V. Sreedharan v. Revenue Divisional Officer, Palakkad; Village Officer, Thathamangalam; Agricultural Officer for the Chittur-Thathamangalam Municipality

WP(C) No. 30819 of 2022 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` TUESDAY, THE 28[TH] DAY OF MARCH 2023 / 7TH CHAITHRA, 1945 WP(C) NO. 30819 OF 2022 ``` ## **`PETITIONER:`** ``` V. SREEDHARAN AGED 73 YEARS S/O. VELAN THEYYAN, OZHIVUPARA, PALLASSANA, PALAKKAD DISTRICT., PIN - 678505 BY ADVS. JACOB SEBASTIAN K.V.WINSTON ANU JACOB ``` ## **`RESPONDENTS:`** ``` 1THE REVENUE DIVISIONAL OFFICER, PALAKKAD OFFICE OF THE REVENUE DIVISIONAL OFFICER PALAKKAD, PALAKKAD DISTRICT., PIN - 678001 2THE VILLAGE OFFICER VILLAGE OFFICE, THATHAMANGALM, PALAKKAD DISTRICT., PIN - 678102 3THE AGRICULTURAL OFFICER FOR THE CHITTUR- THATHAMANGALAM MUNICIPALITY PALAKKAD DISTRICT., PIN - 678102 GP - SYAMANTHAK B.S. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No. 30819 of 2022 2 ## **VIJU ABRAHAM , J. =========================== WP(C) No. 30819 of 2022 ============================ Dated this the 28[th] day of March, 2023** ## **J U D G M E N T** The above writ petition is filed aggrieved by Ext P5 order whereby the form 5 application submitted by the petitioner was rejected. 2. Petitioner is in absolute ownership and possession of 0.2023 hectors of land comprised in Survey Nos. 542/1 & 542/3, Re-survey No.3/5, Re-survey Block 50 of Thathamangalam Village, Chittur Taluk & Palakkad District. The property originally belonged to one Damodaravaidyar by virtue of Sale deed No. 305/1/1973 of SRO, Chittur. The 1[st] respondent by Ext P2 order dated 22.08.1984 permitted him in terms of clause 6(2) of the KLU order, conversion of 0.06 acre of land for utilising the land for other purpose. The said permission was applied for the purpose of construction of a building on the land. As enabled by the KLU order, the land was fully converted and made fit for construction purposes. Later due to paucity of funds he could not materialized the same. 3. Thereafter by Ext P3 Sale deed No. 960/2004 of SRO Chittur, he sold the property to the petitioner. Later the 1[st] WP(C) No. 30819 of 2022 3 respondent again by Ext P4 order dated 22.11.2006 permitted petitioner in terms of clause 6(2) of KLU order, permission for conversion of 35 cents of land for utilising the land for other purposes. The said request was made for the purpose of construction of a commercial building, shopping complex on the land. Eventhough the said land was fully converted and made fit for construction purposes, due to paucity of funds he could not materialise the project. Paddy is not cultivated in the plot or nearby locality. Eventhough the property is a pucca garden land, it is wrongly included in the data bank for the ChitturThathamangalam Municipality. Since the plot was wrongly included in the data bank, the petitioner could not use it for any other useful purpose and in the said circumstances petitioner submitted an application dated 22.09.2021 in form-5 before the 1[st] respondent seeking to delete the above said property from the data bank for the Chittur-Thathamangalam Municipality. 4. It is a contention of the petitioner that, the property underwent a transformation as dry land well before 12.08.2008, the date on which the Act came into force. Therefore, the inclusion of the property in the data bank is only a mistake which requires to be corrected. It is a contention of the petitioner that the rule mandates that while considering an application under form-5 a report should be received from the Agricultural Officer WP(C) No. 30819 of 2022 4 concerned and physical inspection should be done and if required, KSRSEC report should also be obtained. Petitioner submits that none of these has been undertaken before issuing Ext P5 order. The reasons stated for rejecting the application as per Ext P5 is that the Local Level Monitoring Committee has examined the property and the same was part of a padasekharam and suitable for paddy cultivation, the property need not be removed from the data bank. It is seen that Ext P5 order has been issued solely based on the report of the Agricultural Officer and none of the procedures or parameters for consideration of form-5 application has been undertaken in the present case. It is settled law that the nature of the land and as to whether the said land is suitable for paddy cultivation as on the date of coming into force of the Act of 2008 i.e. 12.08.2008 is the relevant consideration to include a property as a paddy land or not. 5. Petitoner submitted that the property is a residential area surrounded with houses and road and that the property is a pucca garden land having several trees in it. These relevant aspects were not considered while issuing Ext P5 order. This court in _**Joy vs. Revenue Divisional Officer [2021(1) KLT 433]**_ as well as in _**Arthasasthra Ventures (India) LLP vs. State of Kerala [2020(7) KHC 591]**_ has laid down the WP(C) No. 30819 of 2022 5 parameters to be considered while deciding on a form-5 application. The paramount consideration is the nature of the land as on date of coming into force of 2008 Act and whether the said property is fit for paddy cultivation. A reading of Ext P5 would reveal that not even a site inspection was conducted by the Revenue Divisional Officer nor a report was called for from the KSRSEC which would clearly show that the property is converted much prior to coming into force of the Act of 2008. Petitioner has a yet another contention that as per Exts P2 and P4 permission has already been obtained of the KLU order for conversion of the said land and that the land is fully converted and in view of the orders passed under the KLU order there need not be any further consideration as to whether the property should be included or excluded from the data bank. In support of this contentions, petitioner relies on the judgment in WP(C) Nos. 25260/2021, 6374/2021 and 22081/2021 and also the judgment in _**Kaipadath Property Development Company (Pvt.) Ltd. Vs. State of Kerala and others [2011 (1) KHC 291]**_ and in _**Shahul Hameed Vs. Principal Secretary, Local Self Govt and others [2018 (2) KHC 48]**_ and contended that once KLU permission has been granted in respect of the property, that itself is a reason to delete the property from the data bank. WP(C) No. 30819 of 2022 6 6. On the contrary, the learned Government Pleader relies on the judgment in _**Revenue Divisional Officer, Ernakulam Vs. M/s Poothotta Resorts (Pvt.) Ltd. [2023 (1)**_ _**KHC 34 (DB)]**_ to contend for the position that the Division Bench has clearly held that if a property is included in the data bank as per the provisions of Act of 2008, then necessarily an application has to be submitted by the petitioner for removing the same from the data bank. 7. Heard the contentions of both sides. 8. It is seen that none of the parameters for consideration of application under form-5 for removal of the property from the data bank as provided in the rules or as declared by this Court in _**Joy’s case**_ as well as _**Arthasasthra’s case**_ has been duly considered by the 1[st] respondent while issuing Ext P5 order. Not even a site inspection was conducted and report of KSRSEC was also not obtained. It is also pertinent to note that even the permissions granted under KLU order which is produced as Exts P2 and P4 was also not considered while taking a decision as per Ext P5. Therefore, Ext P5 is set aside with a direction to the 1[st] respondent to reconsider the application submitted by the petitioner in form-5 strictly in accordance with the rules and in the light of the judgment in _**Joy’s case**_ as well as _**Arthasasthra’s case,**_ after conducting a WP(C) No. 30819 of 2022 7 site inspection, if required by calling for a KSRSEC report, at the expense of the petitioner and also duly taking note of the permission granted under the KLU order as is evident from Ext P2 and P4. Petitioner is free to produce the copies of the judgment relied on by him and it shall also be taken into consideration while reconsidering the application of the petitioner submitted in form-5. A decision in this regard shall be taken within a period of two months from the date of receipt of a copy of this judgment. With the above said direction, the writ petition is disposed of. **Sd/VIJU ABRAHAM JUDGE** sbk/- WP(C) No. 30819 of 2022 8 ## **`APPENDIX OF WP(C) 30819/2022`** ``` PETITIONER EXHIBITS Exhibit-P1A TRUE COPY OF THE POSSESSION CERTIFICATE NO.55726741 DATED 19.04.2021 ISSUED BY THE SECOND RESPONDENT. Exhibit-P2A TRUE COPY OF THE KLU ORDER DATED 22.08.1984 ISSUED BY THE FIRST RESPONDENT. Exhibit-P3A TRUE COPY OF THE SALE DEED NO.960/2004 OF SRO CHITTUR DATED 17.03.2004. Exhibit-P4A TRUE COPY OF THE KLU ORDER DATED 22.11.2006 ISSUED BY THE FIRST RESPONDENT. Exhibit-P5A TRUE COPY OF THE ORDER DATED 05.08.2022 ISSUED BY THE FIRST RESPONDENT. ```