Sabari P.V. v. Revenue Divisional Officer, Parakkunnam; Agricultural Officer, Krishi Bhavan, Elavanchery; Village Officer, Elavanchery

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 ## WP(C) NO. 9295 OF 2024 ## PETITIONER/S: SABARI P.V AGED 51 YEARS S/O VELAYUDHAN, RESIDING AT PANANTHARA HOUSE, VATTEKKAD P.O., PALAKKAD DISTRICT, PIN - 678506 BY ADVS. T.C.SURESH MENON B.DEEPAK NIKITHA K.V. ## RESPONDENTS: - 1 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, PARAKKUNNAM, VIDYUT NAGAR, PALAKKAD, PIN - 678001 - 2 THE AGRICULTURAL OFFICER KRISHI BHAVAN, ELAVANCHERY P.O., PALAKKAD, PIN - 678598 - 3 THE VILLAGE OFFICER ELAVANCHERY VILLAGE OFFICE, ELAVANCHERY P.O., PALAKKAD, PIN - 678508 ## OTHER PRESENT: SR.GP.SMT.PREETHA K.K. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC No.9295/2024 ``` ``` 2 ``` ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P5 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of an extent of 0.0474 Hectares (approximately 11.7 cents) in Re.Sy.Nos.597/3-4 and 597/5-4 of Elavanchery Village, Chittur Taluk, Palakkad District. Out of the said extent, 0.0386 Hectors is shown as ‘Nilam’. 3. According to the petitioner, the said property will not come within the ambit of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act, 2008' for short). However, it has been wrongly included in Ext.P3 Data Bank ``` WPC No.9295/2024 ``` ``` 3 ``` prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as 'the Rules, 2008' for short). The petitioner therefore filed Ext.P3 application in Form 5 under Rule 4(d) of the Rules, 2008 before the Revenue Divisional Officer to remove the said land from the Data Bank. The application has been rejected by the Revenue Divisional Officer vide Ext.P5 stating that as per the report of the Agricultural Officer, the property is converted after 2008 and that the land is suitable for paddy cultivation and is seen as 'nilam' and if it is converted, that will affect the paddy cultivation in the nearby area and the LLMC has recommended to retain the same in the Data Bank. 4. The petitioner impugns Ext.P5 contending, _inter alia,_ that the same is vitiated by non application of mind and is against the provisions of the Act, 2008 ``` WPC No.9295/2024 ``` ``` 4 ``` and the binding precedents of this Court. It is also contended that the RDO should have called for a report from the Kerala State Remote Sensing and Environment Centre (for short, 'the KSRSEC') before disposing of the Form 5 application to ascertain the exact nature of the land as on 12.08.2008, the date of coming into force of the Act, 2008. 5. 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. 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 ``` WPC No.9295/2024 ``` ``` 5 ``` 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.P5, it is evident that, without any independent assessment of the nature of property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has relied solely upon the report of the Agricultural Officer and the recommendation of the LLMC to refuse to remove the property from the Data Bank. 6. 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 ``` WPC No.9295/2024 ``` ``` 6 ``` for paddy cultivation or not.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. ``` WPC No.9295/2024 ``` ``` 7 ``` 7. Further, this Court in **Aparna Sasi Menon** v. **Revenue Divisional Officer** [2023 (6) KHC 83] has held that the predominant factor for determination 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. 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. None of the parameters for consideration of a Form 5 application has been taken into account while passing the impugned order. Accordingly, I find thatExt.P5 order cannot be sustained and I set aside the same, with a directin to the 1[st] respondent, the Revenue ``` WPC No.9295/2024 ``` ``` 8 ``` Divisional Officer to reconsider Ext.P3 application in Form 5 in accordance with law and take a decision after considering the KSRSEC report to be obtained at the expense 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 report of the KSRSEC. The petitioner shall apply before the Agricultural Officer concerned for KSRSEC report within a period of two weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of with the above direction. The petitioner shall produce a copy of this writ petition along with the copy of the judgment before the Revenue Divisional Officer. **MURALI PURUSHOTHAMAN JUDGE** al/-. ``` WPC No.9295/2024 ``` ``` 9 ``` ## A PPENDIX OF WP(C) 9295/2024 |PETITIONER|EXHIBITS| |---|---| |Exhibit-P1|TRUE COPY OF THE POSSESSION| ||CERTIFICATE ISSUED BY THE 3RD| ||RESPONDENT TO THE PETITIONER AND| ||OTHERS, DATED 23.2.2024.| |Exhibit-P2|TRUE COPY OF THE LATEST TAX RECEIPT| ||ISSUED BY THE 3RD RESPONDENT, DATED| ||18.5.2023.| |Exhibit-P3|TRUE COPY OF THE APPLICATION IN FORM| ||NO.5 SUBMITTED BY THE PETITIONER| ||BEFORE THE 1ST RESPONDENT, DATED| ||14.9.2022.| |Exhibit-P4|TRUE COPY OF FEW A PHOTOGRAPH OF THE| ||PETITIONER'S PROPERTY.| |Exhibit-P5|TRUE COPY OF THE ORDER NO.2407/2023| ||PASSED BY THE 1ST RESPONDENT, DATED| ||25.3.2023.| |Exhibit-P6|TRUE COPY OF THE SERVICE CERTIFICATE| ||ISSUED FROM THE OFFICE OF THE| ||COMMANDANT, 19TH BATTALION, DHUBRI,| ||ASSAM, DATED 17.2.2024.| |Exhibit-P7|TRUE COPY OF THE JUDGMENT IN W.P.(C)| ||NO.2086/2024 ON THE FILE OF THIS| ||HONORABLE COURT, DATED 18.1.2024.|