Treesa Francis and Others v. Agricultural Officer, Kadamakkudy Krishi Bhavan, Kadamakkudy Local Level Monitoring Committee, Kadamakkudy Grama Panchayath and 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.5304 OF 2024 ``` ## **`PETITIONERS:`** - **`1 TREESA FRANCIS, AGED 71 YEARS W/O. LATE FRANCIS,MUZHAMGUMTHARA HOUSE, NOW AT MARIYA BHAVAN, KRISHNA SWAMY ROAD, ERNAKULAM DISTRICT, COCHIN, PIN - 682035`** - **`2 ANUP FRANCIS, AGED 45 YEARS S/O. LATE FRANCIS,MUZHAMGUMTHARA HOUSE, NOW AT MARIYA BHAVAN, KRISHNA SWAMY ROAD, ERNAKULAM DISTRICT, COCHIN, PIN - 682035`** - **`3 ANOJ FRANCIS, AGED 47 YEARS S/O. LATE FRANCIS, MUZHAMGUMTHARA HOUSE, MARIYA BHAVAN,KRISHNA SWAMY ROAD, COCHIN - 682 035, NOW RESIDING AT 9C, SKYLINE PLATINUM APARTMENT, RAJAJI ROAD, ERNAKULAM DISTRICT, COCHIN, PIN - 682035`** - **`4 ANIJA ANTONY, AGED 48 YEARS D/O. LATE FRANCIS, MUZHAMGUMTHARA HOUSE, NOW AT ARAYAMTHARA HOUSE,FELIX ROAD, THAMMANAM, ERNAKULAM DISTRICT, COCHIN, PIN - 682032`** ``` BY ADVS. DINESH R.SHENOY SILESH S. PRABHU JOMOL PIUS HELAN PAULOSE ``` ## **`RESPONDENTS:`** - **`1 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KADAMAKKUDY, CONVENOR, LOCAL LEVEL MONITORING COMMITTEE, KADAMAKKUDY GRAMA PANCHAYATH, KADAMAKKUDY P.O, ERNAKULAM DISTRICT, PIN - 682027`** W.P.(C) No.5304 of 2024 2 - **`2 THE VILLAGE OFFICER, VILLAGE OFFICE, KADAMAKKUDY, ERNAKULAM DISTRICT, PIN - 682027`** - **`3 THE PRESIDENT, KADAMAKKUDY GRAMA PANCHAYATH, KADAMAKKUDY,ERNAKULAM DISTRICT, PIN - 682027`** - **`4 THE SUB COLLECTOR, FORT KOCHI, O/O. SUB COLLECTOR, FORT KOCHI, KOCHI, ERNAKULAM DISTRICT, PIN - 682001`** - **`5 THE TAHSILDAR (LAND RECORDS), O/O.TAHSILDAR, KANAYANNUR, ERNAKULAM DISTRICT, COCHIN, PIN - 682001`** ``` BY SMT.DEEPA, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.5304 of 2024 3 ## **`JUDGMENT`** ``` Petitioners have approached this Court aggrieved by Ext.P6 order, whereby Form 5 application submitted by their predecessor-in- interest has been rejected by the 4[th] respondent/ Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioners are the owners in possession of a total extent of 31.10 Ares of land comprised in Re-Sy.Nos.457/5 and 457/6 in Block No.1 of Kadamakkudi Village, Kanayannur Taluk, Ernakulam District. ``` ``` 3. According to them, 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, 2008’). However, the property is wrongly included in the Data Bank. The predecessor-in- ``` W.P.(C) No.5304 of 2024 4 ``` interest of the petitioners filed an application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 [for brevity, ‘the Rules, 2008’] before theRDO to remove the said land from the Data Bank. The same has been rejected by the RDO vide Ext.P6 order stating that the extent of 31.10 Ares cannot be removed from the Data Bank on the basis of the report of the Agricultural Officer and the recommendation of the Local Level Monitoring Committee [LLMC]. ``` ``` 4. The petitioners have filed this writ petition challenging Ext.P6 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 RDO should have called for a report from the Kerala State Remote Sensing ``` W.P.(C) No.5304 of 2024 5 ``` and Environment Centre [for short, ‘the KSRSEC’] before disposing of the 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 wetland is as to the nature of the property as on the date of coming into force 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 ``` W.P.(C) No.5304 of 2024 6 ``` Scientific Technological Institutions and pass appropriate orders on the application. On a perusal of Ext.P6, 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 refused to remove the property from the Data Bank. ``` ``` 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 as on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. In Muraleedharan Nair v. Revenue Divisional Officer [2023 (4) KLT 270], this Court has held that when ``` W.P.(C) No.5304 of 2024 7 ``` 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, 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 Aparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83], this Court has held that the predominant factor for determination while considering the Form-5 application should be whether the land which is ``` W.P.(C) No.5304 of 2024 8 ``` sought to be excluded from Data Bank is one where paddy cultivation is possible and feasible. ``` ``` In spite of the categorical declarations by this Court in the decisions cited above, Ext.P4 application has been rejected, 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 a Form 5 application has been taken into account while passing the impugned order. Accordingly, I find that Ext.P6 order cannot be sustained and I set aside the same, with a direction to the 4[th] respondent, the RDO, to reconsider the application in Form 5 in accordance with law and take a decision in the matter after considering the KSRSEC report to be obtained at the expense of the petitioners and other relevant factors mentioned in Rule 4(4F), within a period of two months from ``` W.P.(C) No.5304 of 2024 9 ``` the date of receipt of the report of the KSRSEC. The petitioners 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 petitioners shall produce a copy of the writ petition along with a copy of the judgment before the 4[th] respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/04/03/2024 ``` W.P.(C) No.5304 of 2024 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ## **`Exhibit P1`** ``` TRUE PHOTOCOPY OF NOTICE ISSUED TO THE PETITIONER'S PREDECESSOR FRANCIS UNDER FORM 9(B) OF THE LAND ACQUISITION ACT 1894 IN LAC NO.30/05 DATED 1/2/2006. ``` - **`Exhibit P2`** - **`TRUE PHOTOCOPY OF FORM NO.9(B) DATED 1/9/2006 ISSUED TO THE PETITIONER'S PREDECESSOR FRANCIS IN LAC NO.29/2005.`** - **`Exhibit P2(a)`** - **`TRUE PHOTOCOPY OF FORM 9(B) DATED 1/9/2006 IN LAC NO.28/2005`** - **`Exhibit P3`** - **`TRUE PHOTOCOPY OF THE RESIDENCE CERTIFICATE DATED 5/5/2016 ISSUED TO THE FIRST PETITIONER BY THE SECRETARY, KADAMAKKUDY GRAMA PANCHAYATH.`** - **`Exhibit P4 TRUE PHOTOCOPY OF APPLICATION DATED 2/7/2021 IN FORM NO.V RULE 4(D) OF THE KERALA CONSERVATION OF PADDY LANDS & WET LANDS RULES.`** - **`Exhibit P5 TRUE PHOTOCOPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 9/5/2022 SUBMITTED IN RESPECT OF THE PETITIONERS PROPERTY.`** - **`Exhibit P6 TRUE PHOTOCOPY OF ORDER DATED 18/10/2023 ISSUED BY SUB COLLECTOR, FORT KOCHI.`** - **`Exhibit P7`** - **`TRUE PHOTOCOPY OF LETTER DATED 17/2/2023 ISSUED BY THE VILLAGE OFFICER, KADAMAKKUDY, TOGETHER WITH ACCOMPANYING SKETCH.`** W.P.(C) No.5304 of 2024 11 ## **`Exhibit P8`** ``` Exhibit P9 ``` ``` Exhibit P10 ``` ``` Exhibit P11 ``` ``` Exhibit P12 ``` ``` Exhibit P13 ``` ``` TRUE PHOTOCOPY OF THE SKETCH OF THE ENTIRE PROPERTIES OF THE PETITIONERS ABUTTING THE ICTT EXPRESS WAY ON ITS SOUTH. ``` ``` TRUE PHOTOCOPY OF THE REPLY AND SURVEY SKETCH OF FIELD NO.457 OF KADAMAKKUDY VILLAGEISSUEDBYTHEPUBLIC INFORMATION OFFICER 27/11/2023. ``` ``` TRUE GOOGLE EARTH PHOTOGRAPH OF THE PETITIONERS PROPERTY AS ON 26/12/2005 ``` ``` TRUE GOOGLE EARTH PHOTOGRAPH OF THE PETITIONERS PROPERTY AS ON 26/2/2007. ``` ``` TRUE GOOGLE EARTH PHOTOGRAPH OF THE PETITIONERS PROPERTY AS ON 21/12/2009 ``` ``` TRUE GOOGLE EARTH PHOTOGRAPH OF THE PETITIONERS PROPERTY AS ON 3/2/2017 ```