Rajesh Menon K v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 19[TH] DAY OF DECEMBER 2023 / 28TH AGRAHAYANA, 1945** ## **WP(C) NO. 42348 OF 2023** ## **PETITIONER:** RAJESH MENON K AGED 55 YEARS HOUSE NUMBER TC/42/42 STPRA-75 SINDHU KILIKODE LANE, SREEVARAHAM MANACAUD PO, THIRUVANANTHAPURAM, PIN - 695009 BY ADV K.R.PRATHISH ## **RESPONDENTS:** |1|STATE OF KERALA| |---|---| ||REPRESENTED BY ITS SECRETARY,| ||DEPARTMENT OF REVENUE,| ||GOVERNMENT SECRETARIAT,| ||THIRUVANANTHAPURAM, PIN - 695001| |2|THE REVENUE DIVISIONAL OFFICER| ||OFFICE OF THE RDO, FIRST FLOOR,| ||CIVIL STATION, CIVIL LINES RD,| ||AYYANTHOL, THRISSUR, PIN - 680003| |3|TAHSILDAR (LAND RECORDS)| ||THALUK OFFICE,THRISSUR, PIN - 680020| |4|THE VILLAGE OFFICER| ||KOLAZHY VILLAGE OFFICE,| ||THRISSUR, PIN - 680581| |5|AGRICULTURAL OFFICER| ||AGRICULTURAL OFFICE KOLAZHY| ||THRISSUR, PIN - 680581| |6|LOCAL LEVEL MONITORING COMMITTEE KOLAZHY PANCHAYAT| ||REPRESENTED BY ITS CONVENOR AGRICULTURAL OFFICER| ||AGRICULTURAL OFFICE KOLAZHY THRISSUR, PIN - 680581| **WP(C)NO.42348/2023** **2** 7 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE REPRESENTED BY ITS DIRECTOR VIKAS BHAVAN THIRUVANANTHAPURAM, PIN - 695033 BY ADV.SRI.SYAMANTHAK B.S., GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C)NO.42348/2023** **3** ## **JUDGMENT** _Dated this the 19[th] day of December, 2023_ Petitioner has approached this Court aggrieved by Ext.P6 order dated 15.03.2022 and Ext.P7 order dated 10.01.2022 whereby Form 5 and 6 applications were dismissed by the second respondent. A perusal of Ext.P6 order would reveal that the application has been rejected solely relying on the report of the Agricultural Officer and there is no independent consideration of the application by the second respondent. By Ext.P7 order, Form 6 application was rejected for the reason that the property is included in the Data Bank. 2. Petitioner is one of the owners in possession of a property having an extent of 16.45 Ares comprised in Sy.Nos.163/4-1 and 163/4-6 of Kolazhy Village, Thrissur Taluk and Thrissur District. Petitioner submits that in respect of a similarly situated property owned by the sister of the petitioner's father, this Court has interfered against the rejection of Form 5 and Form 6 applications and by Ext.P10 judgment in W.P.(C) No.31599 of 2023 dated 11.10.2023, the said rejection order has been set aside with **WP(C)NO.42348/2023** **4** a consequential direction to reconsider the matter. Petitioner submits that no KSRSEC report is called for nor even a site inspection was conducted before issuing Exts.P6 and P7 orders. 3. 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 Form-5 application is whether the land in **WP(C)NO.42348/2023** **5** 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 is unsustainable. Further, this Court in **Aparna Sasi Menon v. Revenue Divisional Officer** [2023 (5) KLT 432] has held that the predominant factor for **WP(C)NO.42348/2023** **6** consideration while considering 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. 4. In spite of these categorical declaration by this Court in a catena of judgments as cited above, the applications submitted by the petitioner has been rejected solely relying on the decision of the Agricultural Officer, not to remove the land from the data bank. 5. In view of the above, Exts.P6 and P7 orders are set aside with a consequential direction to the second respondent to reconsider 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 second respondent shall pass orders afresh in Form-5 application within a further period of two 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, **WP(C)NO.42348/2023** **7** 2008 and after conducting a site inspection. Subject to the outcome of the decision to be taken on Form 5 application submitted by the petitioner, the application in Form 6 shall also be reconsidered within a further period of six weeks thereafter. Petitioner will be free to file argument notes incorporating copies of the documents/judgments relied on by him to substantiate his contentions and the second respondent while reconsidering the matter as directed above, shall advert to the findings by this Court in those judgments cited (supra) and also the contentions of the petitioner in the argument notes submitted by him. Sd/- **VIJU ABRAHAM JUDGE** csl **WP(C)NO.42348/2023** **8** ## **APPENDIX OF WP(C) 42348/2023** PETITIONER'S EXHIBITS - Exhibit P1 TRUE COPY OF THE PARTITION DEED NO.347 OF 2015OF THRISSUR SUB REGISTRY - Exhibit P2 TRUE COPY OF THE LAND TAX RECEIPT NO. KL08014500613/2023 DATED 08.03.2023 ISSUED BY THE 4TH RESPONDENT - Exhibit P3 TRUE COPY OF THE RELEVANT PORTION OF THE DATA BANK ISSUED BY THE 5TH RESPONDENT - Exhibit P2(a) TRUE COPY OF THE LAND TAX RECEIPT NO. KL08014500615/2023 DATED 08.03.2023 ISSUED BY THE 4TH RESPONDENT Exhibit P4 TRUE COPY OF THE FORM 5 APPLICATION DATED 14/7/2021 SUBMITTED ON BEHALF OF PETITIONER'S FATHER BEFORE THE 2ND RESPONDENT - Exhibit P5 TRUE COPY OF THE REPORT SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 2ND RESPONDENT - Exhibit P6 TRUE COPY OF THE ORDER NO. D1/10811/2021 DATED 15-03-2022 ISSUED BY THE 2ND RESPONDENT - Exhibit P7 TRUE COPY OF THE ORDER ORDER NO.D118521/2019 DATED 10.01.2022 ISSUED BY THE 2ND RESPONDENT - Exhibit P8 TRUE COPIES OF THE PHOTOGRAPHS OF PETITIONER'S PROPERTY - Exhibit P9 TRUE COPY OF THE RELATIONSHIP CERTIFICATE ISSUED BY THE **WP(C)NO.42348/2023** **9** KANIYARCODE VILLAGE OFFICE Exhibit P10 TRUE COPY OF THE JUDGMENT OF HON'BLE HIGH COURT OF KERALA IN WP(C) NO.31599 OF 2023 DATED 11.10.2023