K.T. Thomas v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944 ``` ## **`WP(C) NO. 27932 OF 2021`** ## **`PETITIONER/S:`** ## **`K.T. THOMAS,`** ``` KALAPURATHU VAYALIL, ETTUMANOOR P O, KOTTYAM-686631, MANAGING PARTNER, ARCADIA BACK WATER RESORTS. ``` ## **`BY ADV K.C.VINCENT`** ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, SECRETARIAT, THRIVUANANTHAPURAM-695001. ``` - **`2 THE DISTRICT COLLECTOR KOTTAYAM, COLLECTORATE, KOTTAYAM-686001.`** - **`3 THE REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER, MINI CIVIL STATION, KOTTAYAM-686001.`** - **`4 THE VILLAGE OFFICER KUMARAKOM VILLAGE, KUMARAKOM P O, KOTTAYAM-686563.`** - **`5 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KUMARAKOM, KUMARAKOM P O, KOTTAYAM-686563.`** - **`6 THE LOCAL LEVEL MONITORING COMMITTEE KUMARAKOM, REPRESENTED THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KUMARAKOMKM-686563.`** - **`7 KUMARAKOM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, KUMARAKOM P O, KOTTAYAM-686563.`** ``` BY ADV ATHUL SHAJI BY SR.GP.SRI.K.P.HARISH ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 27932 OF 2021 ..2.. ``` ## **JUDGMENT** The petitioner has approached this Court challenging Ext.P18 order dated 16.11.2021 of the 3[rd] respondent/ RDO, rejecting Ext.P8 application in Form-5 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008, for deletion of entries in respect of land mentioned therein from the Data Bank. 2. Ext.P18 order has been passed by the 3[rd] respondent/RDO pursuant to interim order dated 26.07.2021 in W.P.(C) No.14532 of 2021 wherein this Court directed the RDO to consider Ext. P8 application in Form No.5 on verifying the relevant materials and with notice to the petitioner. Ext.P18 order is impugned by the petitioner on the ground that the same has been passed on the misconception of the relevant provisions of law and without considering the relevant materials in the proper ``` WP(C) NO. 27932 OF 2021 ..3.. ``` perspective. According to the petitioner, while passing Ext. P18, the RDO did not consider Ext.P3, the minutes of the LLMC dated 22.10.2011 and Exts.P3(a) and P3(b) reports of the Village Officer and Tahsildar respectively which would state that the land is not suitable for paddy cultivation. The petitioner also states that the impugned order has been passed without considering the entry in Ext.P4 draft Data Bank and that the RDO should have taken into consideration Ext.P7 building permit issued by the Secretary of the Panchayat after site inspection and the observations made therein. The petitioner further contends that the report of the K.S.R.S.E.C was not taken in its right perspective by the RDO while passing Ext.P18 order. Accordingly, the petitioner prays to quash Ext. P18 and for consequential reliefs. 3. Heard Sri. K.C. Vincent, the learned Counsel for the petitioner and Sri. K.P. Harish, the learned Senior ``` WP(C) NO. 27932 OF 2021 ..4.. ``` Government Pleader for the respondents. 4. Sri. Vincent submits that there is no finding in any of the reports before the 3[rd] respondent/RDO that the subject land is suitable for paddy cultivation as on the date of enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (‘Act’ for short) _viz._ , 12.08.2008 and that Ext. P18 has been passed without taking into consideration the relevant materials and the order is vitiated by non-application of mind. 5 **.** The learned Counsel for the petitioner placed reliance on the decisions of this Court in **Mather Nagar Residents Association** v. **District Collector** [2020 (2) KLT 192] and **Joy** v. **Revenue Divisional Officer/Sub Collector** [2021 (1) KLT 433] and sought for a declaration that the subject lands are not paddy lands or wetlands as defined under Section 2 (xii) or (xv) of the Act. ``` WP(C) NO. 27932 OF 2021 ..5.. ``` 6. Sri. K.P. Harish, learned Senior Government Pleader contends that Ext.P18 is legal and valid. The learned Senior Government Pleader has also handed over the minutes of the LLMC. 7. On going through Ext.P18 order, I am convinced that the same has been passed by the 3[rd] respondent/RDO without taking note of the relevant materials. Therefore, Ext.P8 application needs a re-visit by the 3[rd] respondent/RDO taking into consideration all relevant materials. For the said purpose, Ext.P18 is set aside. The 3[rd] respondent/RDO shall consider Ext.P8 application afresh taking into consideration all relevant materials already on record and after hearing the petitioner and conducting site inspection. This shall be done within a period of two months from the date of receipt of a copy of this judgment. The petitioner will be free to produce any additional documents or evidence supporting his ``` WP(C) NO. 27932 OF 2021 ..6.. ``` application in Form–5 and the 3rd respondent/RDO shall consider those documents. It is made clear that this Court has not expressed any opinion on the merits of Ext.P8 application. The writ petition is disposed of. Sd/- **MURALI PURUSHOTHAMAN JUDGE** SB ``` WP(C) NO. 27932 OF 2021 ..7.. ``` ## **`APPENDIX`** ## **`PETITIONER EXHIBITS`** |**`Exhibit P1`**|**`A TRUE COPY OF THE TAX RECEIPT DATED`**| |---|---| ||**`08.11.2018.`**| |**`Exhibit`**|**`A TRUE COPY OF THE SALE DEED NO.1390 OF 2010 OF`**| |**`P1(a)`**|**`KOTTAYAM PRINCIPAL S R O, DATED 07.05.2010.`**| |**`Exhibit P2`**|**`A TRUE COPY OF THE ORDER OF THE TRIBUNAL FOR`**| ||**`LOCAL SELF-GOVERNMENT INSTITUTIONS DATED`**| ||**`03.03.2011 IN APPEAL NO.1039/2010.`**| |**`Exhibit P3`**|**`A TRUE COPY OF THE MINUTES OF THE LLMC DATED`**| ||**`22.10.2011.`**| |**`Exhibit`**|**`A TRUE COPY OF THE REPORT OF THE VILLAGE`**| |**`P3(a)`**|**`OFFICER DATED 26.10.2011.`**| |**`Exhibit`**|**`A TRUE COPY OF THE REPORT OF THE TAHSILDAR`**| |**`P3(b)`**|**`DATED 14.11.2011.`**| |**`Exhibit P4`**|**`A TRUE COPY OF THE RELEVANT PAGE OF THE DRAFT`**| ||**`DATA BANK.`**| |**`Exhibit P5`**|**`A TRUE COPY OF THE PROCEEDINGS OF THE`**| ||**`SECRETARY, KUMARAKOM GRAMA PANCHAYAT, DATED`**| ||**`17.09.2014.`**| |**`Exhibit P6`**|**`A TRUE COPY OF THE STOP MEMO ISSUED BY THE`**| ||**`VILLAGE OFFICER ON 20.08.2014.`**| |**`Exhibit`**|**`A TRUE COPY OF THE MAHASAR DATED 20.08.2014`**| |**`P6(A)`**|**`PREPARED BY THE VILLAGE OFFICER.`**| |**`Exhibit P7`**|**`A TRUE COPY OF THE PROCEEDINGS OF THE SECRETARY`**| ||**`AND THE REVISED BUILDING PERMIT DATED`**| ||**`21.02.2015.`**| |**`Exhibit P8`**|**`A TRUE COPY OF THE APPLICATION DATED 21.08.2017`**| ||**`WITH ACKNOWLEDGMENT.`**| ``` WP(C) NO. 27932 OF 2021 ..8.. ``` ``` Exhibit P9A TRUE COPY OF THE APPLICATION DATED 15.10.2018 FOR PERMISSION. ``` ``` Exhibit P10A TRUE COPY OF THE MINUTES OF THE LLMC DATED 31.10.2018. ``` ``` Exhibit P11A TRUE COPY OF THE NOTICE DATED 21.02.2019. ``` ``` Exhibit P12A TRUE COPY OF THE REPORT FROM KSRSEC DATED NIL. ``` ``` Exhibit P13A TRUE COPY OF THE APPLICATION IN FORM 5 DATED 30.12.2020. ``` ``` Exhibit P14A TRUE COPY OF THE PROCEEDINGS NO.44554/14-E9 (R3) OF THE DISTRICT COLLECTOR DATED 22.06.2021. ``` ``` Exhibit P15A TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK PUBLISHED ON 29.01.2021. ``` ``` Exhibit P16A TRUE COPY OF THE INTERIM ORDER DATED 26.07.2021 IN WPC NO.14532/2021. ``` ``` Exhibit P17A TRUE COPY OF THE ARGUMENT NOTE SUBMITTED ON 13.10.2021. ``` ``` Exhibit P18A TRUE COPY OF THE PROCEEDINGS OF THE SUB COLLECTOR, KOTTAYAM DATED 16.11.2021. ``` ``` Exhibit P19A TRUE COPY OF THE LETTER DATED 15.03.2019 ISSUED BY THE SECRETARY. ``` ``` Exhibit P20A TRUE COPY OF THE LETTER DATED 29.03.2019 ISSUED BY THE SECRETARY. ``` ``` Exhibit P21A TRUE COPY OF THE APPLICATION UNDER R T I ACT DATED 24.11.2021. ``` ``` Exhibit P22A TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 06.10.2021. ```