affect paddy cultivation in the land in question and nearby paddy lands or that, it will adversely affect sustenance of wetlands in the area and in the absence of such findings, the impugned order is unsustainable. ``` WP(C) NO. 481 OF 2024 ``` ``` 6 ``` 6. In **Aparna Sasi Menon v. Revenue Divisional Officer [2023 (5) KLT 432]** , this Court observed that the predominant factor for consideration while considering Form 5 application should be whether the land which is sought to be excluded from the Data Bank is one where paddy cultivation is possible or feasible. 7. According to the petitioner, the impugned order is passed in violation of the provisions of the Kerala Conservation of Paddy and Wet Land Act, 2008. It is also submitted that the Revenue Divisional Officer has not applied his mind and simply accepted the report. It is also submitted that, the KSREC report is not properly considered by the Revenue Divisional Officer. The contention of the petitioner is that the status of the land as on 12.08.2008 is not ascertained properly as per scientific process. 8. After going through the impugned order, I am of the considered opinion that, there is some force in the argument of the petitioner. The impugned order is not a ``` WP(C) NO. 481 OF 2024 ``` ``` 7 ``` speaking order. The contentions of the petitioner is not adverted by the 3[rd] respondent while passing the order. Therefore, I am of the considered opinion that the impugned order is to be set aside. Therefore, this Writ Petition is disposed of with the following directions: - a) Ext.P3 order is set aside. - b) The 3[rd] respondent is directed to reconsider Form 5 application submitted by the petitioner, as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. - c) The petitioner is free to submit an application before the appropriate authority for getting the KSREC report within two weeks from the date of receipt of a copy of this judgment and if such an application is filed, the authority concerned will do the needful to obtain ``` WP(C) NO. 481 OF 2024 ``` ``` 8 ``` the same, in accordance with law. If KSREC report is available, the same will be considered by the 3[rd] respondent. If fresh KSREC report is called for, the Revenue Divisional need to Officer consider the Form 5 application only within a period of three months from the date of receipt of the report from KSREC. - d) The petitioner will produce the certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 3[rd] respondent for compliance. Sd/- ## **P.V. KUNHIKRISHNAN** ## **JUDGE** S.M.K. ``` WP(C) NO. 481 OF 2024 ``` ``` 9 ``` ## **`APPENDIX`** ``` PETITIONER’S EXHIBITS Exhibit P1THE TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER DATED 29/07/2022 ``` ``` Exhibit P2THE TRUE COPY OF THE KSREC REPORT DATED 20/08/2018 Exhibit P3THE TRUE COPY OF THE PROCEEDINGS OF 3RD RESPONDENT DATED 19/09/2023 Exhibit P4THE TRUE COPY OF THE PHOTOGRAPHS OF THE PETITIONER'S PROPERTY Exhibit P5THE TRUE COPY OF THE SKETCH ISSUED BY THE RETIRED SURVEYOR ```