K.Y. Titus v. Revenue Divisional Officer, Punalur and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945** **WP(C) NO. 22049 OF 2023** ## **PETITIONER:** **K.Y. TITUS, AGED 68 YEARS S/O YOHANANKUTTY, RESIDING AT KOLLAKKARAN TINCY VILLA, KIZHAKKEKARA MURIYIL, POOYAPPALLY, POOYAPPALLY VILLAGE, KOTTARAKARA TALUK. KOLLAM DISTRICT, PIN - 691537** ## **BY ADV ALEXANDER GEORGE** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER PUNALUR REVENUE TOWER, PUNALUR, KOLLAM DISTRICT - 691305** - **2 THE CONVENER, LOCAL LEVEL MONITORING COMMITTEE & AGRICULTURAL OFFICER POOYAPPALLY KRISHI BHAVAN, POOYAPALLY VILLAGE, CHENKULAM, KOLLAM DISTRICT, PIN - 691510** **3 THE AGRICULTURAL OFFICER POOYAPPALLY KRISHI BHAVAN, POOYAPALLY VILLAGE, CHENKULAM, KOLLAM DISTRICT, PIN - 691510** ## **OTHER PRESENT:** **SR. GP-M SRI. E. G. GORDEN** ## **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 22049 OF 2023 : 2 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P6 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of an extent of 19 Ares of land comprised in Re.Sy.No.224/10 in Block No.33 of Pooyappally Village, Kottarakara Taluk, Kollam District. 3. According to the petitioner, the said property will not come within the ambit of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act, 2008' for short) and the property was converted several years back. **WP(C) NO. 22049 OF 2023 : 3 :** However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as 'the Rules, 2008' for short). The petitioner therefore filed Ext.P3 application in Form 5 under Rule 4(d) of the Rules, 2008 before the Revenue Divisional Officer to remove the said land from the Data Bank. The same has been rejected by the Revenue Divisional Officer vide Ext.P6 stating that the Agricultural Officer has reported that a portion of the subject land remains as paddy land and there is cultivation in the adjacent land. The local residents have filed complained that if the subject land is converted, that would affect the cultivation in the adjacent properties. ## **WP(C) NO. 22049 OF 2023 : 4 :** 4. The petitioner impugns Ext.P6 contending, _inter alia,_ that the same is vitiated by non application of mind and is against the provisions of the Act, 2008 and the binding precedents of this Court. It is also contended that the RDO should have called for a report from the Kerala State Remote Sensing and Environment Centre (for short, 'the KSRSEC') before disposing of the Form 5 application to ascertain the exact nature of the land as on 12.08.2008, the date of coming into force of the Act, 2008. 5. The relevant consideration for inclusion of a property as paddy land or wet land is as to the nature of the property as on the date of coming into force of the Act, 2008. Rule 4(4E) of the Rules, 2008 provides that, on receipt of the application in **WP(C) NO. 22049 OF 2023 : 5 :** Form 5, the RDO shall call for a report from the Agricultural Officer in the case of paddy land and that of the Village Officer in the case of wetland. Rule 4(4F) provides that, on receipt of the report as above, the RDO shall, if deems necessary, verify the contents of the Data Bank by direct inspection or with the help of satellite images prepared by Central/State Scientific Technological institutions and pass appropriate orders on the application. On a perusal of Ext.P6, it is evident that, without any independent assessment of the nature of property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has relied upon the report of the Agricultural Officer and the recommendation of the LLMC to refuse to remove the property from the Data Bank. **WP(C) NO. 22049 OF 2023 : 6 :** 6. This Court has held in **Arthasasthra Ventures (India) LLP** v. **State of Kerala** [2022 (7) KHC 591] that, the Revenue Divisional Officer must, while considering an application for removal of a property from the data bank consider the question whether the land was a paddy land on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. 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 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 **WP(C) NO. 22049 OF 2023 : 7 :** 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. 7. Further, this Court in **Aparna Sasi Menon** v. **Revenue Divisional Officer** [2023 (6) KHC 83] has held that the predominant factor for determination 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. 8. In spite of the categorical declarations by **WP(C) NO. 22049 OF 2023 : 8 :** this Court in the decisions cited above, the petitioner's application has been rejected, solely relying on the report of the Agricultural Officer, who recommended not to remove the land from the Data Bank. None of the parameters for consideration of a Form 5 application has been taken into account while passing the impugned order. I find that there is total non application of mind on the part of the RDO in issuing Ext.P6. Accordingly, I set aside Ext.P6, with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider Ext.P3 the application in Form 5 in accordance with law and take a decision after considering the KSRSEC report to be obtained at the expense of the petitioner and other relevant factors mentioned in Rule 4(4F), within a period of **WP(C) NO. 22049 OF 2023 : 9 :** two months from the date of receipt of the report of the KSRSEC. The petitioner shall apply before the Agricultural Officer concerned for KSRSEC report within a period of two weeks from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of this writ petition along with the copy of the judgment before the RDO. The writ petition is disposed of . **Sd/MURALI PURUSHOTHAMAN JUDGE** SB ## **WP(C) NO. 22049 OF 2023 : 10 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit1 THE TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 18/10/2022** **Exhibit2 THE TRUE COPY OF THE LEASE AGREEMENT DATED 1.6.2019 Exhibit3 THE TRUE COPY OF THE FORM 5 APPLICATION DATED 10.08.2021** **Exhibit4 THE TRUE COPY OF THE REPORT FILED BY THE SECOND RESPONDENT DATED NIL RECEIVED BY THE PETITIONER AS PER THE RIGHT TO INFORMATION ACT Exhibit5 THE TRUE COPY OF THE ANONYMOUS LETTER DATED 20.10.2021** **Exhibit6 THE TRUE COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT IN A10760/21/KDS DATED 11.07.2022 Exhibit7 THE TRUE COPY OF THE PHOTOGRAPHS DATED 13.05.2023**