Varghese v. District Collector, Ernakulam Collectorate and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, ``` ``` 1945 ``` ## `WP(C) NO. 24378 OF 2021` ## `PETITIONER:` ``` VARGHESE, AGED 55 YEARS, S/O.MATHAI, NOW RESIDING AT EZHAKKALA, PUTHENPURAYIL HOUSE, VELAYANCHIRANGARA P.O., ERNAKULAM - 683 556. BY ADV JOSEPH M.P. ``` ## `RESPONDENTS:` - `1 THE DISTRICT COLLECTOR, ERNAKULAM COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM - 682 013.` - `2 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA - 686 661.` - `3 THE TAHSILDAR TALUK OFFICE, KUNNATHUNADU TALUK - 683 542.` - `4 THE VILLAGE OFFICER AIRAPURAM, AIRAPURAM - 683 541.` - `5 THE CONVENER, LOCAL LEVEL MONITORING COMMITTEE & AGRICULTURAL OFFICER, NELLADU, KOLENCHERY - 682 310.` - `6 THE PRESIDENT, MAZHAVANOOR GRAMA PANCHAYAT, MAZHAVANOOR - 682 311.` ## `OTHER PRESENT:` ## `SRI B.S.SYAMANTHAK, GP` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P(C).24378/2021 2 ## **P. V. KUNHIKRISHNAN, J.** ## **------------------------------------------W.P(C).No.24378 of 2021** **------------------------------------------Dated this the 18[th] day of March, 2024** ## **JUDGMENT** The above Writ Petition is filed with the following prayers: i) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext. P6. ii) To issue a declaration declaring that the property covered by Ext. P1 is a reclaimed land prior to Wet Land Act, 2008. iii) To issue a writ of mandamus or any other appropriate writ or order directing 2nd respondent to reconsider Ext. P4 application afresh. iv) To grant such other reliefs as this Hon'ble Court may deem just and proper in the interest of justice, including costs. **==> picture [31 x 13] intentionally omitted <==** 2. The petitioner is the owner in possession and enjoyment of 11 Ares 21 sq.mts of land comprised in Resurvey No.116 Block No.29 of Airapuram Village by virtue of sale deed W.P(C).24378/2021 3 No.1988/1/19 dated 3/4/2019 of the Perumbavoor SRO is the submission. The said property of the petitioner was mutated in the name of the petitioner vide thandaper no.8171 and the petitioner is paying tax for the same. It is submitted that the said property is recorded as ‘nilam’ in revenue records. But, it is also submitted that, no paddy cultivation is conducted in the said property for more than three decades. It is also submitted that, this Court in a catena of decisions held that, merely because the land is recorded as nilam in village records, permit for construction cannot be denied. The petitioner approached this Court by filing W.P(C).No.26022/2019. This Court as per judgment dated 14.10.2019 directed the 2[nd] respondent to dispose Ext.P4 application of the petitioner. However, the 2[nd] respondent passed Ext.P6 order rejecting the application of the petitioner on the ground that as per satellite images in the year 2008, the said property is seen as ‘nilam’ and therefore, it cannot be removed from the data bank. It is submitted that the property of the petitioner covered by Ext.P1 is a reclaimed land prior to the Kerala Conservation of Paddy and WetLand Act, 2008. It is W.P(C).24378/2021 4 further submitted that the petitioner intends to construct a residential building in the said property. The petitioner submitted that the present nature of the property can be verified by inspecting the property. That is also not done. Hence, this Writ Petition. 3. Heard learned counsel appearing for the petitioner and the learned Government Pleader. 4. This Court perused Ext.P6 order. Ext.P6 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.P6 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 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 W.P(C).24378/2021 5 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 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. W.P(C).24378/2021 6 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 **2[nd]** 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.P6 order is set aside. b) The 2[nd] 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 2[nd] respondent. If fresh KSREC report is called for, W.P(C).24378/2021 7 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. d) The petitioner will produce the certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 2[nd] respondent for compliance. Sd/- **P. V. KUNHIKRISHNAN JUDGE** Sbna/ W.P(C).24378/2021 8 ## `APPENDIX OF WP(C) 24378/2021` |`PETITIONER`|`EXHIBITS`| |---|---| |`Exhibit P1`|`TRUE COPY OF THE SALE DEED`| ||`NO.1988/1/19 DATED 3/4/2019 OF`| ||`PERUMBAVOOR SRO.`| |`Exhibit P2`|`TRUE COPY OF THE TAX RECEIPT FOR THE`| ||`YEAR 2020-2021.`| |`Exhibit P3`|`TRUE COPY OF THE APPLICATION FILED BY`| ||`THE PETITIONER BEFORE THE 5TH`| ||`RESPONDENT.`| |`Exhibit P4`|`TRUE COPY OF THE PETITION IN`| ||`PRESCRIBED FROM FILED BY THE`| ||`PETITIONER BEFORE THE 2ND RESPONDENT.`| |`Exhibit P5`|`TRUE COPY OF THE JUDGMENT DATED`| ||`14/10/2019 PASSED BY THIS HON'BLE`| ||`COURT IN WP(C) NO.26022 OF 2019(C).`| |`Exhibit P6`|`TRUE COPY OF THE ORDER BEARING`| ||`NO.A13-5228/20/R.DS DATED 2/8/2021`| ||`ISSUED BY THE 2ND RESPONDENT.`|