P.J. JOSE @ JOSE PAIKAYIL v. State of Kerala and Others

**W.P.(C).No.38068 of 2023 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945** ## **WP(C) NO. 38068 OF 2023** ## **PETITIONER:** P.J. JOSE @ JOSE PAIKAYIL AGED 71 YEARS S/O JOSEPH RESIDING AT PAIKAYIL HOUSE, HOUSE NO. MRA 61 B1, MANKKAPARAMBU ROAD, CHUTTUPADUKKARA, EDAPPALLY P.O, PIN - 682024 BY ADVS. N.SASANKAN PILLAI RAJITHA V.K ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT DEPARTMENT OF REVENUE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN - 695001 2 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, CIVIL STATION, THRISSUR -, PIN - 680003 3 LOCAL LEVEL MONITORING COMMITTEE CONSTITUTED UNDER THE KERALA CONSERVATION OF PADDY LAND & WET LAND ACT. 2008 REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICE, KRISHI BHAVAN, CHOTTUPARA, MULAMKUNNATHU KAVU P.O., PIN - 680581 ## **OTHER PRESENT:** GP - SYAMANTHAK B S THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P.(C).No.38068 of 2023 2** **VIJU ABRAHAM,J ----------------------W.P.(C).No.38068 of 2023 --------------------------------Dated this the 17[th ] day of November, 2023** ## **JUDGMENT** Petitioner has approached this Court aggrieved by Ext.P10 order, whereby the Form 5 application was rejected solely relying on the report of the LLMC. Petitioner submits that, he is the owner and in possession of total extent of 15.64 cents which is purchased by Exts.P1 and P2. Petitioner submits that the property is remaining as reclaimed land even prior to the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the property is covered by 30 years more aged trees like coconut, teak wood and other miscellaneous trees. Petitioner would further submit that out of the total extent of 15.64 cents 8.54 cents (3.46 ares) in Re-Survey No.239/2 is wrongly included in Ext.P5 data bank. Thereupon, petitioner preferred Ext.P8 application for removing the same from the data bank, which is now been rejected by Ext.P10 solely relying on the ## **W.P.(C).No.38068 of 2023 3** report of the LLMC and petitioner contend that there is no independent consideration of the application by the 2[nd] respondent. 2. 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**_ _**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 ## **W.P.(C).No.38068 of 2023 4** 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 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 ## **W.P.(C).No.38068 of 2023 5** 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. 3. 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 rejected solely relying on the decision of the LLMC not to remove the paddy land from the data bank. 4. In view of the above, Ext.P10 is set aside with a consequential direction to the 2[nd] respondent to reconsider the Form-5 application submitted by the petitioner. 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 ## **W.P.(C).No.38068 of 2023 6** period of three months from the date of receipt of 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. Petitioner will be free to file argument notes incorporating copies of the judgments relied on by him to substantiate his contentions and the 2[nd] 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 petitioner in the argument notes submitted by him. 5. The learned Government Pleader pointed out that though the petitioner has stated in the writ petition that his application is only in respect of 3.46 Ares, a perusal of Ext.P8 application would show that he has made a request in respect of the whole property, to which the learned counsel for the petitioner would submit that, the ## **W.P.(C).No.38068 of 2023 7** same is only a mistake and that has been brought to the notice of the Agricultural Officer as per Ext.P9. If any mistake has crept in Ext.P8 regarding the extent of the property, petitioner shall point out the same in the argument notes which shall also duly considered by the Revenue Divisional Officer while taking a decision as directed above. The writ petition is disposed of as above. sd/- **VIJU ABRAHAM, JUDGE** pm **W.P.(C).No.38068 of 2023 8** ## **APPENDIX OF WP(C) 38068/2023** PETITIONER'S EXHIBITS - Exhibit P1 TRUE COPY OF SALE DEED NO. 2251/2009 DATED 10.06.2009 OF TRISSUR S.R.O - Exhibit P2 TRUE COPY OF SALE DEED NO. 2253/2009 OF TRISSUR S.R.O DATED 10.06.2009 - Exhibit P3 TRUE COPY OF TAX RECEIPT DATED 04.04.2023 ISSUED BY KILLANNOOR VILLAGE OFFICE - Exhibit P4 TRUE COPY OF POSSESSION CERTIFICATE ISSUED BY KILLANUR VILLAGE OFFICE DATED 31.05.2023 - Exhibit P5 TRUE COPY OF DATA BANK PUBLISHED BY MULAMKUNNATHU KAVU GRAMA PANCHAYAT (NO. A3/272/2021 DATED 16.01.2021) - Exhibit P6 TRUE COPY OF PHOTOGRAPHS SHOWING THE NATURE OF THE PROPERTY OF THE PETITIONER AND SURROUNDING PROPERTIES AS RECLAIMED LAND. - Exhibit P7 . TRUE COPY OF THE LETTER DATED 12.06.2023 RECEIVED FROM MULAMKUNNATHU KAVU GRAMA PANCHAYAT - Exhibit P8 A TRUE COPY OF THE APPLICATION MADE BEFORE THE RDO TRISSUR DATED 24.06.2022 - Exhibit P9 TRUE COPY OF THE APPLICATION MADE BEFORE THE AGRICULTURAL OFFICER, MULAMKUNNATHU KAVU Exhibit P10 TRUE COPY OF THE ORDER DATED 24.1.2023 OF RDO, TRISSUR. Exhibit P11 TRUE COPY OF THE ORDER IN THE CASE OF BABY VS. DISTRICT COLLECTOR 2021(67) KLT 316