Raju Thomas v. State of Kerala and Others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 22[ND] DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945 ``` ``` WP(C) NO. 6769 OF 2024 ``` ## `PETITIONER:` ``` RAJU THOMAS AGED 51 YEARS S/O THOMAS KUZIJALIL HOUSE, PRAVITHANAM PO, BHARANANGANAM, MEENACHIL, KOTTAYAM, KERALA, PIN - 686651 BY ADVS. BABY THOMAS J.PRAKASH C.VADAKKAN GEORGE T.J INDRAJITH S KAIMAL ALICIA JOSE AISWARYARAJ ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2THE REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER, CIVIL STATION, PALA P.O, PALA, KOTTAYAM, PIN - 686575 3THE VILLAGE OFFICER VILLAGE OFFICE, PRAVITHANAM, PALA, KOTTAYAM, PIN - 686651 4THE AGRICULTURAL OFFICER KRISHI BHAVAN, BHARANANGANAM, VEZHANGANAM,KOTTAYAM, PIN - 686579. ``` ## `BY SRI.B.S.SYAMANTAK, GOVERNMENT PLEADER` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.6769 OF 2024 ``` 2 ## P.V.KUNHIKRISHNAN, J. ## -----------------------------------W.P.(C) No.6769 of 2024 ------------------------------------Dated this the 22[nd ] day of February, 2024 ## JUDGMENT ## The above Writ Petition is filed with the following prayers: “a) Issue a writ of certiorari or any other writ, direction or order calling for the records leading to Exhibit P5 and to quash the same. b) Issue a direction declaring that the lands having an extent of 33.20 Ares of properties comprised in Block No. 35-survey no. 206/1 of Bharananganam village of Meenachil taluk, owned by the petitioner is not paddy lands as defined in Section 2 (xii) of the 2008 Act for inclusion in the Data Bank. c) Issue a writ of mandamus or any other writ, direction or order directing the 2nd respondent to call for the reports from Kerala State Remote Sensing and Environment ``` WP(C) NO.6769 OF 2024 ``` 3 Centre (KSREC) and conduct the site inspection and submit a factual report before this Hon'ble Court, about present natural features of the land including the suitability of prospective cultivation of paddy and the age and number of trees standing in the subject lands within a time limit as dictated by this Hon'ble Court. d) Issue such other writ, order or direction as this Honourable Court deems fit and proper to grant in the facts and circumstances of the case, for the ends of justice. e) Petitioner also prays that this Hon'ble Court may be pleased to dispense with the translation of the documents produced in the vernacular Language. [SIC] 2. Petitioner is in ownership of 33.20 Ares of property comprised in Survey No.206/1 in Block No.035 situated in Bharananganan village, Meenachil Taluk, Kottayam District. The petitioner has filed Form - 5 application under the Kerala Conservation of Paddy Land and Wet Land Rules, 2008 on 10.04.2023 ``` WP(C) NO.6769 OF 2024 ``` 4 to change the contents in Data Bank. According to the petitioner, the property is not suitable for paddy cultivation and there are no paddy lands in the vicinity. 3. Upon receiving the Form - 5 application, the 4[th] respondent - Agriculture officer, conducted the inspection and made a report with the assistance of Local Level Monitoring Committee. The 2[nd] respondent reported the decision of the LLMC not to remove the lands from data bank, is the submission. 4. According to the petitioner, the findings of the 2[nd] is without any basis. The 2[nd] respondent misunderstood the observations in the absence of the report from KSREC and did not conduct a site inspection and did not hear the petitioner before issuing Exhibit P5 order, is the submission. Aggrieved by Ext.P5 order, this Writ Petition is filed. ``` WP(C) NO.6769 OF 2024 ``` 5 5. Heard learned counsel appearing for the petitioner and the learned Government Pleader. 6. This Court perused Ext.P5 order. Ext.P5 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.P5 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 Commitee has decided not to remove the land from the Data Bank. 7. 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 ``` WP(C) NO.6769 OF 2024 ``` 6 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. 8. 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. 9. 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 ``` WP(C) NO.6769 OF 2024 ``` 7 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. 10. 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 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: a) Ext.P5 order is set aside. b) 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. c) The petitioner is free to submit an ``` WP(C) NO.6769 OF 2024 ``` 8 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. d) If an application for KSREC report is submitted and the same is called for, the Revenue Divisional Officer need to pass orders in Form - 5 application only within three months from the date of receipt of the report from the KSREC. e) The petitioner will produce the certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 2[nd] respondent for compliance. Sd/- smv P.V.KUNHIKRISHNAN JUDGE ``` WP(C) NO.6769 OF 2024 ``` 9 ## `APPENDIX OF WP(C) 6769/2024` ``` PETITIONER’S EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE TAX RECEIPT DATED 07.07.2023 Exhibit P2TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK PUBLISHED IN THE KERALA GAZETTE EXTRAORDINARY DATED 24.03.2022 ISSUED BY THE 4TH RESPONDENT ``` - `Exhibit P3 TRUE COPY OF THE APPLICATION IN FORM 5 BEARING APPLICATION NO. 5/2023/42950 SUBMITTED BEFORE THE 2ND RESPONDENT DATED 10.04.2023` - `Exhibit P4 TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 06.06.2023` - `Exhibit P5 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT REJECTING THE APPLICATION NO.5/2023/42950 IN FILE NO. 3209/2023 DATED 30.06.2023` - `Exhibit P6 TRUE PHOTOGRAPHS OF THE PROPERTY SHOWING THE EXISTENCE OF AGED COCONUT TREES IN THE SUBJECT PROPERTY`