Paul T. George v. Revenue Divisional Officer Fort Kochi, Ernakulam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 15[TH] DAY OF MARCH 2024 / 25TH PHALGUNA, 1945** **WP(C) NO. 10275 OF 2024** ## **PETITIONER(S):** **PAUL T. GEORGE AGED 53 YEARS** **S/O T.K. GEORGE, THAKKOLKARAN HOUSE, THAIKATTUKARA, COMPANY PADI ALUVA, ERNAKULAM, PIN - 683106** **BY ADVS. SARUN RAJAN** - **P.B.SUNEER ARCHANA HARIDAS K.** ## **RESPONDENT(S):** - **1 REVENUE DIVISIONAL OFFICER FORT KOCHI, ERNAKULAM, PIN - 682001** - **2 VILLAGE OFFICER CHOORNIKKARA VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 683501** - **3 PRINCIPAL AGRICULTURE OFFICER AGRICULTURE OFFICER, ERNAKULAM, PIN - 682030** - **4 AGRICULTURAL OFFICER KRISHI BHAVAN, CHOORNIKKARA, ERNAKULAM, PIN - 683106** - **5 THE LOCAL LEVEL MONITORING COMMITTEE CHOORNIKKARA VILLAGE GRAMA PANCHAYATH, REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN, CHOORNIKKARA, ERNAKULAM, PIN - 683106** - **BY ADV.** - **SMT.AMMINIKUTTY.K, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO.10275 OF 2024 2 # **P.V.KUNHIKRISHNAN, J. -----------------------------------W.P.(C) No.10275 of 2024 ------------------------------------Dated this the 15[th] day of March, 2024** # **JUDGMENT** ## The above Writ Petition is filed with the following prayers: “I. Issue a writ in the nature of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext. P4 Order bearing File K1/1722/2020 dated 09.06.2023 issued by the 1[st] respondent and quash the same; II. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the 1[st] respondent to remove the property of the petitioner having extent of 11.40 Ares of land comprised in Re- Survey No.122/3 and 6.99 Ares of land in Re-Survey No.122/4-2 in Block No.34 of Choornikkara Village, in Aluva Taluk, Ernakulam District from the Data Bank prepared for the Choornikkara Grama WP(C) NO.10275 OF 2024 3 ## Panchayath; III. Issue such other writ, order or direction as this Hon’ble court deems fit and proper in the circumstances of the case. IV. Petitioner undertakes that the English translation of the vernacular documents will be produced as and when directed by this Hon’ble Court.” _[SIC]_ 2. The petitioner and his siblings are the owners in possession of a property having an extent of 11.40 Ares of land comprised in Re-Survey No. 122/3 and 6.99 Ares of land in Re-Survey No. 122/4-2 in Block No.34 of Choornikkara Village in Aluva Taluk, Ernakulam District. According to the petitioner, the said property is lying as a dry land and has been surrounded by godown, commercial institutions and roads. According to the petitioner, paddy is not cultivated in the plot and also in the adjacent area. It is the further case of the petitioner that, though the property is a dry land and converted before 2008, it is wrongly included in the Land Data Bank for the WP(C) NO.10275 OF 2024 4 Choornikkara Grama Panchayath. Thereafter, the petitioner filed an application in Form 5 under the Kerala Paddy Land and Wetland Act, 2008 and its Rules before the 1[st] respondent seeking to remove the property from the Land Data Bank. The 3[rd] respondent had called for the report from the 4[th] respondent. It is submitted that, as per the report submitted by the 4[th] respondent, it appears that the petitioner's property does not cultivate paddy, but instead, there are godown and commercial institutions in adjacent properties and petitioner's property is lying below the road level. The 4[th] respondent had also called for a report from the K.S.R.E.C. As per the report submitted by the K.S.R.E.C, it is stated that the property was observed as paddy land in the year 1967 and later the land was observed as fallow land in the data of 2006 and the land was observed as exposed soil with scattered vegetation in the data of 2008. WP(C) NO.10275 OF 2024 5 According to the petitioner, the data of 2011 shows the plot under vegetation cover. But the 1[st] respondent rejected Form 5 application submitted by the petitioner without considering the fact as revealed from Exts.P2 & P3 report is the submission. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Government Pleader. 4. This Court perused Ext.P4 order. Ext.P4 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.P4 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 Committee has decided not to remove the land from the Data Bank. WP(C) NO.10275 OF 2024 6 5. 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 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.10275 OF 2024 7 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 petitioner. The impugned order is not a speaking order. The contentions of the petitioner is 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: i) Ext.P4 order is set aside. ii) The 1[st] respondent is directed WP(C) NO.10275 OF 2024 8 to reconsider Form 5 application submitted by the petitioner, as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. iii) The petitioner is 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. If fresh KSREC report is called for, the Revenue WP(C) NO.10275 OF 2024 9 Divisional Officer need to consider the Form 5 application only within a period of three months from the date of receipt of the report from the KSREC. iv) The petitioner 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.10275 OF 2024 10 ## **APPENDIX OF WP(C) 10275/2024** ## **PETITIONER EXHIBITS** **EXHIBIT P1 THE TRUE COPY OF THE RELEVANT PAGES OF THE LAND DATA BANK FOR THE CHOORNIKKARA GRAMA PANCHAYATH PREPARED IN TERMS OF SECTION 5 (4) (I) OF THE CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008** - **EXHIBIT P2 THE TRUE COPY OF THE REPORT DATED NIL SUBMITTED BY THE 4 TH RESPONDENT BEFORE THE 3 RD RESPONDENT** **EXHIBIT P3 THE TRUE COPY OF THE KSREC REPORT DATED 09.06.2020** **EXHIBIT P4 THE TRUE COPY OF THE ORDER DATED 09.06.2023 PASSED BY THE 1 ST RESPONDENT THEREBY REJECTING THE FORM 5 APPLICATION OF THE PETITIONER RESPONDENTS EXHIBITS : NIL** **//TRUE COPY// PA TO JUDGE**