K.P. Yusuf v. Revenue Divisional Officer, Thrissur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945** **WP(C) NO. 7909 OF 2024** ## **PETITIONER(S):** **K.P.YUSUF AGED 63 YEARS S/O YUSUF KUTTY, KELATHUPARAMBIL HOUSE, AYYANTHOLE P.O.,THRISSUR DISTRICT, PIN - 680003** **BY ADVS. ASOK KUMAR K.P. RAKESH S MENON ABDUL HAMEED RAFI** ## **RESPONDENT(S):** - **1 REVENUE DIVISIONAL OFFICER FIRST FLOOR, COLLECTORATE, CIVIL STATION, AYYANTHOLE, THRISSUR, PIN - 680003** - **2 LOCAL LEVEL MONITORING COMMITTEE THRISSUR MUNICIPAL CORPORATION, REPRESENTED BY ITS CONVENER & AGRICULTURAL OFFICER ,AYYANTHOLE KRISHI BHAVAN, THRISSUR DISTRICT, PIN - 680003** - **3 THE AGRICULTURAL OFFICER KRISHI BHAVAN, AYYANTHOLE, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003** **BY ADV.** **SMT.AMMNIKUTTY.K, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.7909 of 2024 2 **P.V.KUNHIKRISHNAN, J. -----------------------------------W.P.(C) No.7909 of 2024 ------------------------------------Dated this the 28[th] day of February, 2024** ## **JUDGMENT** The above Writ Petition is filed with the following prayers: _“_ i. Declare that Exhibit P-7 Order is against law, arbitrary and per se illegal; ii. Call for the records leading to Exhibit P- 7 order of rejection of Form 5 application by the 1[st] Respondent and issue a Writ of certiorari or such other appropriate Writ, orders or directions quashing the same; iii. Issue a writ of mandamus or such other writ or order or direction to the 1[st] respondent to reconsider Exhibit P-6 application by conducting a physical inspection of the land and also to arrive at a decision whether the petitioner’s land is cultivable with paddy as on 12.08.2008, within a time frame to be fixed by this Hon'ble Court in the interest of justice; iv. To dispense with the production of English Translation of Malayalam Exhibits produced along with the Writ Petition in the W.P.(C) No.7909 of 2024 3 interest of justice. Render such other orders or directions as this Hon’ble Court may deem just, fit, proper and necessary in the facts and circumstances of the case. _”[SIC]_ 2. The petitioner is in absolute ownership, possession and enjoyment of an extent of land measuring to 7.28 Ares of property comprised in Survey No.708/19 and 20.24 Ares of property comprised in Survey No.708/3 & 709/1 of Ayyanthole Village, Thrissur Taluk, as per Exts. P1 & P2 title deeds respectively. It is the case of the petitioner that the above land got uncultivable for about 4 decades. It is further submitted that, neither the petitioner nor his predecessors in interest had cultivated the land. But the Revenue Records reveal that the petitioner’s land belongs to the classification of paddy land. The Data bank notified by the 2[nd] respondent had included the whole land measuring to an extent of 27.52 Ares in the Data bank. Hence the petitioner preferred an application in Form – 5 W.P.(C) No.7909 of 2024 4 as per the Kerala Conservation of Paddy Land and Wet Land Rules, 2008 before the 1[st] respondent. But the application was rejected stating that it was not in a converted position prior to 2008. According to the petitioner, the 1[st] respondent Revenue Divisional Officer did not apply his mind and mechanically decided that the land is paddy land and rejected form 5 application. It is also the case of the petitioner that the officer concerned has not even inspected the property. Hence it is submitted that Ext.P7 order passed by the 1[st] respondent is illegal and unsustainable. Aggrieved by Ext.P7 order, this Writ petition is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Government Pleader. 4. This Court perused Ext.P7 order. Ext.P7 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.P7 order. In _**Muraleedharan Nair v. Revenue Divisional Officer**_ [2023 (4) KLT W.P.(C) No.7909 of 2024 5 270], this Court observed that, it will not be sufficient for the Revenue Divisional Officer to dismiss the application simply stating that Local Level Monitoring Commitee 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. 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. W.P.(C) No.7909 of 2024 6 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 speaking order. The contentions of the petitioner is not adverted by the 1[st] 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: W.P.(C) No.7909 of 2024 7 i) Ext.P7 order is set aside. ii) The 1[st] 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. iii) 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 the same, in accordance with law. If KSREC report is available, the same will be considered by the 1[st] respondent. If the KSREC report is called for, the Revenue Divisional Officer need to pass final orders in Form – 5 W.P.(C) No.7909 of 2024 8 application only within three months from the date of receipt of the KSREC report. iv) The petitioner will produce a certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 1[st] respondent for compliance. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** W.P.(C) No.7909 of 2024 9 ## **APPENDIX OF WP(C) 7909/2024** ## **PETITIONER EXHIBITS** |EXHIBIT P-1|TRUE COPY OF THE DOCUMENT NO.| |---|---| ||4034/2006 DATED 14.07.2006 OF SUB| ||REGISTRY OFFICE, AYYANTHOLE| |EXHIBIT P-2|TRUE COPY OF THE DOCUMENT NO.| ||4035/2006 DATED 14.07.2006 OF SUB| ||REGISTRY OFFICE, AYYANTHOLE| |EXHIBIT P-3|TRUE COPY OF THE LAND TAX RECEIPT| ||DATED 27.04.2023| |EXHIBIT P-4|TRUE COPY OF THE RELEVANT PAGES OF| ||THE NOTIFIED DATA BANK NO.DW4/1640/II| ||VOL 2 DATED 22.01.2021| |EXHIBIT P-5|TRUE COPIES OF THE PHOTOGRAPHS| ||SHOWING THE GROUND REALITY OF THE| ||LAND| |EXHIBIT P- 6|TRUE COPY OF THE APPLICATION IN FORM| ||5 DATED 12.05.2022 PREFERRED TO THE| ||1ST RESPONDENT| |EXHIBIT P-7|TRUE COPY OF THE ORDER ISSUED BY THE| ||1ST RESPONDENT DATED 30.06.2023| RESPONDENTS EXHIBITS : NIL **==> picture [187 x 10] intentionally omitted <==**