Sunilkumar M. G v State of Kerala and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 WP(C) NO. 8909 OF 2024 ``` ## **`PETITIONER:`** ``` SUNILKUMAR M. G AGED 54 YEARS S/O. M N GOPALAN (LATE), MUNDAMKULANGARA HOUSE, ATHEKAD, KOLAZHI.P.O., THRISSUR DISTRICT, PIN – 680 010. ``` ## **`BY ADV AVANEESH KOYIKKARA`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001.`** - **`2 DISTRICT COLLECTOR COLLECTORATE, THRISSUR, CIVIL STATION, AYYANTHOLE POST, THRISSUR DISTRICT, PIN – 680 003.`** - **`3 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, THRISSUR, AYYANTHOLE POST, THRISSUR DISTRICT, PIN – 680 003.`** - **`4 LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENER AGRICULTURAL OFFICE, KRISHI BHAVAN, KOLAZHY, POTTORE, M G KAVU P.O., THRISSUR DISTRICT, PIN – 680 581.`** - **`5 AGRICULTURAL OFFICER KRISHI BHAVAN, KOLAZHY, POTTORE, M G KAVU P.O., THRISSUR DISTRICT, PIN – 680 581.`** ``` WP(C).No.8909 OF 2024 ``` ``` 2 ``` |**`6`**|**`TAHSILDAR`**| |---|---| ||**`TALUK OFFICE, THRISSUR,`**| ||**`TOWN HALL, WEST PALACE RD,`**| ||**`CHEMBUKKAV, THRISSUR,`**| ||**`PIN – 680 020.`**| |**`7`**|**`VILLAGE OFFICER`**| ||**`VILLAGE OFFICE,`**| ||**`KOLAZHY M G KAVU P.O.,`**| ||**`THRISSUR DISTRICT,`**| ||**`PIN – 680 581.`**| ||**`SMT.R.DEVI SHRI - GP`**| |**`THIS`**|**`WRIT PETITION (CIVIL) HAVING COME UP FOR`**| |**`ADMISSION`**|**`ON 06.03.2024, THE COURT ON THE SAME DAY`**| |**`DELIVERED`**|**`THE FOLLOWING:`**| ``` WP(C).No.8909 OF 2024 ``` ``` 3 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P5 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the absolute owner in possession of an extent of 27.34 Ares of land in Block No.520, Sy.No.433/8-1 of Kolazhy Village, Thrissur Taluk in Thrissur District. 3. According to the petitioner, the aforesaid property will not come within the ambit of paddy land or wet land as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act, 2008’). However, it is stated that the property is wrongly included in the Data Bank. The petitioner filed Ext.P3 application in Form 5 under Rule 4(d) of the Kerala Conservation of ``` WP(C).No.8909 OF 2024 ``` ``` 4 ``` Paddy Land and Wetland Rules, 2008 (for short, ‘the Rules’) 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 Agricultural Officer has reported that, since the land is not fully converted before 2008, the LLMC has recommended to retain the subject land in the Data Bank. 4. The petitioner has filed this writ petition challenging 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 contended that the Revenue Divisional Officer has not made any independent assessment of the report of the KSRSEC before disposing of Form 5 application to ascertain the exact nature 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 ``` WP(C).No.8909 OF 2024 ``` ``` 5 ``` of the property as on the date of coming into force of the Act, 2008. Rule 4 (4E) of the Rules 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. On a perusal of Ext.P5, it is evident that, without any independent assessment of the nature of property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has relied solely upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. 6. This Court had held in the decision in **Arthasasthra Ventures (India) LLP v. State of** ``` WP(C).No.8909 OF 2024 ``` ``` 6 ``` **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, 2008 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 the 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 lands or that it will adversely affect sustenance of wetlands in the ``` WP(C).No.8909 OF 2024 ``` ``` 7 ``` area and in the absence of such findings, the impugned order is unsustainable. 7. In **Aparna Sasi Menon v. Revenue Divisional Officer** [2023 (6) KHC 83], this Court has held 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 and feasible. 8. 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. None of the parameters for consideration of Form 5 application has been taken into account while passing the impugned order. 9. I find that there is total non application of mind on the part of the RDO in issuing Ext.P5. Accordingly, I set aside Ext.P5 with a direction to the ``` WP(C).No.8909 OF 2024 ``` ``` 8 ``` 3[rd] respondent, the Revenue Divisional Officer to reconsider Ext.P3 application in Form 5 and take a decision in the matter on the basis of Ext.P6 KSRSEC report and the observation of this Court and the binding precedents within a period of two months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition along with a copy of this judgment before the 3[rd ] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR ``` WP(C).No.8909 OF 2024 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1THE COPY OF THE TAX RECEIPT ISSUED BY THE KOLAZHY VILLAGE OFFICE DATED 25.04.2023. EXHIBIT P2A COPY OF THE RELEVANT PAGES OF THE DATA BANK REGISTER PUBLISHED IN GAZETTE DATED 21.01.2021. ``` ``` EXHIBIT P3A COPY OF THE FORM.5 APPLICATION SUBMITTED BEFORE THE 3RD RESPONDENT FOR EXCLUDING PETITIONER'S PROPERTY FROM DATA BANK DATED 14.09.2021. ``` ``` EXHIBIT P4A COPY OF THE REPORT OF THE AGRICULTURE OFFICER/LLMC DATED 05.01.2022. EXHIBIT P5THE TRUE COPY OF THE ORDER NO.(K.DIS) D1- 15278/2021 DATED 24.02.2022 ISSUED BY THE 3RD RESPONDENT. ``` ``` EXHIBIT P6A COPY OF THE KSREC REPORT ALONG WITH COVERINGLETTERNO.A-172/2015/KSREC/ 004935/22 DATED 06.06.2022. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**