Murukan v. Land Revenue Commissioner, Revenue Divisional Officer, Agricultural Officer (Additional 3rd Respondent)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945 WP(C) NO.2445 OF 2024 ``` ## **`PETITIONER:`** ``` MURUKAN, AGED 54 YEARS S/O.THIRAVIYAM ACHARI, CHITHIRA, KOKKOTTUKONAM P.O, KODANGAVILA, ATHIYANOOR VILLAGE, THIRUVANANTHAPURAM, PIN - 695604 ``` ``` BY ADVS. M.HEMALATHA A.RAHIM ``` ## **`RESPONDENTS:`** ||**`1`**|**`LAND REVENUE COMMISSIONER`**|**`LAND REVENUE COMMISSIONER`**| |---|---|---|---| |||**`SECRETARIATE, STATUE, THIRUVANANTHAPURAM,`**|| |||**`PIN - 695001`**|| ||**`2`**|**`REVENUE DIVISIONAL OFFICER`**|| |||**`REVENUE DIVISIONAL OFFICE, CIVIL STATION,`**|| |||**`NEDUMANGAD, NEDUMANGAD. P.O, THIRUVANANTHAPURAM,`**|| |||**`PIN – 695541`**|| |**`*`**|**`3`**|**`THE AGRICULTURAL`**|**`OFFICER, POOVACHAL`**| |||**`THIRUVANANTHAPURAM`**|| |**`*`**||**`[ADDL.R3 IS SUO`**|**`MOTU IMPLEADED AS PER JUDGMENT`**| |||**`DATED 23.01.2024]`**|| |||**`BY SR.GP.SMT.K.AMMINIKUTTY`**|| ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.2445 of 2024 2 ## **`JUDGMENT`** ``` ‘TheAgriculturalOfficer,Poovachal, Thiruvananthapuram’ is suo motu impleaded as the additional 3[rd] respondent. ``` ``` 2. Petitioner has approached this Court aggrieved by Ext.P3 whereby Form 5 application submitted by him has been rejected by the 2[nd] respondent/Revenue Divisional Officer [RDO] solely relying on the report of the 3[rd] respondent/ Agricultural Officer. ``` ``` 3. Petitioner has purchased an extent of 15 Ares and 35 sq.meters of land comprised in Re- survey Nos.31/14 and 31/15-1 in Block No.44 of VeeranakavuVillage,NedumangadTaluk, Thiruvananthapuram District as per Ext.P1 Sale Deed. ``` W.P.(C) No.2445 of 2024 3 ``` 4. According to the petitioner, the aforesaid property will not come within the ambit of paddy land or wet land as defined under Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'Act, 2008') and is a pucca rubber plantation. However, it has been wrongly included in the Data Bank. The petitioner filed an application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy land and Wetland Rules, 2008 before the Revenue Divisional Officer to remove the said land from the Data Bank. The same has been rejected by the RDO vide Ext.P3 stating that as per the report of the Agricultural Officer, the Local Level Monitoring Committee [LLMC] has recommended not to remove the property from the Data Bank since there are water chals around the property and any construction ``` 4 W.P.(C) No.2445 of 2024 ``` activities in the property would obstruct the flow of water and is likely to cause water logging in the adjacent properties. It is also stated that on site visit by the office of the RDO, it is seen that the property was not converted before 2008. ``` ``` 5. The petitioner has filed this writ petition challenging Ext.P3 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 Ext.P3 order is contrary to the dictum laid down by this Court inAparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83]. ``` ``` 6. 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 ``` W.P.(C) No.2445 of 2024 5 ``` into force of the Act, 2008. On a perusal of Ext.P3, 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 RDO has relied solely upon the report of the Agricultural Officer and LLMC to refuse to remove the property from the Data Bank. ``` ``` 7. This Court had held in the decision in Arthasasthra Ventures (India) LLP v. State of Kerala [2022 (7) KHC 591]that, the RDO 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, 2008 and also whether the land is suitable for paddy cultivation or not. This Court, inMuraleedharan Nair v. Revenue Divisional Officer [2023 (4) KLT 270], has ``` W.P.(C) No.2445 of 2024 6 ``` held that when the petitioner seeks removal of his land from the Data Bank, it will not be sufficient for the RDO to dismiss the application simply stating that the LLMC has decided not to remove the land from the Data Bank. The RDO, being the 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 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. ``` ``` 8. Reliance upon the report of the Agricultural Officer andLLMC alone will not be sufficient while taking a decision on an application under Form 5. In Aparna Sasi Menon ``` W.P.(C) No.2445 of 2024 7 ``` [supra], this Court has held that there has to be a finding by the RDO that the water chals are connected to the nearby paddy fields or that the water chals in the petitioner’s property is indispensable for irrigation of paddy fields in the nearby area. There is no such finding in Ext.P3. ``` ``` 9. In the light of the dictum laid down by this Court in the above decisions, I find that Ext.P3 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent, the RDO, to reconsider the application in Form 5, in accordance with law and take a decision in the matter after obtaining KSRSEC report at the expense of the petitioner, within a period of two months from the date of receipt of the report of the KSRSEC. The petitioner shall apply before the ``` W.P.(C) No.2445 of 2024 8 ``` Agricultural Officer concerned for KSRSEC report within a period of two weeks from the date of receipt of a copy of this judgment. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/23/01/2024 ``` W.P.(C) No.2445 of 2024 9 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** |**`EXHIBIT-P1`**|**`A TRUE COPY OF THE SALE DEED NO. 444/12`**| |---|---| ||**`DATED 13-02-2012 OF KATTAKKADA SUB`**| ||**`REGISTRAR'S OFFICE`**| |**`EXHIBIT-P2`**|**`A TRUE COPY OF THE AGREEMENT DATED 10-`**| ||**`04-2021 ENTERED INTO BETWEEN THE`**| ||**`PETITIONER AND SURESH`**| |**`EXHIBIT-P3`**|**`A TRUE COPY OF THE PROCEEDINGS OF THE`**| ||**`2ND RESPONDENT DATED 11-08-2023`**| |**`EXHIBIT-P4`**|**`A TRUE COPY OF THE REPRESENTATION DATED`**| ||**`27-09-2023 FILED BEFORE THE 2ND`**| ||**`RESPONDENT`**| |**`EXHIBIT-P5`**|**`PHOTOS OF THE PROPERTY TAKEN RECENTLY`**|