Tijo Joseph v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945** # **WP(C) NO. 10821 OF 2023** ## **PETITIONER :** **MR. TIJO JOSEPH, AGED 51 YEARS,** **AT KONDODICKAL HOUSE, IRAVICHIRA P.O., THOTTACKAD P.O., KOTTAYAM, PIN – 695 605** **BY ADVS. P.ABRAHAM CHERIAN NIMMY K. JOSEPH AJAI BABU JOE JOSEPH THUSHARA.K** ## **RESPONDENTS :** - **1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVT: REVENUE DEPARTMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 DISTRICT COLLECTOR, HGRM+3CH, KOTTAYAM - KUMILY RD, COLLECTORATE, KOTTAYAM, KERALA, PIN - 686002** - **3 REVENUE DIVISIONAL OFFICER, KOTTAYAM COLLECTORATE, KOTTAYAM DISTRICT, PIN – 686 002** - **4 THASILDHAR, CGVQ+874, KACHERY RD, OPPOSITE GOVERNMENT MODEL HSS, CHANGANASSERY, KERALA, PIN - 686101** - **5 VILLAGE OFFICER, THOTTAKKAD VILLAGE OFFICE, MADAPPALLY BLOCK, THOTTAKKAD P.O., KOTTAYAM, PIN – 686 539** **WP(C) NO. 10821 OF 2023** 2 - **6 LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY THE CONVENOR/AGRICULTURAL OFFICER, VAKATHANAM PANCHAYAT, VAKATHANAM P.O., KOTTAYAM, PIN – 686 538** **BY SMT.DEVISHRI R., GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 10821 OF 2023** 3 ## **BECHU KURIAN THOMAS, J.** =-=-=-=-=-=-=-=-=-=-=-=-=-= ## **W.P.(C) No.10821 of 2023** =-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 13[th] day of October, 2023** ## **JUDGMENT** Petitioner, is the owner of 38 Ares of land in Resurvey No.133/6 of Block No.13 of Thottakkadu Village, Changanacherry Taluk, Kottayam District. Challenge is against Ext.P12 order of the Sub Collector, Kottayam, whereby the petitioner’s request to remove his land from the data bank was refused. 2. Petitioner alleges that his land was converted prior to the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, the Act), and it is presently a 'dry land'. However, when the data bank was prepared under Section 5(4)(i) of the Act, his land was wrongly included in it. Since the petitioner requires the land for other purposes, he submitted an application in Form-5, invoking Rule 4(4d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for short, the Rules). 3. By the impugned order, petitioner’s application was rejected by the Sub Collector, Kottayam. Petitioner alleges that the rejection was based solely on the report of the Agricultural Officer, without any site inspection and without any application of mind and is hence not a **WP(C) NO. 10821 OF 2023** 4 speaking order. 4. I have heard Sri. Abraham Cherian, learned counsel for the petitioner and Smt.Devishri R., the learned Government Pleader and have also perused Ext.P12 order passed by the Sub Collector, Kottayam. 5. Petitioner’s application in Form 5 of the Rules was rejected relying on the Agricultural Officer’s report. The said report stated that petitioner’s land need not be excluded from the data bank. Petitioner asserted that the surrounding areas are well-developed with multiple buildings and also that the impugned order had not even referred to the suitability of the land for paddy cultivation. 6. In the decision in **Arthasasthra Ventures (India) LLP v. State of Kerala** [2022 (7) KHC 591] and in **Muraleedharan Nair R. v. Revenue Divisional Officer** [2023 (4) KHC 524], this Court had observed that the RDO cannot merely follow the report of the Agricultural Officer or the LLMC without any independent assessment of the status of the land. This Court had also observed that while considering an application filed under Form 5, the Authority must consider whether the removal of the property from the data bank will affect paddy cultivation in the land and also whether it will affect the nearby paddy fields. Similarly, in the decision in **Aparna Sasi Menon v. Revenue Divisional Officer Irinjalakuda** [2023 (6) KHC 83] it has been observed that when the competent authority considers a Form-5 application, the predominant **WP(C) NO. 10821 OF 2023** 5 consideration should be whether the land which is sought to be excluded from data bank is one where paddy cultivation is possible and feasible including the existence of irrigation facilities. 7. A perusal of the impugned order reveals that the aforementioned specific aspects have not been adverted to, and instead, the application has been rejected solely on the basis of the report of the Agricultural Officer. The Sub Collector could have atleast perused the scientific data for deciding the matter by directing the petitioner to apply for the same or by conducting a site visit. There is also no finding that the land is suitable for paddy cultivation and whether there are any paddy lands in the nearby areas. Since the order is bereft of material particulars and is not issued on any perceivable data, it cannot be said to be a reasoned order. Discernibly, there is no independent application of mind to the relevant circumstances, and hence, the impugned order is liable to be set aside and a fresh consideration be made. 8. In the impugned order, it is stated that the subject property is a low lying area and has a fish pond apart from a wetland along the boundary of petitioner’s property and also a thodu through the boundary. The existence of a pond by itself in a dry land cannot be treated as a paddy land since by the definition of the word 'paddy land', the pond must be an allied construction of the paddy land. If the surrounding properties are not paddy land then the existence of a pond cannot make **WP(C) NO. 10821 OF 2023** 6 the area where the pond is situated into a paddy land. 9. In the above circumstances, Ext.P12 is quashed and the 3[rd] respondent is directed to reconsider the Form 5 application submitted by the petitioner and issue fresh orders, after considering the report of KSREC, if applied and obtained and other relevant factors mentioned in rule 4(4f) of the Rules. The order, as directed above, shall be issued within a period of three months from the date of receipt of a copy of this Judgment. The writ petition is allowed as above. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **WP(C) NO. 10821 OF 2023** 7 ## **APPENDIX OF WP(C) 10821/2023** **PETITIONER'S EXHIBITS :** **Exhibit P1 A TRUE COPY OF THE SALE DEED DATED 18.12.2013 EXECUTED BY VARGHESE AND DEVASYA IN FAVOR OF THE PETITIONER** **Exhibit P2 A TRUE COPY OF THE PROCEEDING OF THE SUBCOLLECTOR DATED 20.11.1995** **Exhibit P3 A TRUE COPY OF THE REPORT DATED 12.09.2013 OF THE 4TH RESPONDENT** - **Exhibit P4 A TRUE COPY OF THE REPORT DATED 24.01.2014 OF THE 3RD RESPONDENT SUBMITTED TO THE 2ND RESPONDENT** - **Exhibit P5 A TRUE COPY OF THE LETTER DATED 29.08.2014 OF THE 2ND RESPONDENT** **Exhibit6 A TRUE COPY OF THE GAZETTE NOTIFICATION NO. K-13430/08 DATED 06.03.2010, ISSUED BY THE 3RD RESPONDENT** - **Exhibit P7 THE PHOTOGRAPHS ILLUSTRATING THE NATURE OF THE PETITIONER'S SAID LAND** **Exhibit P8 A TRUE COPY OF THE SURVEY MAP OF THE SAID LAND** **Exhibit P9 A TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK UNDER G.O. NO. SC 4-526/2021 DATED 5.2.2021 FOR VAKATHANAM GRAMA PANCHAYATH PUBLISHED BY THE 6TH RESPONDENT** **Exhibit P10 A TRUE COPY OF THE FORM 5 APPLICATION DATED 29.09.2021 BEFORE THE 3RD RESPONDENT UNDER RULE 4D OF THE KERALA CONSERVATION OF PADDY LAND AND WET LAND RULES, 2015** **WP(C) NO. 10821 OF 2023** 8 **Exhibit P11** **Exhibit P12** **A COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 05.04.2022** **A TRUE COPY OF THE ORDER DATED 29.08.2022 OF THE 3RD RESPONDENT**