Sajila v State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 ``` ## **`WP(C) NO. 4106 OF 2024`** ## **`PETITIONER(S):`** ``` SAJILA ``` ``` AGED 30 YEARS W/O NOUFAL, POOVATHUNKAL HOUSE, PATTAMBI TALUK, NETHIRIMANGALAM AMSHAM, SANKARAMANGALAM P.O., PALAKKAD, PIN - 670303 ``` ``` BY ADVS. ALBIN A. JOSEPH SUSANTH SHAJI SIDHARTH O. ``` ## **`RESPONDENT(S):`** - **`1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER RS RD, OTTAPALAM, PALAKKAD, PIN - 679101`** ``` 3THE LOCAL LEVEL MONITORING COMMITTEE VALLAPPUZHA GRAMA PANCHAYATH, REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN, VALLAPPUZHA PALAKKAD, PIN - 679336 ``` ## **`BY ADVS.`** ## **`SMT. AMMINIKUTTY SR. GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.4106 OF 2024 ``` 2 ## **P.V.KUNHIKRISHNAN, J. ------------------------------------** **W.P.(C) No.4106 of 2024 ------------------------------------Dated this the 02[nd ] day of February, 2024** ## **JUDGMENT** ## The above Writ Petition is filed with the following prayers: “(i) Issue a writ, order or direction in the nature of certiorari or any other appropriate writ calling for the records leading to Ext-P6 order passed by the 2nd respondent and examine the same and quash the same by holding it as illegal, unsustainable and unfounded in the facts and circumstances. (ii) Issue a writ, order or direction in the nature of certiorari or any other appropriate writ calling for all records leading to Ext-P8 decision taken by the 3rd respondent, examine the same and quash the same as illegal. (iii) Issue a writ, order or direction in the ``` WP(C) NO.4106 OF 2024 ``` 3 nature of mandamus or any other appropriate writ, directing the 2nd respondent to take up Ext-P5 application, reconsider the same and issue fresh orders after considering all other factors mentioned in Rule 4(4F) of the Kerala Conservation of Paddyland and Wetland Act,2008. (iv) Allow the petitioner to recover the full costs incurred for the institution and conduct of the writ petition (civil) from the respondents (v) Dispense with production of English translation of vernacular documents.” **==> picture [33 x 12] intentionally omitted <==** 2. This Writ Petition is filed seeking a direction to the 2[nd] respondent to reconsider the order passed in Form 5 application under the Kerala Conservation of Paddy and Wet Land Rules, 2008 [for short, ‘the Rule, 2008’] and on the basis of the report of the Kerala State Remote Sensing and Environment Centre, Thiruvananthapuram [for short, ‘the KSREC’]. The ``` WP(C) NO.4106 OF 2024 ``` 4 petitioner is in absolute ownership and possession of property having an extent of 6 Ares 7 square meters comprised in Resurvey No.187/1-1 of Vallapuzha Village, Pattambi Taluk in Palakkad District. According to the petitioner the property of the petitioner was mistakenly included as paddyland in the Data Bank. The petitioner submitted Ext.P5 application before the 2[nd] respondent. The grievance of the petitioner is that, without adverting the procedure established in Kerala Conservation of Paddyland and Wetland Rules, 2008, the 2[nd] respondent without any independent assessment about the nature of the property, rejected Ext.P5 application by Ext.P6 order. According to the petitioner, Ext.P6 order is solely based on the report of the agricultural officer and the decision of the 3[rd] respondent LLMC. Aggrieved by Ext.P6 order, this writ petition is filed. 3. Heard learned counsel appearing for the ``` WP(C) NO.4106 OF 2024 ``` 5 petitioner and the learned Government Pleader. 4. This Court perused Ext.P6 order. Ext.P6 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.P6 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. 5. 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 nearby paddy lands or that, it will adversely affect sustenance of wetlands in the area and in the absence ``` WP(C) NO.4106 OF 2024 ``` 6 of such findings, the impugned order is unsustainable. 6. 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. 7. 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, it is mandatory on the part of the Revenue Divisional Officer to call for a report from the KSREC to ascertain the status of the land as on 12.08.2008 when the Act came into force. It is submitted that the status of the land as on 7 ``` WP(C) NO.4106 OF 2024 ``` 12.08.2008 can be ascertained only through a scientific process. 8. 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.P6 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. ``` WP(C) NO.4106 OF 2024 ``` 8 c) The petitioner is free to submit an 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. d) 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/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` WP(C) NO.4106 OF 2024 ``` 9 ## **`APPENDIX OF WP(C) 4106/2024`** ``` PETITIONER EXHIBITS ``` - `EXHIBIT-P1 TRUE PHOTOSTAT COPY OF THE DOCUMENT NO. 2639/2021 OF SUB REGISTRAR OFFICE PATTAMBI DATED 09/12/2021` - `EXHIBIT-P2 TRUE PHOTOSTAT COPY OF THE BASIC TAX RECEIPT DATED 05/06/2023 ISSUED BY VILLAGE OFFICER, VALLAPUZHA` - `EXHIBIT-P3 TRUE PHOTOSTAT COPY OF THE PHOTOGRAPHS OF THE PROPERTY DATED NIL` - `EXHIBIT-P4 TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES OF THE DATA BANK DATED 24/03/2012 PUBLISHED BY THE VALLAPUZHA GRAMA PANCHAYAT` - `EXHIBIT-P5 TRUE PHOTOSTAT COPY OF THE FORM 5 APPLICATION DATED 26/05/2022 PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT .` - `EXHIBIT-P6 TRUE PHOTOSTAT COPY OF THE ORDER DATED 01/06/2023 ISSUED BY THE 2ND RESPONDENT.` - `EXHIBIT-P7 TRUE PHOTOSTAT COPY OF THE REPORT DATED 26/05/2023 SUBMITTED BY THE AGRICULTURAL OFFICER, VALLAPUZHA.` - `EXHIBIT-P8 TRUE PHOTOSTAT COPY OF THE MEETING MINUTES DATED 05.04.2023 OF THE 3RD RESPONDENT.` ## RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE