Marson Cherian and Mini Marson v. Sub Collector, Revenue Divisional Officer, Irinjalakuda; Tahsildar (Land Records), Mukundapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945** ## **WP(C) NO. 6637 OF 2024** ## **PETITIONER(S):** 1 MARSON CHERIAN AGED 62 YEARS S/O. CHERIAN VENNATTU PARAMBIL, SN PURAM, CHENGALLOOR, NENMANIKKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN - 680312 2 MINI MARSON AGED 59 YEARS W/O.MARSON CHERIAN VENNATTU PARAMBIL, SN PURAM, CHENGALLOOR, NENMANIKKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN - 680312 BY ADVS. R.MURALEEDHARAN DR.ANIES GEORGE ## **RESPONDENT(S):** 1 THE SUB COLLECTOR/THE REVENUE DIVISIONAL OFRICER THRISSUR, OFFICE OF THE REVENUE DIVISIONAL OFFICER, IRINJALAKUDA, THRISSUR DISTRICT, PIN - 680125 2 THE TAHSILDAR (LAND RECORDS) TALUK OFFICE, MUKUNDAPURAM, CHEMMANDA ROAD, IRINJALAKUDA, THRISSUR, PIN - 680125 BY ADV. SRI. B.S. SYAMANTAK, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.6637 OF 2024 2 # **P.V.KUNHIKRISHNAN, J. -----------------------------------W.P.(C) No.6637 of 2024** **------------------------------------Dated this the 21[st] day of February, 2024** ## **JUDGMENT** The above Writ Petition is filed with the following prayers: _“_ (a). issue a writ of certiorari or any other appropriate writ or order, quashing Exhibit P-8 order passed by the 1[st] respondent on applications submitted by the petitioners for conversion of nature of property in BTR and also to omit the property from data bank; (b). issue a writ of mandamus or any other appropriate writ, order or direction to the 1[st] respondent to pass orders on the applications submitted by the petitioners on consideration of Ext.P-3 to P-3(b) orders; (c). issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1[st] respondent to pass fresh and WP(C) NO.6637 OF 2024 3 appropriate orders on the application in accordance with law forthwith or within a time frame after obtaining a fresh report from the Agricultural Officer as to the nature and lie of the property conducting a personal visit/inspection of the property and an analytical study of the report submitted by the expert agency; (d). declare that the property for applications submitted by the petitioners are covered by Ext.P-3 to P-3(b), are only to be allowed especially when sanction was accorded to convert the property to "Parambnu" to the previous owners/predecessors-in-interest; (e). dispense with the production of English Translation of documents in vernacular; and (f). pass such other orders this Hon'ble court may deem fit and proper on the facts and circumstances of the case. _”[SIC]_ 2. The 1[st] petitioner is the owner of 49.67 Ares of land in Nadathara Village out of which 37.48 Ares was purchased in 1998-1999 period is the submission. The 2[nd] petitioner is the owner of 38.31 Ares of land in WP(C) NO.6637 OF 2024 4 Nadathara Village out of which 32.23 Ares was purchased in 1998-1999 period is the submission. The properties those were purchased in 1998-1999 period were dry lands when it was purchased and were converted by the previous owners obtaining Ext.P3 to P3(b) orders passed under the KLU Order, 1967, whereby sanction was accorded to convert the property to 'Parambu' is the further submission. Though the properties were converted into dry land, necessary changes had not been made in the BTR is the submission. Hence the petitioners filed applications to carryout corrections in BTR, which was rejected originally but subsequently reconsidered as per the directions in Ext.P4 judgment. But the 2[nd] respondent allowed the application in part is the submission. The authority left over the remaining property for the decision of the 1[st] respondent. The 2[nd] WP(C) NO.6637 OF 2024 5 respondent passed Ext.P5 order and refixed the land tax as per Ext.P6 and P7 notices. The 1[st] respondent has now rejected the request to carryout corrections in BTR for the remaining land of 11.23 Ares, stating that the LLMC reported not to allow the applications. Accordingly, 11.23 Ares of property remained to be the paddy land in BTR though it was converted by the previous owners to dry land obtaining Ext.P3 to P3(b) orders from the RDO, even before the same was devolved to the petitioners in 1998-1999 period is the submission. The property is shown as 'Parambu' or garden land in the title deeds is the submission. It is stated that the application is rejected in the light of the report and recommendations of the Agricultural Officer, Nadathara. Ext.P9 report of the KSREC shows that the buildings are there in the nearby area and is remained as fallow land with plantations and trees is WP(C) NO.6637 OF 2024 6 the submission. According to the petitioners, Ext.P9 report is prepared without application of mind or without visiting/inspecting the property. Hence this Writ petition is filed challenging Ext.P8 order. 3. Heard the learned counsel appearing for the petitioners and the learned Government Pleader. 4. This Court perused Ext.P8 order. Ext.P8 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.P8 order. In _**Muraleedharan Nair v. Revenue Divisional Officer**_ [2023 (4) KLT 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 WP(C) NO.6637 OF 2024 7 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 order is passed in violation of the provisions of the Kerala Conservation of Paddy and Wet Land Act, 2008. WP(C) NO.6637 OF 2024 8 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 petitioners. The impugned order is not a speaking order. The contentions of the petitioners are 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: WP(C) NO.6637 OF 2024 9 1. Ext.P8 order is set aside. 2. The 1[st] respondent is directed to reconsider Form 5 application submitted - by the petitioners, as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. 3. The petitioners are 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. WP(C) NO.6637 OF 2024 10 4. The petitioners will produce a certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 1[st] respondent for compliance. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO.6637 OF 2024 11 ## **APPENDIX OF WP(C) 6637/2024** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE RECEIPT FOR PAYMENT OF LAND TAX BY THE 1ST PETITIONER DT. 27.05.2023 EXHIBIT P2 TRUE COPY OF THE RECEIPT FOR PAYMENT OF LAND TAX BY THE 2ND PETITIONER DT. 27.05.2023 EXHIBIT P3 TRUE COPY OF THE ORDER PASSED BY THE REVENUE DIVISIONAL OFFICER UNDER KLUO DATED 07.04.1995 IN FILE NO. K- DIS-2409/95 EXHIBIT P3(A) TRUE COPY OF THE ORDER PASSED BY THE REVENUE DIVISIONAL OFFICER, UNDER KLUO DATED 10.04.1995 IN FILE NO. K- DIS-2410/95 EXHIBIT P3(B) TRUE COPY OF THE ORDER PASSED BY THE REVENUE DIVISIONAL OFFICER, UNDER KLUO DATED 07.04.1995 IN FILE NO. K- DIS-2411/95 EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN W.P. (C).NO. 26127/2021 DATED 06.01.2021 EXHIBIT P5 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 31.03 .2023 EXHIBIT P6 TRUE COPY OF THE NOTICE OF FINAL ASSESSMENT AND DEMAND UNDER S.6A(4) OF THE KERALA LAND TAX ACT DT.31.03.23 TO THE 1ST PETITIONER EXHIBIT P7 TRUE COPY OF THE NOTICE OF FINAL ASSESSMENT AND DEMAND UNDER S.6A(4) OF THE KERALA LAND TAX ACT. WP(C) NO.6637 OF 2024 12 DT.31.03.23 TO THE 2ND PETITIONER EXHIBIT P8 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 13/03/2023 EXHIBIT P9 TRUE COPY OF THE REPORT SUBMITTED BY THE KSREC DATED 09.06.2022 RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE