Suby v. Revenue Divisional Officer, Idukki & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945** **WP(C) NO. 7139 OF 2024** ## **PETITIONER:** **SUBY, AGED 64 YEARS D/O KOCHUTHAMBI RAVUTHAR, VANIYAPURAYIL VEEDU, IDAVETTI P.O, IDUKKI DISTRICT,, PIN - 685588** **BY ADV T.K.AJITHKUMAR (VALATH)** ## **RESPONDENTS:** - **1 REVENUE DIVISIONAL OFFICER, IDUKKI OFFICE OF THE REVENUE DIVISIONAL OFFICER, PAINAVU P.O, KUYILIMALA,, PIN - 685603** - **2 LOCAL LEVEL MONITORING COMMITTEE THODUPUZHA MUNICIPALITY REPRESENTED BY ITS CONVENER/AGRICULTURAL OFFICER, THODUPUZHA MUNICIPAL KRISHI BHAVAN, IDUKKI DISTRICT,, PIN - 685608** - **3 AGRICULTURAL OFFICER THODUPUZHA MUNICIPAL KRISHI BHAVAN, IDUKKI DISTRICT,, PIN - 685608** ## **SR.GP.SMT.K.AMMINIKUTTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 7139 OF 2024 : 2 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P5 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 45.53 Ares of land in Sy.No.1385/7-2-7 of Karikode Village, Thodupuzha Taluk. 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 the Data Bank prepared under Section 5(4)(i) of the Act, 2008 as **WP(C) NO. 7139 OF 2024 : 3 :** 'converted land'. The petitioner therefore filed Ext.P3 application in Form 5 under the proviso to Section 5(4)(i) of the Act, 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.P5 stating that the Village Officer has reported that the property is included in the Data Bank as converted land and that there is no paddy cultivation or building in the property and the property is lying as water logged fallow land. 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 and the binding precedents of this Court. It is also stated that the property being converted land ought not to have been included in the Data Bank prepared **WP(C) NO. 7139 OF 2024 : 4 :** under Section 5(4)(i) of the Act. The learned counsel for the petitioner also refers to the decision of this Court in **Basil** v. **Revenue Divisional Officer & Others** [2024 (1) KLT 6]. Section 5 of the Act, 2008 and Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules 2008 deal with the preparation of Data Bank. The said provisions provide that the Data Bank shall contain only the details of cultivable paddy land and wetland. The property of the petitioner is admittedly converted land which ought not to have been included in the Data Bank. However, the same has been included in the Data Bank. The petitioner filed Form 5 application for removal of the land from the Data Bank. The same has been rejected by Ext.P5. 5. The relevant consideration for inclusion of a **WP(C) NO. 7139 OF 2024 : 5 :** property in the Data Bank is whether the property was a cultivable paddy land as on the date of commencement 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 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. Going by Ext.P5, the RDO has not entered a finding as to whether the property was a paddy land as the date of commencement of the Act, **WP(C) NO. 7139 OF 2024 : 6 :** 2008. 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 **WP(C) NO. 7139 OF 2024 : 7 :** 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. 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 **WP(C) NO. 7139 OF 2024 : 8 :** Court in the decisions cited above, the petitioner's application has been rejected, solely relying on the report of the 3[rd] respondent as well as the Village 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 consideration while passing the impugned order. Accordingly, I find that Ext.P5 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider the application 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 **WP(C) NO. 7139 OF 2024 : 9 :** 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. 7139 OF 2024 : 10 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 THE POSSESSION CERTIFICATE DATED 8-11-2022 ISSUED FROM THE KARIKODE VILLAGE OFFICE** **Exhibit P2 THE TRUE PHOTO COPY OF THE RELEVANT PAGE OF THE DATA BANK Exhibit p3 THE TRUE PHOTO COPY OF THE APPLICATION DATED 22-10-2022 IN FORM NO.5, SUBMITTED BY THE PETITIONER** **Exhibit p4 THE TRUE PHOTO COPY OF THE REPORT F THE VILLAGE OFFICER DATED 27-2-2023 Exhibit p5 THE TRUE PHOTO COPY OF THE ORDER DATED 15-112023 ISSUED BY THE 1ST RESPONDENT**