Poulose K.J v. Revenue Divisional Officer, Irinjalakkuda and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 ``` ## **`WP(C) NO. 36640 OF 2022`** ## **`PETITIONER:`** ``` POULOSE K.J AGED 66 YEARS S/O. LONAPPAN, KODIYAN HOUSE, THOMBOOR POST, THRISSUR DISTRICT, PIN- 680 662. ``` ``` BY ADVS. ASOK KUMAR K.P. RASMI NAIR T. ``` ## **`RESPONDENTS:`** - **`1 THE REVENUE DIVISIONAL OFFICER, THRISSUR FIRST FLOOR, COLLECTORATE, CIVIL STATION, AYYANTHOLE, THRISSUR, KERALA – 680 003. *CORRECTED AS:`** ``` THE REVENUE DIVISIONAL OFFICER, IRINJALAKKUDA, FIRST FLOOR, MINI CIVIL STATION, CHEMMANADA ROAD, IRINJALAKKUDA, THRISSUR DISTRICT PIN – 680 125, ``` ``` *IS CORRECTED AS PER ORDER DATED 23.12.2022 IN IA NO.1/2022. ``` - **`2 THE VILLAGE OFFICER KOTTANELLUR VILLAGE, KOTTANELLUR POST, THRISSUR DISTRICT, PIN – 680 662.`** ``` 3LOCAL LEVEL MONITORING COMMITTEE VELOOKKARA GRAMA PANCHAYAT, REPRESENTED BY ITS CONVENER & AGRICULTURAL OFFICER, VELOOKKARA KRISHI BHAVAN, NORTH KADUPPASSSERY, THRISSUR DISTRICT, PIN – 680 683. ``` ``` WP(C).No.36640 OF 2022 ``` ``` 2 ``` ``` 4AGRICULTURE OFFICER KRISHIBHAVAN, VELOOKKARA, NORTH KADUPPASSERY, THRISSUR DISTRICT, PIN – 680 683. ``` ``` SR.GP. - SRI.E.G.GORDEN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.36640 OF 2022 ``` ``` 3 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P11 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer solely relying on the report of the Agricultural Officer. 2. The petitioner is the absolute owner of 0.1700 Hectares of land in Sy. No.686/4 of Kottanellur Village, Mukundapuram Taluk, Thrissur District. 3. According to the petitioner, the aforesaid property will not come within the ambit of paddy land or wet land as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as ‘the Act, 2008’). However, it is stated that the property is wrongly included in the Data Bank. The petitioner filed Ext.P7 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 ``` WP(C).No.36640 OF 2022 ``` ``` 4 ``` Data Bank. The same has been rejected by the Revenue Divisional Officer vide Ext.P11 stating that the Convener, LLMC, Velookkara Grama Panchayat has reported that the conversion of the stream/drainage flowing through the petitioner’s land will adversely affect the free flow of water to neighbouring paddy lands and a vigilance enquiry is underway in the matter. 4. The petitioner has filed this writ petition challenging Ext.P11 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. The petitioner contends that mere existence of thodu in the property cannot be a reason to reject Form 5 application. The petitioner also states that the 1[st] respondent should have adverted to the KSRSEC report. 5. In **Aparna Sasi Menon v. Revenue** ``` WP(C).No.36640 OF 2022 ``` ``` 5 ``` **Divisional Officer** [2023 (6) KHC 83], this Court has held that the existence of neerchals in a property should never be a prime consideration in deciding whether the land is to be retained in the Data Bank. Instead, the prime consideration should be whether paddy cultivation is possible in the property in question. 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 into force of the Act, 2008. On a perusal of Ext.P11, it is evident that, without any independent assessment of the nature of property as on the date coming into force of the Act, 2008, the Revenue Divisional Officer 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, in **Muraleedharan Nair v. Revenue Divisional Officer** [2023 (4) KLT 270], has ``` WP(C).No.36640 OF 2022 ``` ``` 6 ``` 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 is unsustainable. In **Aparna Sasi Menon** (supra), this Court has held 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 and feasible. ``` WP(C).No.36640 OF 2022 ``` ``` 7 ``` 8. In spite of the categorical declarations by this Court in the decisions cited above, the petitioner's application has been rejected solely relying on the report of the Agricultural Officer who recommended not to remove the land from the Data Bank. Accordingly, I find that Ext.P11 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider Ext.P7 application in accordance with law and after considering Ext.P13 KSRSEC report within a period of two months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition along with a copy of the judgment before the 1[st] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ## **`MURALI PURUSHOTHAMAN JUDGE`** SPR ``` WP(C).No.36640 OF 2022 ``` ``` 8 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** - **`EXHIBIT P1 TRUE COPY OF THE REGISTERED DOCUMENT 1778/2016 DATED14.7.16. OF VADAKKUMKARA SUB REGISTRY`** - **`EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT NO.KL08035004793/2022 DATED 28.09.2022 ISSUED BY THE VILLAGE OFFICER.`** - **`EXHIBIT P3 TRUE COPY OF THE SURVEY SKETCH PLOTTED BY THE LICENSED SURVEYOR AND COUNTERSIGNED BY THE VILLAGE OFFICER`** - **`EXHIBIT P4 TRUE COPY OF THE BUILDING PERMIT NO. A3235/2017 DATED 30.11.2017 OF THE SECRETARY VELUKKARA PANCHAYAT`** - **`EXHIBIT P5 TRUE COPY OF THE JUDGEMENT IN WP (C) NO. 19857 OF 2017 OF THE HON'BLE HIGH COURT.`** - **`EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGE OF DATA BANK NOTIFIED AS NO. 01/22-10- 2020 DATED 22.10.2020 BY THE LLMC, VELOOKKARA GRAMA PANCHAYAT`** - **`EXHIBIT P7 TRUE COPY OF THE APPLICATION IN FORM 5 DATED 29.6.2021 TO LLMC , VELLOORKKARA GRAMA PANCHAYAT.`** - **`EXHIBIT P8 TRUE COPY OF THE PHOTOGRAPHS OF PETITIONER'S LAND.`** - **`EXHIBIT P9 TRUE COPY OF THE LETTER NO. VLK.15/ 202021 DATED 24/02/2021 FROM AGRICULTURAL OFFICER/CONVENER LLMC, VELOORKKARA GRAMA PANCHAYAT`** - **`EXHIBIT P10 TRUE COPY OF THE REPORT OF CONVENER, LLMC, VELOORKKARA GRAMA PANCHAYAT`** - **`EXHIBIT P11 TRUE COPY OF THE ORDER NO.B27750/2021/R.DIS. OF 1ST RESPONDENT RDO, IRINJALAKKUDA.`** - **`EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN WP(C)NO.18619/20 DATED 28.6.2022 OF THIS HON'BLE COURT.`** - **`EXHIBIT P13 TRUE COPY OF THE KSREC REPORT NO. A-172/ 2015/ KSREC/011888/18 DATED 19.08.2020.`** ``` RESPONDENTS EXHIBITS: NIL. ```