V.I. Joy v. State of Kerala & Others (WP(C) 31326 of 2018)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN`** ``` THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 WP(C) NO. 31326 OF 2018 ``` ## **`PETITIONER :-`** ## **`V.I.JOY, AGED 63 YEARS S/O IGNATIUS. VELLARINGATTU HOUSE, KODUMPIDI P.O,KOTTAYAM 686651`** ``` BY ADVS. K.C.VINCENT JOBY JOSEPH ``` ## **`RESPONDENTS :-`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY , DEPARTMENT OF AGRICULTURE, SECRETARIAT, THIRUVANANTHAPURAM 695001`** - **`2 THE REVENUE DIVISIONAL OFFICER FORT KOCH-682001.`** - **`3 THE VILLAGE OFFICER VILLAGE OFFICE, NEDUMBASSERY-683589.`** - **`4 THE LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, NEDUMBASSERY-683589.`** - **`*5 ADDL.RESPONDENTS 5 & 6 ARE TO BE IMPLEADED :-`** - **`DEPUTY COLLECTOR (L.A.) COLLECTORATE, KAKKANAD, ERNAKULAM`** - **`*6 AGRICULTURAL OFFICER, KRISHI BHAVAN, NEDUMBASSERY, ERNAKULAM`** ``` ADDL.RESPONDENTS 5 AND 6 ARE TO BE IMPLEADED AS PER ORDER DATED 18.07.2024 IN I.A.NO.4 OF 2024 ``` ``` BY SMT.K.B.SONY - GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 31326 OF 2018 ``` ``` 2 ``` ## JUDGMENT This writ petition is filed with the following prayers :- “(a) issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Ext.P3 and P4 and quash the same. - (b) issue a declaration that the lands 13.08 Ares comprised in Re-Survey No.125/7 in Block No.9 of Nedumbassery village are not paddy lands liable to be governed by the Kerala Conservation of Paddy Land and Wetland Act, 2008. (c) issue a writ of mandamus or any other appropriate writ, direction or order directing the 4[th] respondent to issue necessary notification deleting 13.08 Ares comprised in Re-survey No.125/7 in Block NO.9 of Nedumbassery village, from the data bank. (d) or in the alternative, issue a writ of mandamus or any other appropriate writ, direction or order directing the 4[th] respondent to consider the application for deleting from the data bank afresh after ascertaining whether the subject land is converted/reclaimed as on date and on the date of enactment of the 2008 Act. - (e) issue such other writ, order or direction as this Honourable Court deems fit and proper to grant in the facts and circumstances of the case.” 2. The facts of the case are as follows :- The petitioner is in possession and ownership of 13.08 Ares of properties in Re-survey No.125/7 in Block No.9 of ``` WP(C) NO. 31326 OF 2018 ``` ``` 3 ``` Nedumbassery village. Years before, the property was paddy land and was categorized as nilam in the revenue records, including the Basic Tax Register. Many residential as well as commercial buildings came into and around the aforesaid property. The petitioner did not utilize the said land, though the property was reclaimed before 2008, except for the cultivation of a certain number of coconuts, mangoes, and bananas. The said properties were included in the data bank as ‘nilam’. Ext.P1 application was filed. Aggrieved by the inclusion of land in the data bank and the non-consideration of the said application, the petitioner approached this Court by filing W.P.(C) No.26258 of 2017 for speedy disposal of the application. This Court as per judgment dated 22.08.2017, directed the 4[th] respondent to obtain a report from Kerala State Remote Sensing and Environment Centre (for short ‘the KSRSEC’), Thiruvananthapuram regarding the status of the property and the 4[th] respondent was further directed to finalize the application, after conducting physical inspection. Without properly evaluating the report of the KSRSEC, Ext.P3 order was passed by the 4[th] respondent declining to delete the entries from the data bank. Ext.P4 is the minutes of the meeting of the Local ``` WP(C) NO. 31326 OF 2018 ``` ``` 4 ``` Level Monitoring Committee dated 27.02.2018, wherein it was reported that the land was lying as fallow, suitable for paddy cultivation, as reported by the KSRSEC. Aggrieved by the same, the petitioner has approached this Court with the above writ petition. 3. Heard the learned counsel for the petitioner and the learned Government Pleader for the respondents. 4. The learned counsel for the petitioner submitted that the property of the petitioner was wrongly included in the data bank, even though it was reclaimed land. It is further submitted that the Ext.P5 report of the KSRSEC and the Ext.P4 minutes of the meeting of the Local Level Monitoring Committee do not state whether the property is reclaimed land or not. It has only been mentioned that the property is fallow and suitable for paddy cultivation. 5. Today, the learned counsel for the petitioner submitted that Form -5 application dated 19.09.2023 has been filed before the Revenue Divisional Officer for consideration and the said application is produced along with I.A,No.4 of 2024. The RDO has not considered Form -5 application filed by the petitioner. If there ``` WP(C) NO. 31326 OF 2018 ``` ``` 5 ``` is a wrong entry in the data bank, after the amendment of the Act in 2017 and Rules in 15.12.2018, the Revenue Divisional Officer is empowered to consider Form – 5 application, if there is any dispute regarding the entry in Form – 4. Accordingly, the petitioner had filed Form -5 application dated 19.09.2023 and submitted that so far, the RDO has not considered the application. 6. The learned counsel for the petitioner also relied on the judgment of this Court in Sudheesh v. Revenue Divisional Officer [2023 (2) KLT 389], wherein it was held that just for the reason that the property is left fallow, the land cannot be brought within the definition of paddy land but the Revenue Divisional Officer should be satisfied that the land is suitable for paddy cultivation and left fallow and therefore only on satisfaction of the said twin conditions that a land could be treated as paddy land coming under the definition of Section 2(xii) of the Act, 2008. 7. The learned counsel also relied on the judgment of this Court in Niyas v. District Collector, Palakkad [2023 (6) KLT 118], wherein it was held that the very purpose of conferring power upon the RDO is to arrive at a decision after identifying the ground realities. ``` WP(C) NO. 31326 OF 2018 ``` ``` 6 ``` 8. It is further stated by the counsel that the very purpose of conferring power upon the RDO is to arrive at a decision after identifying the ground realities of the property. The learned counsel further submitted that the adjacent properties of the disputed property are already reclaimed and residential as well as commercial buildings have been constructed. There is a road to the property and it is a reclaimed property. 9. The learned Government Pleader submits that the direction can be given to the competent authority to consider Form-5 application submitted by the petitioner in a time bound manner. 10. It is relevant to note that the RDO or Deputy Collector (LA), may inspect the property personally for identifying the ground reality of the property, before taking a decision, since it is the specific case of the petitioner that it is a reclaimed land which was left unnoticed by the LLMC and the KSRSEC. Accordingly, this writ petition is disposed of as follows :- The 2[nd] respondent or the additional 5[th] respondent, whoever is competent, shall consider and pass orders on Form – 5 application filed by the petitioner after obtaining ``` WP(C) NO. 31326 OF 2018 ``` ``` 7 ``` a report from the 6[th] respondent, untrammeled by the observations made in Exts.P3 and P4. The 6[th] respondent shall file a report within a period of one month from the date of receipt of a certified copy of this judgment before the 2[nd] or 5[th] respondent. Thereafter, the 2[nd] or 5[th] respondent shall pass appropriate orders within a period of three months thereafter. The petitioner shall produce a certified copy of this judgment along with the copy of the writ petition before the competent authority for compliance. Sd/- SHOBA ANNAMMA EAPEN JUDGE SMA ``` WP(C) NO. 31326 OF 2018 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 31326/2018`** ``` PETITIONER EXHIBITS :- ``` ``` Exhibit P6 ``` ``` A TRUE COPY OF THE APPLICATION IN FORM 5 DATED 19.09.2023 SUBMITTED BEFORE THE REVENUE DIVISIONAL OFFICER THROUGH ONLINE ``` ``` EXHIBIT P1 ``` ``` A TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK. ``` ``` EXHIBIT P2 ``` ``` A TRUE COPY OF THE JUDGMENT IN WP(C)NO.26258/2017 DATED 22/08/2017. ``` ``` EXHIBIT P3 ``` - **`A TRUE COPY OF THE ORDER DECLINING THE REQUEST FOR DELETION DATED 20/06/2018.`** ``` EXHIBIT P4 ``` - **`A TRUE COPY OF THE MINUTES OF THE LLMC DATED 27/02/2018 OBTAINED UNDER RTI ACT ON 15/09/2018.`** ``` EXHIBIT P5A TRUE COPY OF THE REPORT OF THE KSRSEC DATED 29/11/2017. ``` ``` EXHIBIT P6 ``` - **`A TRUE COPY OF THE APPLICATION IN FORM 5 DATED 19.09.2023 SUBMITTED BEFORE THE REVENUE DIVISIONAL OFFICER THROUGH ONLINE`**