Varghese Eralil v. Revenue Divisional Officer / Sub Collector, Fort Kochi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 15[TH] DAY OF MARCH 2024 / 25TH PHALGUNA, 1945** **WP(C) NO. 10461 OF 2024** ## **PETITIONER(S):** **VARGHESE ERALIL** **AGED 60 YEARS** **S/O V.K. ERALIL O 2117A, 2ND AVENUE, 1ST CROSS ROAD, SATELLITE TOWNSHIP PADAMUGAL, KAKKANAD P.O, ERNAKULAM DISTRICT, PIN - 682030** **BY ADVS.** **P.K.SOYUZ** - **E.V.BABYCHAN** ## **RESPONDENT(S):** - **1 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR RDO OFFICE, FORT KOCHI P.O., ERNAKULAM, PIN - 682001** - **2 THE AGRICULTURAL OFFICER KRISHI BHAVAN, CHOTTANIKKARA, CHOTTANIKKARA P.O ERNAKULAM DISTRICT, PIN - 682312** - **3 THE VILLAGE OFFICER KUREEKKAD VILLAGE, KANAYANOORTALUK CHOTTANIKKARA P.O , ERNAKULAM DISTRICT, PIN - 682312** - **4 THE DIRECTOR KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTER 'C' BLOCK, VIKAS BHAVAN, THIRUVANTHAPURAM, PIN - 695033** - **BY ADV.** **SMT.AMMINIKUTTY.K, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO.10461 OF 2024 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------------W.P.(C) No.10461 of 2024** **------------------------------------Dated this the 15[th] day of March, 2024** ## **JUDGMENT** ## The above Writ Petition is filed with the following prayers: “i) issue a writ of certiorari or any appropriate writ, order or direction calling for the records leading to Ext. P5 order and quash the same. ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1[st] respondent to reconsider Ext.P4 application in form No. 5, in the light of Ext P3 report and in the light of Judgments in Adani Infrastructures and Developers Pvt. Ltd. V. State Kerala, 2014 (1) KLT 774, Lalu V. State of Kerala 2020(5) KLT 712 , Joy V. Revenue Divisional officer / Sub collector, 2021 (1) KLT 433 , Arthasasthra Ventures (India ) LLP V. state of Kerala , 2022 (7) KHC WP(C) NO.10461 OF 2024 3 561 and in Mureleedharan Nair R V. RDO , 2023 (4 ) KHC 524. Aparna Sasi Menon V. RDO , 2023 (6) KHC 83 and direct to make necessary corrections in Ext P2 data bank by deleting the land covered by Ext.P1 tax receipt from the data bank. iii) Grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of this case including the cost of this Writ Petition. iv) To dispense with filing of the translation of vernacular documents.” _[SIC]_ 2. The petitioner is in ownership and in possession of 1.99 Ares of land comprised in ReSurvey Number 70/ 4 - 4 Block No. 11 of Kureekkad Village, Kanayannoor Taluk. The above mentioned land is classified as Nilam in the BTR. According to the petitioner, the land is in a developed residential colony named 'Golden Shore Villas' and there are granite foundations on all the 4 sides of the land. It is also the case of the petitioner that, the land is surrounded WP(C) NO.10461 OF 2024 4 by road, and other converted lands. It is submitted that the land was irreversibly converted much before and it was not a cultivable land or suitable land for paddy cultivation at the time of commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'Act 2008'). The 3[rd] respondent had issued Ext.P3 certificate to the predecessor in interest stating that the land is neither a paddy land nor a wet land and the land was converted before the commencement of Act 2008. The petitioner submitted Ext.P4 application in Form No.5 before the 1[st] respondent to delete the land from the data bank. But without considering Ext.P3 report or without obtaining a report from the 4[th] respondent, the 1[st] respondent has rejected Ext.P4 application as per Ext.P5 order. It is the case of the petitioner that the 1[st] respondent has not considered the judgments WP(C) NO.10461 OF 2024 5 in **Adani Infrastructures and Developers Pvt.Ltd. v. State Kerala** [2014 (1) KLT 774], **Lalu V. State of Kerala** [2020(5) KLT 712], **Arthasasthra Ventures (India) LLP v. state of Kerala** [2022 (7) KHC 561], **Mureleedharan Nair R V. RDO** [2023 (4) KHC 524], **Joy v. Revenue Divisional officer / Sub collector** [2021 (1) KLT 433] and **Aparna Sasi Menon v. RDO** [2023 (6) KHC 83] before passing Ext.P5 order. Aggrieved by Ext.P5 order, this writ petition is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Government Pleader. 4. This Court perused Ext.P5 order. Ext.P5 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.P5 order. In _**Muraleedharan Nair v. Revenue Divisional Officer**_ [2023 (4) KLT 270], this Court observed that, WP(C) NO.10461 OF 2024 6 it will not be sufficient for the Revenue Divisional Officer to dismiss the application simply stating that 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 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 WP(C) NO.10461 OF 2024 7 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 petitioner. The impugned order is not a speaking order. The contentions of the petitioner is not adverted by the 1[st] respondent while WP(C) NO.10461 OF 2024 8 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: i) Ext.P5 order is set aside. ii) 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. iii) 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 WP(C) NO.10461 OF 2024 9 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 the KSREC. iv) The petitioner will produce a certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 1[st] respondent for compliance. v) While deciding the matter, the 1[st] respondent shall consider Ext.P3 and also WP(C) NO.10461 OF 2024 10 the dictum laid down in **Adani Infrastructures and Developers Pvt.Ltd. v. State Kerala** [2014 (1) KLT 774], **Lalu v. State of Kerala** [2020(5) KLT 712], **Arthasasthra Ventures (India) LLP v. state of Kerala** [2022 (7) KHC 561], **Mureleedharan Nair R** **v. RDO** [2023 (4) KHC 524], **Joy v. Revenue Divisional officer / Sub collector** [2021 (1) KLT 433] and **Aparna Sasi Menon v. RDO** [2023 (6) KHC 83]. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO.10461 OF 2024 11 ## **APPENDIX OF WP(C) 10461/2024** ## **PETITIONER EXHIBITS** **EXHIBIT P1** **A TRUE COPY OF THE LAND TAX RECEIPT DATED 01.12.2023** **EXHIBIT P2 A TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFIED DATA BANK OF CHOTTANIKKARA GRAMA PANCHAYATH DATED 23.02.2012 EXHIBIT P3 A TRUE COPY OF THE CERTIFICATE DATED 25.06.2010 ISSUED BY THE 3RD RESPONDENT EXHIBIT P4 A TRUE COPY OF THE APPLICATION DATED 23.02.2021 SUBMITTED BY THE PETITIONER IN FORM NO.5 BEFORE THE 1ST RESPONDENT EXHIBIT P5 A TRUE COPY OF THE ORDER NO. K16/11931/2022 DATED 02.03.2023 OF THE 1ST RESPONDENT** **RESPONDENTS EXHIBITS : NIL** **//TRUE COPY// PA TO JUDGE**