Ranjitha v. Sub Divisional Magistrate, Ottapalam and Others (W.P.C. No. 9107/2024)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA,** ## **1945 WP(C) NO. 9107 OF 2024** ## **PETITIONER/S:** **RANJITHA AGED 34 YEARS** **DAUGHTER OF UNNIKRISHNAN, ROHINI, PULIKKAPARAMBIL, KATAMPAZHIPPURAM P.O., OTTAPALAM TALUK, PALAKKAD DISTRICTREPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SHAJAHAN K, AGED 42 YEARS, SON OF MUHAMMED, RESIDING AT KAIPPANGANI HOUSE, POMBILAYA P.O., NELLAYA, OTTAPALAM TALUK, PALAKKAD DISTRICT-679335, PIN – 678633** **BY ADVS. P.M.ZIRAJ IRFAN ZIRAJ VISHNU P.S. ABHIJITH P.A. SUMITHA SIV RAHUL SEBASTIAN** ## **RESPONDENTS** - **1 THE SUB DIVISIONAL MAGISTRATE OTTAPALAM, PALAKKAD DISTRICT, PIN – 679101** - **2 THE LOCAL LEVEL MONITORING COMMITTEE , KATAMPAZHIPPURAM GRAMA PANCHAYATH, PALAKKAD DISTRICT-REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN, KATAMPAZHIPPURAM PALAKKAD, PIN – 678633** - **3 AGRICULTURAL OFFICER KRISHI BHAVAN, KATAMPAZHIPPURAM PALAKKAD DISTRICT, PIN – 678633** ``` WPC No.9107/2024 ``` ``` 2 ``` **4 THE VILLAGE OFFICER KATAMPAZHIPPURAM -2 VILLAGE, PALAKKAD DISTRICT, PIN - 678633** ## **OTHER PRESENT:** ## **SMT.AMMINIKUTTY-SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` WPC No.9107/2024 ``` ``` 3 ``` ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P1 whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner and in possession of an extent of 17.33 Ares of property comprising 1.07 Ares in Re.Survey No.515/23, 16.26 Ares in Re.Sy. No.515/9 in Block No.76 of Katampazhippuram-2 Village. 3. According to the petitioner, the said property will not come within the definition of paddy land or wetland. The above said land was converted much before the commencement of Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as ‘Act, 2008’). However, it has been wrongly included in the Data Bank. The petitioner filed an application in Form 5 under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as ‘the Rules, 2008’) before the Revenue Divisional Officer to ``` WPC No.9107/2024 ``` ``` 4 ``` remove the said land from the Data Bank. The same has been rejected by the Revenue Divisional Officer vide Ext.P1 stating that the Agricultural Officer has reported that, as per the KSRSEC report, joint inspection held on 15.3.2023 and the decision of the LLMC, it is convinced that the subject land is not converted before 2008 and need not be removed from the Data Bank. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The petitioner has filed this writ petition challenging Ext.P1 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. It is also contended that the Revenue Divisional Officer has not made any independent assessment of the KSRSEC report before disposing of the Form 5 application to ascertain the exact nature of the land as on 12.8.2008, the date of coming into force of the Act, 2008. Further, the petitioner states that as per ``` WPC No.9107/2024 ``` ``` 5 ``` her enquiry, the data for the year 2004 to 2010 were not available with KSRSEC. 6. The relevant consideration for inclusion of a property as paddy land or wetland is as to the nature of the property as on the date of coming into force of the Act, 2008. Rule 4 (4E) of the Rules, 2008 provides that, on receipt of the application in Form 5, the RDO shall call for a report from the Agricultural Officer in the case of paddy land and that of the Village Officer in the case of wetland. Rule 4 (4F) provides that, on receipt of the report as above, the RDO shall, if deems necessary, verify the contents of the Data Bank by direct inspection or with the help of satellite images prepared by Central/State Scientific Technological institutions and pass appropriate orders on the application. On a perusal of Ext.P1, it is evident that, there is no assessment of the nature of property as on the date of coming into force of the Act, 2008 and the Revenue Divisional Officer has relied solely upon the report of the Agricultural ``` WPC No.9107/2024 ``` ``` 6 ``` Officer to refuse to remove the property from the Data Bank. The RDO has not made any independent examination of the KSRSEC report. 7. This Court has held in **Arthasasthra Ventures (India) LLP v. State of Kerala** [2022 (7) KHC 591] that, the Revenue Divisional Officer must, while considering an application for removal of a property from the data bank consider the question whether the land was a paddy land on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. 8. 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 ``` WPC No.9107/2024 ``` ``` 7 ``` 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 v. Revenue Divisional Officer** **[2023 (6) KHC 83],** this Court 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. 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. None of the parameters for consideration of a Form 5 application has been taken into account while passing the impugned order. I find that ``` WPC No.9107/2024 ``` ``` 8 ``` there is total non-application of mind on the part of the RDO in issuing Ext.P1. Accordingly, I set aside Ext.P1 with a direction to the Revenue Divisional Officer to reconsider the application of the petitioner in Form 5 and take a decision in the matter on the basis of the KSRSEC report obtained at the expenses of the petitioner, and other relevant factors mentioned in Rule 4 (4F), within a period of two months from the date of receipt of the KSRSEC report. The petitioner shall apply for a copy of the KSRSEC report before the Agricultural Officer concerned within two weeks from the date of receipt of a copy of the judgment. The petitioner shall produce a copy of the writ petition along with a copy of the judgment before the Revenue Divisional Officer. The writ petition is disposed of with the above directions. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-.13.03.2024. ``` WPC No.9107/2024 ``` ``` 9 ``` ## **APPENDIX OF WP(C) 9107/2024** **PETITIONER EXHIBITS Exhibit P1** **TRUE COPY OF THE ORDER NO.2819 OF 2023 DATED 11.12.2023 ISSUED BY THE FIRST RESPONDENT** **Exhibit P2** **TRUE COPY OF THE ORDER DATED 18.5.2002 ISSUED BY THE FIRST RESPONDENT TO MR.KUTTAN, SONOF NARAYANAN GUPTHA UNDER THE PROVISIONS OF KERALA LAND UTILIZATION ORDER**