Krishnakumari T. v. Sub Collector, Ottapalam & Others

# **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. 7954 OF 2024** ## **PETITIONER(S):** **KRISHNAKUMARI. T** **AGED 56 YEARS** **W/O.RAVINDRAN, NEZHUKATHODI HOUSE, MAITHRI NAGAR, SUNDER IYER ROAD, OTTAPALAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN - 679101** **BY ADVS. R.SREEHARI HAMZA A.V. VIGNESH S. APARNA M.P.** ## **RESPONDENT(S):** - **1 SUB COLLECTOR/ REVENUE DIVISIONAL OFFICER OTTAPALAM, OFFICE OF THE SUB COLLECTOR/REVENUE DIVISIONAL OFFICER, OTTAPALAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN - 679101** - **2 LOCAL LEVEL MONITORING COMMITTEE (CONSTITUTED UNDER THE KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT,2008), VANIYAMKULAM GRAMA PANCHAYAT , REPRESENTED BY ITS CONVENOR -AGRICULTURAL OFFICER, KRISHI BHAVAN - VANIYAMKULAM POST, OTTAPALAMTALUK, PALAKKAD DISTRICT, PIN - 679522** - **3 AGRICULTURAL OFFICER KRISHI BHAVAN - VANIYAMKULAM POST, OTTAPALAMTALUK, PALAKKAD DISTRICT, PIN - 679522** - **4 VILLAGE OFFICER VANIYAMKULAM 2 VILLAGE, VANIYAMKULAM 2 VILLAGE OFFICE , VANIYAMKULAM POST, OTTAPALAMTALUK, PALAKKAD DISTRICT, PIN - 679522** **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.7954 of 2024 2 # **P.V.KUNHIKRISHNAN, J. -----------------------------------W.P.(C) No.7954 of 2024** **------------------------------------Dated this the 28[th] day of February, 2024** ## **JUDGMENT** The above Writ Petition is filed with the following prayers: _“_ (i) issue a writ of certiorari or other appropriate writ, order or direction, calling for the records leading to the passing of order Exhibit P5 by the 1[st] respondent and to quash the same. (ii) issue a writ of mandamus or other appropriate writ, order or direction, directing the 1[st] respondent to reconsider and pass fresh orders on Exhibit P3 application submitted by the petitioners in Form No.5 before the 1[st] respondent under the provisions of the Kerala Conservation of Paddy Land and Wet Land Rules after obtaining a fresh and independent Recommendation/ Report from the 2[nd] respondent and thereafter verifying the same by physical inspection and also with the satellite images of the same to be obtained from the competent institution and also with due adherence to the dictum laid down by this Hon’ble Court, governing the subject matter, W.P.(C) No.7954 of 2024 3 within a reasonable time frame as fixed by this Hon’ble Court. (iii) This Hon’ble Court may be pleased to dispense with the filing of English Translation of the vernacular typed and vernacular documents filed in this Writ Petition (civil) on such terms and conditions as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. (iv) grant such other reliefs as this Hon’ble court deem fit and proper in the facts and circumstances of the case. _”[SIC]_ 2. Petitioner is the absolute owner and is in possession and enjoyment of 4.16 Ares of property in Old Sy.No.163/8 of Vaniyamkulam 2 Village, Ottapalam Taluk, Palakkad District. It is submitted that the petitioner after effecting necessary mutations in the Village records, is paying the basic tax with respect to the aforesaid property is the submission. It is also submitted that the petitioner was issued with a possession certificate. It is submitted that the property of the petitioner is described as 'Nancha' in the Revenue Records and it is included as Serial No.375 in the Land W.P.(C) No.7954 of 2024 4 Data Bank published with respect to Vaniyamkulam Grama Panchayath. It is submitted that an application in Form – 5 as per the Kerala Conservation of Paddy Land and Wet Land Rules, 2008 was submitted before the 1[st] respondent seeking for removing the petitioner's land from the Land Data Bank. But the 2[nd] respondent decided not to exclude the property of the petitioner from the Land Data Bank published. Based on the same, the 1[st] respondent rejected the Form – 5 application in a mechanical manner is the submission. According to the petitioner, the 1[st] respondent has not considered the ground realities while passing Ext.P5 order. Aggrieved by Ext.P5 order, this Writ Petition (Civil) is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Government Pleader. 4. This Court perused Ext.P5 order. Ext.P5 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.P5 order. In _**Muraleedharan Nair v. Revenue Divisional Officer**_ [2023 (4) KLT W.P.(C) No.7954 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. 7. According to the petitioner, the impugned W.P.(C) No.7954 of 2024 6 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: i) Ext.P5 order is set aside. ii) The 1[st] respondent is directed to W.P.(C) No.7954 of 2024 7 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 application only within three months from the date of receipt of the KSREC report. iv) The petitioner will produce a W.P.(C) No.7954 of 2024 8 certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 1[st] respondent for compliance. DM Sd/- **P.V.KUNHIKRISHNAN JUDGE** W.P.(C) No.7954 of 2024 9 ## **APPENDIX OF WP(C) 7954/2024** ## **PETITIONER EXHIBITS** EXHIBIT P1 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 16/02/2024 WITH NO.83613441, ISSUED IN FAVOUR OF THE PETITIONER FROM THE VANIYAMKULAM 2 VILLAGE OFFICE EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION NO.A-3084/2012 DATED 24/03/2012 OF VANIYAMKULAM GRAMA PANCHAYAT, PUBLISHED IN KERALA GAZETTE (EXTRAORDINARY) VOLUME. LVII WITH NO.595/09/GP-20 DATED 24/03/2012 INDICATING THE PETITIONER'S PROPERTY AS SERIAL NO.375 EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 15/01/2021 SUBMITTED BY THE PETITIONER IN FORM NO.5 OF THE KERALA CONSERVATION OF PADDY LAND AND WET LAND RULES,2008 BEFORE THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE MINUTES AND DECISIONS TAKEN BY THE 2ND RESPONDENT IN THE MEETING HELD ON 04/02/2021, OBTAINED BY THE PETITIONER FROM THE 3RD RESPONDENT , UNDER THE RIGHT TO INFORMATION ACT,2005 EXHIBIT P5 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT WITH NO.RDOOTP/1075/2021/G2 DATED 19/07/2021 EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA REPORTED AS 2023 (4) KHC 524 (MURALEEDHARAN NAIR.R -VS- REVENUE DIVISIONAL OFFICER) RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE