Sunilkumar A.B v. District Collector and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **WEDNESDAY, THE 24[TH] DAY OF JANUARY 2024 / 4TH MAGHA, 1945** ## **WP(C) NO. 2924 OF 2024** ## **PETITIONER:** **SUNILKUMAR A.B, AGED 44 YEARS S/O BALAN, ADOOR HOUSE, VIYUR P.O., THRISSUR DISTRICT,, PIN - 680010** **BY ADVS. C.A.JOJO SWATHY S.** ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR AND OTHERS**| |---|---| ||**OFFICE OF THE DISTRICT COLLECTOR,**| ||**AYYANTHOLE.P.O. THRISSUR, PIN - 680001**| |**2**|**THE CHAIRMAN OF DISTRICT LEVEL MONITORING COMMITTEE**| ||**REPRESENTED BY THE R D O, OFFICE OF THE R D O,**| ||**AYYANTHOLE.P.O. THRISSUR,, PIN - 680001**| |**3**|**THE VILLAGE OFFICER**| ||**POTTOR VILLAGE OFFICE, P O,**| ||**THRISSUR,, PIN - 680581**| |**4**|**THE AGRICULTURAL OFFICER**| ||**KRISHI OFFICE, KOLAZHY P.O,**| ||**THRISSUR,, PIN - 680010**| |**5**|**THE SECRETARY**| ||**'KOLAZHY GRAMA PANCHAYATH, KOLAZHY P.O,**| ||**THRISSUR,, PIN - 680010**| |**6**|**PRINCIPAL KRISHI 0FFICER**| ||**OFFICE OF THE PRINCIPAL KRISHI OFFICER,**| ||**CHEMBUKKAVU P.O, THRISSUR, PIN – 680005**| |***7**|**THE REVENUE DIVISIONAL OFFICER,**| ||**THRISSUR**| ||**(*THE REVENUE DIVISIONAL OFFICER, THRISSUR IS SUO MOTU**| **WP(C) NO. 2924 OF 2024 : 2 :** **IMPLEADED AS THE ADDITIONAL 7TH RESPONDENT AS PER ORDER DATED 24.01.2024)** **SMT.DEVISREE, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 2924 OF 2024 : 3 :** ## **JUDGMENT** The Revenue Divisional Officer, Thrissur is _suo motu_ impleaded as the additional 7[th] respondent. 2. The petitioner has approached this Court aggrieved by Ext.P5 whereby Form 5 application submitted by the petitioner has been rejected by the Revenue Divisional Officer solely relying on the report of the Agricultural Officer. 3. The petitioner is the absolute owner in possession of 4.991 cents of land comprised in Sy.No.345/4-3 in Block No.053 of Pottor Village. 4. The petitioner approached the District Level Monitoring Committee (DLMC) for permission to construct a house in the said property and the DLMC, vide Ext.P3, permitted the petitioner to **WP(C) NO. 2924 OF 2024 : 4 :** construct a house on certain conditions. However, the petitioner could not proceed with the construction. 5. Since the status of the property is shown as 'paddy land' in the Data Bank, the petitioner filed Ext.P4 application in Form 5 under the provisions of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 before the Revenue Divisional Officer to remove the said land from the Data Bank. The Revenue Divisional Officer, by Ext.P5, rejected the application on the basis of the report of the Agricultural Officer that the property was not converted before 2008 and therefore, it need not be removed from the Data Bank. This writ petition is filed challenging Ext.P5 contending, _inter alia,_ that the same is vitiated by non application of mind, **WP(C) NO. 2924 OF 2024 : 5 :** without reference to Ext.P3 DLMC report and is against the provisions of the Act and the binding precedents of this Court. 6. Heard the learned counsel for the petitioner and the learned Government Pleader. In the nature of the order I propose to pass, notice to the 5[th] respondent is dispensed with 7. The relevant consideration for inclusion of the property as a paddy land or wetland is as to the nature of the property as on the date of coming into force of the Act of 2008. On a perusal of Ext.P5, 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 of 2008, the Revenue Divisional Officer has relied solely upon the report of the Agricultural Officer to refuse to **WP(C) NO. 2924 OF 2024 : 6 :** remove the property from the Data Bank. 8. 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. 9. 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 **WP(C) NO. 2924 OF 2024 : 7 :** decided not to remove the land from Data Bank. 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 Data Bank will adversely affect paddy cultivation in the land in question or in the nearby paddy land or that it will adversely affect sustenance of wetlands in the area and in the absence of such findings, the impugned order is unsustainable. 10. 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 **WP(C) NO. 2924 OF 2024 : 8 :** paddy cultivation is possible and feasible. 11. 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. Accordingly, Ext.P5 order cannot be sustained and I set aside the same, with a direction to the Revenue Divisional Officer to reconsider Ext.P4 application in Form No.5 and take a decision in the matter in the light of Ext.P3 and after obtaining the report of the KSRSEC at the expense of the petitioner and in accordance with law, 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 **WP(C) NO. 2924 OF 2024 : 9 :** KSRSEC report within a period of two weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of with the above direction. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB ## **WP(C) NO. 2924 OF 2024 : 10 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 A TRUE COPY OF THE MEDICAL REPORT ISSUED BY DR. VINAYAN K P DEPARTMENT OF NEUROLOGY AMRITA INSTITUTE OF MEDICAL SCIENCE KOCHI, DATED 17.07.2021 Exhibit P2 A TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE POTTOR VILLAGE OFFICER DATED 15.07.2023 Exhibit P3 A TRUE COPY OF THE ORDER NO. TA (2)2474/2016(S38) DATED 06.01.2017 ISSUED BY THE 2ND RESPONDENT Exhibit P4 A TRUE COPY OF THE FORM NO.5 DATED 01.11.2022 Exhibit P5 A TRUE COPY OF THE ORDER FILE NO.1736/2023 DATED 09.06.2023 BY 2ND RESPONDENT Exhibit P6 TRUE COPIES OF THE PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER WITH A VIEW OF ITS SURROUNDINGS**