Mathews Kuruvilla and Stephen Kuruvilla v. State of Kerala and Others

## **W.P.(C) Nos.23856 & 15042 of 2023 1** ## **THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945** ## **WP(C) NO. 23856 OF 2023** ## **PETITIONERS:** 1 MATHEWS KURUVILLA AGED 43 YEARS S/O KURUVILLA, VELIKKETTEL HOUSE, KURICHITHANAM P.O., PINCODE- 686634, KOTTAYAM, KERALA NOW RESIDING AT 1880 SALMON LN, MANTECA, CA 95337, UNITED STATES OF AMERICA, REPRESENTED BY POWER OF ATTORNEY HOLDER KURIAN PHILIP, AGED 72 YEARS, S/O KURIAN, VELIKKETTEL HOUSE, KURICHITHANAM P.O., KOTTAYAM, ,, PIN - 686634 2 STEPHEN KURUVILLA AGED 50 YEARS S/O KURUVILLA, VELIKKETTEL HOUSE, KURICHITHANAM P.O., PINCODE- 686634, KOTTAYAM, KERALA NOW RESIDING AT 801 PROSPERITY ST., MOUNTAIN HOUSE, CA 95391, UNITED STATES OF AMERICA, REPRESENTED BY POWER OF ATTORNEY HOLDER KURIAN PHILIP, AGED 72 YEARS, S/O KURIAN, VELIKKETTEL HOUSE, KURICHITHANAM P.O., KOTTAYAM, PIN - 686634 BY ADV RUBEN GEORGE ROCK ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, AGRICULTURAL DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 DISTRICT COLLECTOR CIVIL STATION, COLLECTORATE P.O, KOTTAYAM, PIN - 686002 3 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, PALA, KOTTAYAM, PIN - ## **W.P.(C) Nos.23856 & 15042 of 2023 2** 686575 4 VILLAGE OFFICER KURICHITHANAM, KOTTAYAM., PIN - 686635 5 AGRICULTURAL OFFICER MARANGATTUPPILLY, KOTTAYAM., PIN – 686636 GP – SYAMANTHAK B.S THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING **:** ## **W.P.(C) Nos.23856 & 15042 of 2023 3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945** **WP(C) NO. 15042 OF 2023** ## **PETITIONERS:** 1 MATHEWS KURUVILLA,AGED 43 YEARS S/O KURUVILLA, NOW RESIDING AT 1880 SALMON LN, MANTECA, CA 95337, UNITED STATES OF AMERICA, HAVING PERMANENT ADDRESS AT VELIKKETTEL HOUSE, KURICHITHANAM P.O. KOTTAYAM, KERALA, PIN - 686634 2 STEPHEN KURUVILLA AGED 50 YEARS S/O KURUVILLA NOW RESIDING AT 801 PROSPERITY ST., MOUNTAIN HOUSE, CA 95391, UNITED STATES OF AMERICA, HAVING PERMANENT ADDRESS AT VELIKKETTEL HOUSE, KURICHITHANAM P.O. KOTTAYAM, KERALA, PIN - 686634 BY ADV RUBEN GEORGE ROCK ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, AGRICULTURAL DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 DISTRICT COLLECTOR CIVIL STATION, COLLECTORATE P.O, KOTTAYAM, PIN - 686002 3 REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, PALA, KOTTAYAM, PIN - 686575 4 VILLAGE OFFICER KURICHITHANAM, KOTTAYAM, PIN - 686635 5 AGRICULTURAL OFFICER ## **W.P.(C) Nos.23856 & 15042 of 2023 4** MARANGATTUPPILLY, KOTTAYAM, PIN - 686636 ## **OTHER PRESENT:** GP - SYAMANTHAK B.S. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P.(C) Nos.23856 & 15042 of 2023 5** ## **VIJU ABRAHAM, J.** ----------------------- **W.P.(C) Nos.23856 & 15042 of 2023** --------------------------------------- **Dated this the 10[th] day of November, 2023** ## **JUDGMENT** ## **WP(C) No.23856 of 2023** The petitioners have approached this Court aggrieved by the issuance of Ext.P6 order, whereby the Form-5 application submitted by the petitioners has been rejected by the 3rd respondent. 2. Petitioners are joint owners in possession of 5.20 Ares of land in Survey No.119/2 of Kurichithanam Village. The contention of the petitioners is that the property is lying converted much before 2008 and there was no paddy cultivation in it for more than last 40 years and further that no paddy cultivation is even possible in the said land. Petitioners have a further contention that the nearby land have already been removed from the data bank. 3. A perusal of Ext.P6 would reveal that the ## **W.P.(C) Nos.23856 & 15042 of 2023 6** only reason stated for rejecting the application is that the petitioners attempted to convert the property and that the proceedings under Section 13 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 has been initiated against them. It is seen that the said proceedings were challenged by the petitioners in Ext.P3 revision before the Government and a writ petition has been filed as WP(C) No.15042 of 2023 wherein an interim order staying all further proceedings was issued. 4. This Court in **Barathan Ramanathan v. State of Kerala (2022 (6) KLT Online 1068** ) has considered an identical issue and has held that pendency of Section 13 proceedings or revision proceedings based on Section 13 order cannot be a ground not to entertain an application invoking Rule 4(d) of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. Since the only reason stated in Ext.P6 is the pendency of such proceedings, Ext.P6 is liable to be interfered with. Therefore, Ext.P6 order is set aside. ## **W.P.(C) Nos.23856 & 15042 of 2023 7** 5. 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 Division 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 ## **W.P.(C) Nos.23856 & 15042 of 2023 8** 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. 6. In spite of these categorical declaration by this Court in a catena of judgments as cited above, the application submitted by the petitioners have been rejected without considering the same. 7. In view of the above, Ext.P6 is set aside with a consequential direction to the 2[nd] respondent to reconsider the Form-5 application submitted by the petitioners. If the petitioners submit 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 order afresh in the Form-5 application within a further period of three months from the date of receipt of ## **W.P.(C) Nos.23856 & 15042 of 2023 9** 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 and after conducting a site inspection. Petitioners will be free to file argument notes incorporating copies of the judgments relied on by them to substantiate their contentions and the 2[nd] respondent RDO while reconsidering the matter as directed above, shall advert to the findings by this Court in the judgments cited (supra) and also the contentions of the petitioners in the argument notes submitted by them and pass final orders in the matters as expeditiously as possible, at any rate, within an outer limit of 3 months from the date of receipt of a copy of this judgment. ## **WP(C) No.15042 of 2023** 8. This writ petition is filed wherein proceedings under Section 13 has been challenged by the petitioners. Admittedly against Ext.P4 ## **W.P.(C) Nos.23856 & 15042 of 2023 10** order, petitioners have preferred Ext.P3 revision before the Government. An interim order has been granted by this Court against all coercive proceedings pursuant to Ext.P4 order. Since I have already disposed of a connected writ petition, WP(C) No.23856 of 2023 in respect of the very same property in which the Form 5 application submitted by the petitioners has been rejected, wherein a direction was issued to the Revenue Divisional Officer to reconsider the Form 5 application in accordance with law, I am of the opinion that the Government shall take up the revision petition and to pass appropriate orders therein based on the decision to be taken by the RDO in the Form 5 application which is sought to be reconsider as per the judgment in WP(C) No.23856 of 2023, which shall be done within an outer limit of two months from the date of receipt of a copy of the order in Form 5 application, which shall be produced by the petitioners before the Government, within a period of two weeks of ## **W.P.(C) Nos.23856 & 15042 of 2023 11** receipt of a copy of the same. It is made clear that till proceedings are finalized as directed above, all further proceedings pursuant to Ext.P4 shall be kept in abeyance. It is also ordered that the petitioners shall also maintain status quo in respect of the property covered by Ex.P4. The writ petitions are disposed of as above. Sd/- **VIJU ABRAHAM JUDGE** pm ## **W.P.(C) Nos.23856 & 15042 of 2023 12** ## **APPENDIX OF WP(C) 23856/2023** PETITIONERS' EXHIBITS Exhibit P-1 A TRUE COPY OF LAND TAX RECEIPT OF THE LAND DATED 30.07.2021 Exhibit P-2 A TRUE COPY OF THE LOCATION SKETCH OF THE PROPERTY ISSUED BY ASSISTANT DIRECTOR OF SURVEY Exhibit P-3 A TRUE COPY OF THE FORM 5 APPLICATION DATED 09.03.2023 SUBMITTED BY PETITIONERS BEFORE THE 3RD RESPONDENT Exhibit P-4 A TRUE COPY OF THE ORDER DATED 28.03.2023 PASSED BY THE 2ND RESPONDENT Exhibit P-5 A TRUE COPY OF THE MEMORANDUM OF REVISION DATED 20.04.2023 FILED BEFORE 1ST RESPONDENT Exhibit P-6 A TRUE COPY OF ORDER DATED 29.04.2023 PASSED BY THE 3RD RESPONDENT Exhibit P-7 A TRUE COPY OF LETTER DATED 03.06.2023 ISSUED BY 4TH RESPONDENT ## **W.P.(C) Nos.23856 & 15042 of 2023 13** ## **APPENDIX OF WP(C) 15042/2023** PETITIONERS' EXHIBITS Exhibit P1 A TRUE COPY OF LAND TAX RECEIPT OF THE LAND DATED 30.07.2021 - Exhibit P2 A TRUE COPY OF THE LOCATION SKETCH OF THE PROPERTY ISSUED BY ASSISTANT DIRECTOR OF SURVEY Exhibit P3 A TRUE COPY OF THE FORM 5 APPLICATION DATED 09.03.2023 SUBMITTED BY PETITIONERS BEFORE THE 3RD RESPONDENT - Exhibit P4 A TRUE COPY OF THE ORDER DATED 28.03.2023 PASSED BY THE 2ND RESPONDENT - Exhibit P5 A TRUE COPY OF THE MEMORANDUM OF REVISION DATED 20.04.2023 FILED BEFORE 1ST RESPONDENT Exhibit P-6 A TRUE COPY OF THE POWER OF ATTORNEY DATED 27.04.2023 ISSUED BY THE 1ST PETITIONER - Exhibit P-7 - A TRUE COPY OF THE POWER OF ATTORNEY DATED 27.04.2023 ISSUED BY THE 2ND PETITIONER Exhibit P-8 A TRUE COPY OF LETTER DATED 03.06.2023 ISSUED BY 4TH RESPONDENT VILLAGE OFFICER