Kunjivappu alias Kunhivappu v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA, 1945 ``` ## **`WP(C) NO. 38887 OF 2023`** ## **`PETITIONER:`** ``` KUNJIVAPPU @ KUNHIVAPPU AGED 70 YEARS S/O. VEERAN @ VEERANKUTTY, KUNDULIYIL HOUSE, KULUKKALLUR POST, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN – 679337 ``` ``` BY ADVS. R.SREEHARI HAMZA A.V. VIGNESH S. ``` ## **`RESPONDENTS:`** ``` 1SUB COLLECTOR/ REVENUE DIVISIONAL OFFICER OTTAPALAM, OFFICE OF THE SUB COLLECTOR/REVENUE- DIVISIONAL OFFICER, OTTAPALAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN – 679101 2LOCAL LEVEL MONITORING COMMITTEE (CONSTITUTED UNDER THE KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT,2008), KULUKKALLUR GRAMA PANCHAYAT, REPRESENTED BY ITS CONVENOR - AGRICULTURAL OFFICER, KRISHI BHAVAN KULUKKALLUR, MULAYANKAVU POST, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN – 679337 3AGRICULTURAL OFFICER KRISHI BHAVAN KULUKKALLUR, MULAYANKAVU POST, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN – 679337 ``` 2 W.P(C) No.38887 of 2023 ``` 4VILLAGE OFFICER KULUKKALLUR VILLAGE, KULUKKALLUR VILLAGE OFFICE , KULUKKALLUR POST, PATTAMBI TALUK, PALAKKAD DISTRICT., PIN - 679337 BY ADV. RIYAL DEVASSY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P(C) No.38887 of 2023 3 ## **VIJU ABRAHAM,J ----------------------W.P. (C).No.38887 of 2023** ## **--------------------------------Dated this the 22[nd] day of November, 2023** ## **JUDGMENT** The petitioner has approached this Court aggrieved by the issuance of Ext.P6 order, whereby the Form-5 application submitted by the petitioner has been rejected, solely relying on the report of the Local Level Monitoring Committee ( in short, LLMC). The petitioner contends that there is no independent consideration of the issue by the 1[st] respondent. 2. This Court in **Salim C.K. and Another v. State of Kerala and Others[2017 (1) KHC 394]** has held that the Data Bank that was contemplated as per the provisions of the Act was to contain details only of cultivable paddy land and wetland within the area of jurisdiction of LLMC concerned. Further in **Lalu P.S. v. State of Kerala[2020** - **(5) KHC 490]** has held that the data bank to be prepared W.P(C) No.38887 of 2023 4 under the Act is the data bank of the cultivable paddy land existing as on the date of the coming into force of the Rules, i.e., 24.12.2008. In **Joy v. Revenue Divisional Officer/Sub** **Collector[2021 (1) KLT 433]** it was held that it is the character and fitness of the land as available on 12.08.2008, that matters, to include or exclude a land from the data bank. This court in **Arthasasthra Ventures (India) LLP v. State of Kerala[2022 (4) KLT OnLine 1222]** has held that the most relevant aspect while considering Form-5 application is whether the land in question was a paddy land or a wetland when the Act, 2008 came into force and whether the land is fit for paddy cultivation and if the Revenue Divisional Officer was not satisfied with the available materials, ought to have resorted to scientific data including satellite photographs obtained from KSREC. This court in **Muraleedharan Nair v. Revenue Divisional Officer[2023 (4) KLT 270]** has held that when the petitioner seeks removal of his land from the Data Bank, it W.P(C) No.38887 of 2023 5 will not be sufficient for the Revenue Divisional Officer to dismiss the application simply stating that the LLMC has decided not to remove the land from Data Bank. 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 Data Bank will adversely affect paddy cultivation in the land in question or in the 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. Further, this Court in **Aparna Sasi Menon v. Revenue Divisional Officer[2023 (5) KLT 432]** has held that the predominant factor for consideration while considering the Form-5 application should be whether the land which is sought to be excluded from Data Bank is one where paddy cultivation is possible and feasible. 3. In spite of these categorical declaration by this Court in a catena of judgments as cited above, the W.P(C) No.38887 of 2023 6 application submitted by the petitioner has been rejected solely relying on the decision of the LLMC, not to remove the land from the data bank. 4. In view of the above, Ext.P6 is set aside with a consequential direction to the 1[st] respondent to reconsider the Form-5 application submitted by the petitioner. If the petitioner submits an application to the Agricultural Officer concerned seeking to obtain KSRSEC Report paying the prescribed fee within a period of two weeks, the 1st respondent shall pass order afresh in the Form-5 application within a further period of three months from the date of receipt of the KSRSEC Report and take a final decision in the matter after considering the report as well as the relevant factors stipulated in Rule 4 (4f) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008. Petitioner will be free to file argument notes incorporating copies of the judgments relied on by him to substantiate his contentions and the 1[st] respondent while reconsidering the 7 W.P(C) No.38887 of 2023 matter as directed above, shall advert to the findings by this Court in those judgments cited (supra) and also the contentions of the petitioner in the argument notes submitted by him. The writ petition is disposed of as above. SD/- **VIJU ABRAHAM, JUDGE** rmm/23/11/2023 W.P(C) No.38887 of 2023 8 ## **`APPENDIX OF W.P.(C).No.38887/2023`** ## **`PETITIONER’S EXHIBITS`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE BASIC TAX RECEIPT DATED 26/04/2023 ISSUED FROM THE KULUKKALLUR VILLAGE OFFICE IN FAVOUR OF THE PETITIONER FOR THE PERIOD 2023-2024. ``` - `Exhibit P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 17/11/2023 WITH NO.81887604, ISSUED IN FAVOUR OF THE PETITIONER FROM THE KULUKALLUR VILLAGE OFFICE.` - `Exhibit P3 TRUE COPY OF THE APPLICATION DATED 15/06/2022, WITH APPLICATION NO.1/2022/1154427 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 03/03/2023.` - `Exhibit P5 TRUE COPY OF THE REPORT DATED 17/11/2023 SUBMITTED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT.` - `Exhibit P6 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 24/07/2023 WITH FILE NO. 1851/2023.` - `Exhibit P7 TRUE COPY OF THE MINUTES AND DECISIONS TAKEN BY THE 2ND RESPONDENT IN THE MEETING HELD ON 16/12/2022.` W.P(C) No.38887 of 2023 9 ``` Exhibit P8 ``` ``` Exhibit P9 ``` ``` Exhibit P10 ``` ``` TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 28/02/2023 WITH FILE NO. 369/2023. ``` ``` TRUE COPY OF THE JUDGMENT DATED 21/09/2023 PASSED IN W.P.(C) NO. 30980/2023 BY THE HON'BLE HIGH COURT OF KEALA. ``` ``` TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA REPORTED AS 2023 (4) KLT 270 (MURALEEDHARAN NAIR -VS- REVENUE DIVISIONAL OFFICER) ```