Leela and Sathyapalan v. Sub Collector, Collectorate, Eranhipalam, Kozhikode District and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945 ``` ## **`WP(C) NO. 1938 OF 2023`** ## **`PETITIONERS:`** ``` 1LEELA AGED 57 YEARS D/O.KUTTAN NAIR, ELUMBILATT HOUSE, VENGERI, VARATHUR, KOZHIKKODE DISTRICT, PIN – 673 010. ``` ``` 2SATHYAPALAN AGED 52 YEARS S/O.KUTTAN NAIR, ELUMBILATT HOUSE, VENGERI, VARATHUR, KOZHIKKODE DISTRICT, PIN – 673 010. ``` ``` BY ADVS. BABU S. NAIR SMITHA BABU ``` ## **`RESPONDENTS:`** ``` 1THE SUB COLLECTOR COLLECTORATE, CIVIL STATION, ERANHIPALAM, KOZHIKKODE DISTRICT, PIN – 673 020. 2THE LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENER, THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KOZHIKKODE, PIN – 673 601. 3THE VILLAGE OFFICER VENGERI VILLAGE, KOZHIKKODE DISTRICT, PIN – 673 010. ``` ``` BY ADV GOVERNMENT PLEADER ``` ## **`OTHER PRESENT:`** ``` GP - SYAMANTHAK B.S. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 1938 OF 2023 ``` ``` 2 ``` ## **VIJU ABRAHAM , J. ===========================** **WP(C) NO. 1938 OF 2023 ============================ Dated this the 4[th] day of December, 2023** ## **JUDGMENT** The petitioners have approached this Court aggrieved by the issuance of Ext.P3 and Ext.P4 orders, whereby Form-5 application submitted by the petitioners has been rejected by the 1[st] respondent relying on the report of the Agricultural Officer. 2. Though, the report is stated that there are trees having more than 15 years is standing in the property and no reason has been stated for rejecting the application. It is also contented that before issuing Ext.P3 and Ext.P4, no KSRSEC report was received and no site inspection was conducted by the 1[st] respondent. Therefore, seeks for a reconsideration of the Form 5 applications in accordance with the law. Though, in the report it is stated that there are trees ``` WP(C) NO. 1938 OF 2023 ``` ``` 3 ``` having more than 15 years are standing in the property and no reason has been stated for rejecting the application. It is also contented that before issuing Ext.P3 and Ext.P4, no KSRSEC report was received and no site inspection was conducted by the 1[st] respondent. Therefore, seeks for a reconsideration of the Form 5 applications in accordance with the law. 3. 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 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** ``` WP(C) NO. 1938 OF 2023 ``` ``` 4 ``` it was **Officer/Sub Collector [2021 (1) KLT 433]** 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 KSRSEC. 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 ``` WP(C) NO. 1938 OF 2023 ``` ``` 5 ``` 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. 4. In spite of these categorical declaration by this Court in a catena of judgments as cited above, the application submitted by the petitioner has been ``` WP(C) NO. 1938 OF 2023 ``` ``` 6 ``` rejected solely relying on the decision of the LLMC that not to remove the paddy land from the data bank. 5. In view of the above, Ext.P3 and Ext.P4 orders are set aside with a consequential direction to the 1[st] respondent to reconsider the Form-5 applications submitted by the petitioners. 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 Revenue Divisional Officer shall pass an order afresh in the Form-5 application within a further period of two months from the date of receipt of the KSRSEC Report and take a final decision in the matter shall be taken 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 and after conducting a site inspection. Petitioners will be free to file argument notes ``` WP(C) NO. 1938 OF 2023 ``` ``` 7 ``` incorporating copies of the judgments relied on by them to substantiate their contentions and the 1[st] respondent RDO while reconsidering the matter as directed above, shall advert to the findings of this Court in the judgments cited (supra) and also the contentions of the petitioners in the argument notes submitted by them. The writ petition is disposed of as above. **Sd/VIJU ABRAHAM JUDGE** rpr ``` WP(C) NO. 1938 OF 2023 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 1938/2023`** ``` PETITIONERS’ EXHIBITS ``` ``` Exhibit P1A TRUE COPY OF THE PARTITION DEED IN RESPECT OF THE PROPERTIES OF THE PETITIONER DATED, 31-3-2018. Exhibit P2TRUE COPIES OF THE PHOTOGRAPHS OF THE PROPERTIES OF THE PETITIONERS. Exhibit P3TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DATED, 30-11-2022. Exhibit P4TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DATED, 24-10-2022. ```