Sasi V v. State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 WP(C) NO.589 OF 2024 ``` ## **`PETITIONER:`** ``` SASI V, , GED 73 YEARS ``` ``` S/O VASU, SABITHABHAVAN, PADINJATTUMKARA NORTH, THIRUMALABHAGOM P.O. PIN ALAPPUZHA, KERALA, PIN - 688540 ``` ``` BY ADVS. SHERRY J. THOMAS JOEMON ANTONY ANTONY NILTON REMELO ``` ## **`RESPONDENTS:`** - **`1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE DISTRICT COLLECTOR, COLLECTORATE ALAPPUZHA, BESIDE ZILLA PANCHAYATH OFFICE, CIVIL STATION WARD, ALAPPUZHA, KERALA, PIN - 688001`** - **`3 THE REVENUE DIVISIONAL OFFICER ALAPPUZHA, REVENUE DIVISIONAL OFFICE, KIDANGAMPARAMP, THONDAKULANGARA, THATHAMPALLY, ALAPPUZHA, KERALA, PIN - 688013`** - **`4 THE THAHSILDAR (LR), CHERTHALA TALUK OFFICE,,POLICE STATION ROAD, NEAR MINI CIVIL STATION, CHERTHLA,ALAPPUZHA, KERALA, PIN - 688524`** - **`5 THE AGRICULTURAL OFFICER, KRISHIBHAVAN KUTHIATHODU, UNNAMED ROAD, KUTHIATHODU, KODAMTHURUTH, ALAPPUZHA, KERALA, PIN - 688533`** W.P.(C) No.589 of 2024 2 - **`6 THE VILLAGE OFFICER, KUTHIATHODU VILLAGE OFFICE, NH 47, KUTHIATHODU, THURAVOOR, ALAPPUZHA, KERALA-, PIN - 688533`** - **`7 THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER, KRISHIBHAVAN, KRISHIBHAVAN KUTHIATHODU, UNNAMED ROAD, KUTHIATHODU, KODAMTHURUTH, ALAPPUZHA, KERALA-, PIN – 688533`** ``` BY SRI.GORDEN, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.589 of 2024 3 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P4 order, whereby Ext.P3 Form 5 application submitted by him has been rejected by the 3[rd] respondent/Revenue Divisional Officer [RDO] on the basis of the report of the Agricultural Officer. ``` ``` 2. Petitioner is the owner in possession of an extent of 12.14 Ares of land comprised in Sy.No.17/1-5-6-1 of Kuthiathodu Village, Cherthala Taluk. ``` ``` 3. According to the petitioner, 1.21 Ares of land from the aforesaid 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 (for brevity, ‘the Act, ``` 4 W.P.(C) No.589 of 2024 ``` 2008’). However, it is stated that the property is wrongly included in the Data Bank. The petitioner filed Ext.P3 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 before the 3[rd] respondent/RDO, and the RDO rejected the same by Ext.P4 order stating that as per the report of the Agricultural Officer, all four sides of property are surrounded by paddy fields. The learned counsel for the petitioner submits that apart from the report of the Agricultural Officer, there are no other data or documents or any piece of evidence on the basis of which the RDO has come to the conclusion that the property cannot be removed from the Data Bank. ``` ``` 4. The petitioner has filed this writ petition challenging Ext.P4 contending,inter alia, that the same is vitiated by non application of mind ``` 5 W.P.(C) No.589 of 2024 ``` 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’] to ascertain the status 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. On a perusal of Ext.P4, it is evident that, without any independent assessment of the nature of the property as on the date of coming into force of the Act, 2008, the RDO has relied solely upon the report of the Agricultural Officer and LLMC to refuse to remove the property from the Data Bank. ``` W.P.(C) No.589 of 2024 6 ``` 6. This Court has held in the decision 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 the competent authority, ``` W.P.(C) No.589 of 2024 7 ``` 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. ``` ``` In spite of the above categorical declarations by this Court 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. Accordingly I find that Ext.P4 order cannot be sustained and I set aside the same, with a direction to the 3[rd] respondent, the RDO, to reconsider Ext.P3 application in accordance with law and take a ``` W.P.(C) No.589 of 2024 8 ``` decision in the matter after obtaining KSRSEC report at the expense of the petitioner, 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 the judgment, along with the copy of the writ petition, before the 3[rd]respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/09/02/2024 ``` W.P.(C) No.589 of 2024 9 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` ``` THE TRUE COPY OF THE LAND TAX RECEIPT OF THE PETITIONER DATED 14-06-2023 ``` ``` Exhibit P2 ``` ``` THE TRUE COPY OF THE OWNERSHIP CERTIFICATE IN CONNECTION WITH THE BUILDING ISSUED BY THE PANCHAYATH DATED 02/10/2023 ``` ``` Exhibit P3 ``` ``` THE TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER DATED 01- 07-2023 ``` ``` Exhibit P4 ``` ``` THE TRUE COPY OF THE PROCEEDINGS OF 3RD RESPONDENT DATED 08-12-2023 ``` ``` Exhibit P5 ``` ``` THE TRUE COPY OF THE PHOTOGRAPH WHICH SHOWS THE BUILDING AND THE CONVERTED LAND ```