Sanil George Koshy v. Revenue Divisional Officer, Office of the RDO Kollam; Agricultural Officer, Krishi Bhavan, Karunagappally (W.P.(C).No.23521 of 2023)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **FRIDAY, THE 27[TH] DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945** ## **WP(C) NO. 23521 OF 2023** ## **PETITIONER:** SANIL GEORGE KOSHY,AGED 44 YEARS S/O. V. G. KOSHY, CHEMBAKASSERIYIL HOUSE, PADASOUTH P. O., KARUNAGAPPALLY, KOLLAM, PIN - 690518 BY ADVS. B.PRAMOD BIJU VIGNESWAR AYYAPPADAS V ## **RESPONDENTS:** 1 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE RDO, KOLLAM, PIN - 691013 2 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KARUNAGAPPALLY, KOLLAM, PIN - 690518 ## **OTHER PRESENT:** GP - RIYAL DEVASSY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **VIJU ABRAHAM,J** ## **-----------------------** ## **W.P.(C).No.23521 of 2023 --------------------------------Dated this the 27[th] day of October, 2023** ## **JUDGMENT** Petitioner has approached this Court challenging Ext.P12 order, wherein Form-5 application submitted by the petitioner has been rejected by the 1[st] respondent. 2. Petitioner is the owner in possession of 13.50 sq.mtr of land comprised in Block No.9, Resurvey No.626/2 of Ayanivelikulangara village, Karunagappally Taluk, Kollam District. The contention of the petitioner is that the property stood reclaimed by natural process for the last 30 years and the said property is surrounded by garden lands on its all sides and commercial buildings are situated on the eastern and western side of the property whereas the PWD road passes through its southern side. Petitioner produced Ext.P3 series of photographs to show the nature and lie of the property. Petitioner contend that ## **W.P.(C).No.23521 of 2023 3** the property has been erroneously included in the data bank and thereupon the petitioner submitted Ext.P5 application in Form 5 to remove the property from the data bank. Thereafter, Ext.P7 report was obtained from the KSRSEC, and the observation and conclusion arrived at in Ext.P7, reads as follows: _The analysis has been carried out_ _from all available data sets of toposheet (1967) and different satellite data sets of 2003, 2012, 2016 and 2021 for the survey plot._ _As per the toposheet of 1967, the survey plot 626/2 was observed as paddy land. The plot was observed under mixed vegetation/plantation/trees side in the data of year 2003. The same land use practices were continued in the data of subsequent years as in 2012, 2016 and 2021._ without considering the findings in Ext.P7 the application was rejected by Ext.P9 order. Petitioner challenged Ext.P9 order by filing WP(C) No.34445 of 2022 wherein Ext.P9 order was set aside with a consequential direction to reconsider the matter, as per Ext.P10 judgment. Thereafter, Ext.P11 order has been passed again rejecting the ## **W.P.(C).No.23521 of 2023 4** claim of the petitioner without adverting to Ext.P7 report of the KSRSEC. Since issuance of Ext. P11 was not in accordance with the directions in Ext.P10 judgment, petitioner initiated Contempt of Court Case proceedings against the respondent as CC(C) No. 1220 of 2023 and while the said Contempt of Court Case was pending consideration before this Court, the 1[st] respondent withdrew Ext.P11 and thereafter, a fresh order, ie. Ext.P12 has been issued again rejecting the application of the petitioner reiterating the very same grounds stated in Exts.P9 and P11. It is aggrieved by the same, the petitioner has approached this Court. 3. Heard the learned government Pleader also. 4. The learned Government Pleader opposed the petition on the strength of the counter affidavit filed by the 1[st] respondent wherein it is stated that orders have been issued taking note of Ext.P7 report also. As regard the issuance of Ext.P11 order it is stated in the counter affidavit that it is only due to a mistake that the 1[st] respondent ## **W.P.(C).No.23521 of 2023 5** omitted to take note of the report while issuing Ext.P11 order and on realising the said mistake the order has been recalled and fresh order has been passed. 5. Going by the satellite picture made available as per Ext.P7, it could be seen that the property was observed under mixed vegetation, plantation/trees in the data of 2002-2003 and the same land use practices were continued in the data in the subsequent years as in 2012,2016 and 2021. From the date of coming into force of the Act, 2008 the property was observed under mixed vegetation/plantation/trees. The further objection as is seen from Ext.P12 is that the property is low lying and there is every chance for water logging during rainy season. This Court in **Jessy** ## **Abraham v. Land Revenue Commissioner (2021 (6) KHC** **316)** held that only for the reason that there is water logging in the property it cannot be treated as a paddy land coming under the definition of paddy land as per the Act. Petitioner relies on the judgment in **Mather Nagar Residents Association** ## **W.P.(C).No.23521 of 2023 6** ## **and Another v. District Collector, Ernakulam** **(2020(2) KHC 94)** relying on the KSRSEC report wherein similar findings were there the court has accepted the contention of the petitioner therein. This Court in **Arthasasthra Ventures (India) LLP** **v. State of Kerala [2022 (7) KHC 591]** held that while considering an application under Form 5, the KSRSEC report should be taken into consideration and the application shall be considered after conducting a site inspection. This Court in **Joy v. Revenue Divisional Officer (2021 (1) KLT 433)** has held that the parameters for consideration of Form 5 application is as to the nature and lie of the land as on 2008, i.e, the date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act. Admittedly, going by Ext.P7 report of the KSRSEC, the property was mixed vegetation/plantation/trees as on 2003 itself. Yet another reason stated for rejecting the application as per Ext.P12 is that there is every chance for water logging in the property which cannot be a reason for rejecting the application ## **W.P.(C).No.23521 of 2023 7** going by the judgment in **Jessy Abraham's** case cited supra. In view of the same, Ext.P12 is set aside with a consequential direction to the 1[st] respondent to reconsider the Form 5 application submitted by the petitioner and issue orders removing the property from the data bank. Orders in this regard shall be passed within a period of one month from the date of receipt of a copy of this judgment. Above writ petition is allowed as above. sd/- **VIJU ABRAHAM, JUDGE** pm ## **W.P.(C).No.23521 of 2023 8** ## **APPENDIX OF WP(C) 23521/2023** |PETITIONER'S EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE TAX RECEIPT DATED 30.10.2021| ||SHOWING PAYMENT OF BASIC TAX IN RESPECT OF| ||THE PETITIONER'S PROPERTY| |Exhibit P2|TRUE COPY OF THE LOCATION SKETCH OF THE| ||PETITIONER'S PROPERTY| |Exhibit P3|PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER| ||AND THE PROPERTY SURROUNDING HIS PROPERTY| |Exhibit P4|TRUE COPY OF THE RELEVANT PAGE OF THE PRESENT| ||DATA BANK IN RELATION TO THE PETITIONER'S| ||PROPERTY| |Exhibit P5|TRUE COPY OF THE APPLICATION DATED 19.11.2021| ||FILED IN FORM NO. 5 OF THE KERALA| ||CONSERVATION OF PADDY LAND AND WET LAND| ||RULES, 2008| |Exhibit P6|TRUE COPY OF THE LETTER DATED 25.11.2021| ||ISSUED BY THE 1ST RESPONDENT IN THIS REGARD| ||TO THE 2ND RESPONDENT| |Exhibit P7|TRUE COPY OF THE REPORT DATED 07.12.2021 OF| ||THE KERALA STATE REMOTE SENSING AND| ||ENVIRONMENT CENTRE (KSRSEC) TO 2ND RESPONDENT| |Exhibit P8|TRUE COPY OF THE REPORT DATED NIL SENT BY THE| ||2ND RESPONDENT TO THE 1ST RESPONDENT| |Exhibit P9|TRUE COPY OF THE ORDER DATED 07.05.2022| ||PASSED BY THE 1ST RESPONDENT| |Exhibit P10|TRUE COPY OF THE JUDGMENT DATED 09.03.2023 IN| ||W. P. (C). NO. 34445/2022 PASSED BY THIS| ||HON'BLE COURT| |Exhibit P11|TRUE COPY OF THE ORDER DATED 08.05.2023| ||PASSED BY THE 1ST RESPONDENT| |Exhibit P12|TRUE COPY OF THE REVISED ORDER DATED| ||15.06.2023 PASSED BY THE 1ST RESPONDENT|