Saji Santhosh v. District Collector, Ernakulam and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 11[TH] DAY OF MARCH 2024 / 21ST PHALGUNA, 1945** ## **WP(C) NO. 9094 OF 2024** ## **PETITIONER:** **SAJI SANTHOSH, AGED 58 YEARS W/O. T. K. SANTHOSH, PANAKKAL HOUSE, NELLIKKAMALA, MANAMEL ROAD, THEVAKKAL, ERNAKULAM, PIN - 682021** **BY ADVS. AMJATHA D.A. MUHASIN K.M. FARHANA K.H.** ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR**| |---|---| ||**CIVIL STATION, KAKKANAD,**| ||**ERNAKULAM, PIN - 682030**| |**2**|**THE REVENUE DIVISIONAL OFFICER**| ||**FORT KOCHI REVENUE DIVISIONAL OFFICE,**| ||**K B JACOB ROAD, FORT KOCHI, ERNAKULAM - 682001**| |**3**|**THE TAHSILDAR**| ||**ALUVA TALUK OFFICE, 1ST FLOOR,**| ||**MINI CIVIL STATION, CIVIL STATION ROAD,**| ||**PERIYAR NAGAR, ALUVA, ERNAKULAM, PIN - 683101**| |**4**|**THE VILLAGE OFFICER**| ||**NEDUMBASSERY VILLAGE OFFICE, KARIYAD,**| ||**MEKKAD, NEDUMBASSERY, ERNAKULAM, PIN - 683583**| |**5**|**THE AGRICULTURE OFFICER**| ||**NEDUMBASSERY KRISHI BHAVAN,**| ||**NEDUMBASSERY, ERNAKULAM, PIN - 683585**| ||**SMT.R.DEVI SHRI, GP**| ||**R6 BY SRI.VISHNU S.CHEMPAZHNTHIYIL, SC**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 9094 OF 2024** _**: 2 :**_ ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P3 whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of an extent of 3.92 Ares of land in Sy.No.252/29-3 of Nedumbassery Village, Aluva Taluk, Ernakulam District. 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 **WP(C) NO. 9094 OF 2024** _**: 3 :**_ the Data Bank 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.P2 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 same has been rejected by the Revenue Divisional Officer vide Ext.P3 stating that as per the report of the Agricultural Officer, the subject land is found to be suitable for paddy cultivation and there are paddy fields on its boundaries and the land is not converted before 2008 and the LLMC has recommended not to remove the land from the Data Bank. ## 4. The petitioner impugns Ext.P3 contending, **WP(C) NO. 9094 OF 2024** _**: 4 :**_ _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 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 **WP(C) NO. 9094 OF 2024** _**: 5 :**_ 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 institutions and Technological pass appropriate orders on the application. On a perusal of Ext.P3, 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 upon the report of the Agricultural Officer and the recommendation of the LLMC to refuse to remove the property from the Data Bank. **WP(C) NO. 9094 OF 2024** _**: 6 :**_ 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 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 **WP(C) NO. 9094 OF 2024** _**: 7 :**_ 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. 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. **WP(C) NO. 9094 OF 2024** _**: 8 :**_ 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. I find that there is total non application of mind on the part of the RDO in issuing Ext.P3. Accordingly, I set aside Ext.P3, with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider Ext.P2 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 **WP(C) NO. 9094 OF 2024** _**: 9 :**_ 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 petitioner shall produce a copy of this writ petition along with the copy of the judgment before the RDO. The writ petition is disposed of . **Sd/MURALI PURUSHOTHAMAN JUDGE** SB **WP(C) NO. 9094 OF 2024** _**: 10 :**_ ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE TAX RECEIPT DATED 22.06.2020 Exhibit P2 TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER DATED 07.01.2021** **Exhibit P3 TRUE COPY OF THE ORDER DATED 13.12.2022 ISSUED BY THE 2ND RESPONDENT Exhibit P4 COPY OF THE PHOTOGRAPHS OF THE PETITIONER'S PROPERTY**