Unnikrishnan v. Sub Divisional Magistrate, Ottapalam, Palakkad District and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, ``` ``` 1945 ``` ## `WP(C) NO. 10166 OF 2024` ## `PETITIONER:` ``` UNNIKRISHNAN, AGED 60 YEARS, RAMANKUTTY GUPTHAN, ROHINI, PULIKKAPARAMBIL, KATAMPAZHIPPURAM P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT- REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SHAJAHAN K, AGED 42 YEARS, SON OF MUHAMMED, RESIDING AT KAIPPANGANI HOUSE, POMBILAYA P.O., NELLAYA, OTTAPALAM TALUK, PALAKKAD DISTRICT-679335, BY ADVS. P.M.ZIRAJ IRFAN ZIRAJ ``` ## `RESPONDENTS:` - `1 THE SUB DIVISIONAL MAGISTRATE OTTAPALAM, PALAKKAD DISTRICT, PIN - 679101` - `2 THE LOCAL LEVEL MONITORING COMMITTEE KATAMPAZHIPPURAM GRAMA PANCHAYATH, PALAKKAD DISTRICT-678633 REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN, KATAMPAZHIPPURAM PALAKKAD, PIN - 678633` - `3 AGRICULTURAL OFFICER, KRISHI BHAVAN, KATAMPAZHIPPURAM PALAKKAD DISTRICT - 678633` - `4 THE VILLAGE OFFICER, KATAMPAZHIPPURAM -2 VILLAGE, PALAKKAD DISTRICT, PIN - 678633` 2 W.P(C).10166/2024 ## `OTHER PRESENT:` ``` SMT.DEVI SHRI.R, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P(C).10166/2024 3 ## **P. V. KUNHIKRISHNAN, J. ------------------------------------------W.P(C).No.10166 of 2024 ------------------------------------------Dated this the 14[th] day of March, 2024** ## **JUDGMENT** The above Writ Petition is filed with the following prayers: _1. Issue a writ of certiorari or any other appropriate writ, direction or order by call for the records leading to the issuance of exhibit P1 order and set aside the same as illegal._ _2. Issue a writ of mandamus or any other appropriate writ, orders or direction to the first respondent to reconsider the application of petitioner which leads to exhibit P1 order afresh after giving an opportunity to the petitioner for personal hearing in the subject and after assessing the KSREC report and image in its letter and spirit and thereby grant permission to the petitioner to use his land for other purposes than paddy cultivation._ _3. Such other writ, order or direction which this Honorable Court may deem fit and proper in the interest of justice and circumstances of the case. And_ W.P(C).10166/2024 4 _4. Dispense with filing of translation of vernacular documents produced along with writ petition_ **==> picture [32 x 13] intentionally omitted <==** 2. The petitioner is aggrieved because Form-5 application submitted by the petitioner as per the Kerala Conservation of Paddy Land and Wet Land Act 2008 [for short, ‘the Act’] is rejected as per Ext.P1 non speaking order, without giving an opportunity of hearing to the petitioner is the submission. According to the petitioner, the 1[st] respondent, without conducting an enquiry or inspection and without verifying the statutory image and the report issued by the KSREC passed Ext.P1 order. The land of the petitioner is a converted paddy land and this conversion was much prior to the introduction of the Act 2008 is the submission. It is also submitted that, there is building and tress in the property and that the property is not suitable for any kind of paddy cultivation. Even though the land is a converted paddy land, the same has been classified as nilam in the village records and basic tax register and W.P(C).10166/2024 5 because of the said wrong entry, the property included in the data bank also is the submission. Hence the petitioner submitted an application to remove the land from the data bank and the application of the petitioner was rejected by the 1[st] respondent by Ext.P1 order. Aggrieved by the same, this Writ Petition is filed. 3. Heard learned counsel appearing for the petitioner and the learned Government Pleader. 4. This Court perused Ext.P1 order. Ext.P1 is not a speaking order. Except relying on the report of the Agricultural Officer, the contention of the petitioner is not adverted while passing Ext.P1 order. In **Muraleedharan Nair v. Revenue Divisional Officer** [2023 (4) KLT 270], this Court observed that, it will not be sufficient for the Revenue Divisional Officer to dismiss the application simply stating that the Local Level Monitoring Committee has decided not to remove the land from the Data Bank. 5. 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 the Data Bank will adversely affect paddy cultivation in the land in question and W.P(C).10166/2024 6 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. 6. In **Aparna Sasi Menon v. Revenue Divisional Officer** [2023 (5) KLT 432], this Court observed 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 or feasible. 7. According to the petitioner, the impugned order is passed in violation of the provisions of the Kerala Conservation of Paddy and Wet Land Act, 2008. It is also submitted that the Revenue Divisional Officer has not applied his mind and simply accepted the report. It is also submitted that, the KSREC report is not properly considered by the Revenue Divisional Officer. The contention of the petitioner is that the status of the land as on 12.08.2008 is not ascertained properly as per scientific process. 8. After going through the impugned order, I am of the considered opinion that, there is some force in the argument of the W.P(C).10166/2024 7 petitioner. The impugned order is not a speaking order. The contentions of the petitioner is not adverted by the 1[st] respondent while passing the order. Therefore, I am of the considered opinion that the impugned order is to be set aside. Therefore, this Writ Petition is disposed of with the following directions: a) Ext.P1 order is set aside. b) The 1[st] respondent is directed to reconsider Form 5 application submitted by the petitioner, as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. c) The petitioner is free to submit an application before the appropriate authority for getting the KSREC report within two weeks from the date of receipt of a copy of this judgment and if such an application is filed, the authority concerned will do the needful to obtain the same, in accordance with law. If KSREC report is available, the same will be considered by the 1[st ] respondent. If fresh KSREC report is called for, the Revenue Divisional Officer need to consider the Form 5 application only within a period of three months from the date of receipt of the report from KSREC. W.P(C).10166/2024 8 d) The petitioner will produce the certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 1[st] respondent for compliance. Sd/- **P. V. KUNHIKRISHNAN JUDGE** Sbna/ W.P(C).10166/2024 9 ## `APPENDIX OF WP(C) 10166/2024` ## `PETITIONER EXHIBITS` ``` Exhibit P1TRUE COPY OF THE ORDER NO.2821 OF 2023 DATED 14.12.2023 ISSUED BY THE FIRST RESPONDENT ``` ``` Exhibit P2TRUE COPY OF THE ORDER DATED 19.5.2002 ISSUED BY THE FIRST RESPONDENT TO MR.KUTTAN, SON OF NARAYANAN GUPTHA UNDER THE PROVISIONS OF KERALA LAND UTILIZATION ORDER ``` ``` Exhibit P3TRUE COPY OF THE LAND RELINQUISHMENT APPLICATION WITHOUT DATE SUBMITTED BY THE PETITIONER FOR WIDENING THE PWD ROAD ``` ``` Exhibit P4TRUE PHOTOGRAPHS OF THE PROPERTY OF PETITIONERALONGWITHADJACENT PROPERTIES ```