Rajam B Nair v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945** **WP(C) NO. 6642 OF 2024** ## **PETITIONER(S):** RAJAM B NAIR AGED 86 YEARS RAJ NIVAS, ELATHIYANCODE PALAKAD, PIN - 678013 BY ADVS. E.ADITHYAN MEERA RAMESH NESAMUDHEEN TREESA MANJILA MRUDULA MOHAN SAFA C.M. ## **RESPONDENT(S):** 1 THE STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 REVENUE DIVISIONAL OFFICER, PUNNALUR, PUNANALUR PO KOLLAM, PIN - 691331 3 AGRICULTURAL OFFICER OFFICE OF THE AGRICULTURAL OFFICER, KRISHI BAVAN, PIRAVANTHOOR, KOLLAM, PIN - 689696 4 THE VILLAGE OFFICER PIRAVANTHOOR VILLAGE OFFICE, PIRAVANTHOOR, KOLLAM, PIN - 689696 ## **OTHER PRESENT:** SMT DEVI SHRI R, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.6642 OF 2024 2 # **P.V.KUNHIKRISHNAN, J. -----------------------------------W.P.(C) No.6642 of 2024** **------------------------------------Dated this the 21[st] day of February, 2024** ## **JUDGMENT** The above Writ Petition is filed with the following prayers: _“_ i. To issue a writ of certiorari or any other appropriate Writ, Order setting aside Exhibit P7A, Exhibit P7B and Exhibit P7C orders passed by the 2nd Respondent as unjust, illegal and arbitrary. ii. To issue a Writ of Mandamus or any other appropriate Writ, Order declaring that the issuance of Exhibit P7A, Exhibit P7B and Exhibit P7C orders is unjust and baseless. iii. To issue a writ of mandamus or any other appropriate writ ,order or direction directing the 2nd respondent to Re-consider and pass orders on Exhibit P5 A, Exhibit P5 B and Exhibit P5 C Applications (Form 5 Applications) after conducting a site WP(C) NO.6642 OF 2024 3 inspection and after affording and opportunity of being heard to the petitioner . iv. Issue a writ of mandamus or other appropriate writ, order or direction directing the 2[nd] and 3[rd] respondents to carry out necessary changes in the data bank to record the properties of the petitioner lying in Survey No. 319/ 1-83N, 538/4AJ having total extend of 6 Ares and 48 sq. meter, 319/1-1, 319/1-78-1, 538/10, 538/10-20, 538/2-2, 538/2-3,538/4A having total extent of 28 Ares and 72 sq meter and 319/1-81F,538/2H having total extend of 14 Ares and 97 sq. meter, at Pathanapuram Taluk, Pravanthur Village, Kollam District With Thanda per Numbers 12882, 8501 and 16488 respectively as “Purayidom”. v. Declare that the property of the petitioner lying in Survey No. 319/ 1-83N, 538/4AJ having total extend of 6 Ares and 48 sq. meter, 319/1-1, 319/1-78-1, 538/10, 538/10-20, 538/2-2, 538/2-3,538/4A having total extent of 28 Ares and 72 sq meter and 319/1-81F,538/2H having total extend of 14 Ares and 97 sq. meter, at Pathanapuram Taluk, Pravanthur Village, Kollam District With Thanda per Numbers 12882, 8501 and 16488 WP(C) NO.6642 OF 2024 4 respectively not as a“ Nilam” (wet land). vi. Issue appropriate writ or such other appropriate writ, order or direction which this Hon’ble Court may deem fit in the circumstances of the case. _”[SIC]_ 2. The petitioner is the owner and is in possession of the properites comprised in Survey No. 319/ 1-83N, 538/4AJ having total extend of 6 Ares and 48 sq.meter, 319/1-1, 319/1-78-1, 538/10, 538/10-20, 538/2-2, 538/2-3,538/4A having total extent of 28 Ares and 72 sq.meter and 319/181F,538/2H having total extend of 14 Ares and 97 sq. meter, at Pathanapuram Taluk, Pravanthur Village, Kollam District with Thandaper numbers 12882, 8501 and 16488 respectively from 1983 onwards is the submission. It is submitted that the petitioner submitted Form 5 application for converting the wetland into dry land on 16.08.2021. It is submitted that, in the data bank prepared as per the Kerala WP(C) NO.6642 OF 2024 5 Conservation of Paddy Land and Wet Land Act, 2008, the property of the petitioner is shown as 'nilam'. It is submitted that, later the petitioner filed three separate Form 5 applications to the 2[nd] respondent under Rule 5(4) of the Kerala Conservation of Paddy Land and Wet Land Rules 2008 to remove the property of the petitioner from the data bank on 23.05.2023. However, the 2[nd] respondent rejected the petitioner’s request to remove the petitioner’s land from data bank issuing Ext.P7 series orders without proper consideration is the submission. Aggrieved by Exts. P7A, P7B and P7C orders of the 2[nd] respondent, this writ petition is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Government Pleader. 4. This Court perused Exts. P7A, P7B and P7C orders. Exts.P7A, P7B and P7C are not speaking WP(C) NO.6642 OF 2024 6 orders. Except relying on the report of the Agricultural Officer, the contention of the petitioner is not adverted while passing Exts.P7A, P7B and P7C orders. 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 Commitee has decided not to remove the land from the Data Bank. 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. WP(C) NO.6642 OF 2024 7 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. 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. WP(C) NO.6642 OF 2024 8 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 orders are not speaking orders. The contentions of the petitioner is not adverted by the 2[nd] 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: 1. Exts.P7A, P7B and P7C orders are set aside. 2. The 2[nd] respondent is directed 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. WP(C) NO.6642 OF 2024 9 3. 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 2[nd] respondent. 4. The petitioner will produce a certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 2[nd] respondent for compliance. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO.6642 OF 2024 10 ## **APPENDIX OF WP(C) 6642/2024** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 09/01/2024 EXHIBIT P2A TRUE COPY OF THE LAND TAX RECEIPT DATED 28/12/2023 EXHIBIT P2B TRUE COPY OF THE LAND TAX RECEIPT DATED 28/12/2023 ISSUED IN THE NAME OF THE PETITIONER HAVING THANDA PER NUMBER 16488 EXHIBIT P2C TRUE COPY OF THE LAND TAX RECEIPT DATED 28/12/2023 ISSUED IN THE NAME OF THE PETITIONER HAVING THANDA PER NUMBER 8501 EXHIBIT P3 TRUE COPY OF THE FORM 5 APPLICATION PHYSICALLY FILED BEFORE THE 2ND RESPONDENT DATED 16/08/2021 EXHIBIT P4 THE TRUE COPY OF THE ORDER DATED 1/10/2022 OF THE 2ND RESPONDENT REJECTING FORM 5 APPLICATION PHYSICALLY SUBMITTED BY THE PETITIONER DATED 16/08/2021 EXHIBIT P5A TRUE COPY OF THE FORM 5 APPLICATION DATED 23-05-2023 SUBMITTED BY THE PETITIONER HAVING THANDA PER NUMBER 12882 EXHIBIT P5B TRUE COPY OF THE FORM 5 APPLICATION DATED 23-05-2023 SUBMITTED BY THE PETITIONER HAVING THANDA PER NUMBER 8501 EXHIBIT P5C TRUE COPY OF THE FORM 5 APPLICATION WP(C) NO.6642 OF 2024 11 DATED 23-05-2023 SUBMITTED BY THE PETITIONER HAVING THANDA PER NUMBER 16488 EXHIBIT P6 THE TRUE COPY OF THE KSREC REPORT DATED 01/04/2023 EXHIBIT P7A THE TRUE COPY OF THE ORDER DATED 20/11/2023 REJECTING THE FORM 5 APPLICATIONS SUBMITTED BY THE PETITIONER FOR THE CONVERSION OF THE PROPERTY COMPRISED IN THE SURVEY NUMBER 319/1-83N, 538/4J REJECTING THE FORM 5 APPLICATIONS SUBMITTED BY THE PETITIONER FOR THE CONVERSION OF THE PROPERTY COMPRISED IN THE SURVEY NUMBER 319/1-83N, 538/4J EXHIBIT P7B THE TRUE COPY OF THE ORDER DATED 20/11/2023 REJECTING THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER FOR THE CONVERSION OF THE PROPERTY COMPRISED IN THE SURVEY NUMBER 319/1-1, 319/1-78-1, 538/10, 538/10-20, 538/2-3, 538/4A EXHIBIT P7C THE TRUE COPY OF THE ORDER DATED 22/11/2023 REJECTING THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER FOR THE CONVERSION OF THE PROPERTY COMPRISED IN THE SURVEY NUMBER 319/1-81F, 538/2H RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE