Vijesh Kumar G v. District Collector, Palakkad and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 WP(C) NO.9904 OF 2024 ``` ## **`PETITIONER:`** ``` VIJESH KUMAR G, AGED 35 YEARS S/O.R.GOPINATHAN, RADHA NIVAS, VELLANARA, KOLLENGODE, PALAKKAD DISTRICT, PIN - 678506 ``` ``` BY ADVS. K.R.RAJKUMAR JAGADEESH LAKSHMAN R.K.RAKESH NANDANA BABU T. ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR, PALAKKAD, COLLECTORATE, CIVIL STATION, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD, PIN - 678013`** - **`2 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, CIVIL STATION, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD, PIN - 678013`** ``` 3THE TAHSILDAR(LR) CHITTOOR TALUK OFFICE, CHITTUR - GOPALAMPURAM ROAD, CHITTUR, PALAKKAD DISTRICT, PIN - 678101 ``` - **`4 THE VILLAGE OFFICER, KOLLENGODE II VILLAGE OFFICE, KOLLENGODE, PALAKKAD DISTRICT, PIN - 678506`** ``` 5THE AGRICULTURAL OFFICER KRISHI BHAVAN, KOLLENGODE, KOLLENGODE SOUTH, PALAKKAD DISTRICT, PIN - 678506 ``` W.P.(C) No.9904 of 2024 2 ``` 6LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENER, THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KOLLENGODE, PALAKKAD DISTRICT, PIN - 678506. BY SMT.DEVISREE, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.9904 of 2024 3 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P5 order, whereby Form 5 application submitted by him has been rejected by the 2[nd] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of 4.96 Ares of land comprised in Sy.No.135/13 in Block No.14 of Kollengode-II Village, Chittur Taluk, Palakkad District. ``` ``` 3. According to the petitioner, the aforesaid property will not come within the ambit of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for brevity, ‘the Act, 2008’). However, the property is wrongly included in the Data Bank. The petitioner filed Ext.P4 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land ``` W.P.(C) No.9904 of 2024 4 ``` and Wetland Rules, 2008 [for brevity, ‘the Rules, 2008’] before the RDO to remove the said land from the Data Bank. The same has been rejected by the RDO vide Ext.P5 order stating that the Agricultural Officer has reported that the subject land is converted after 2008 and the land is suitable for paddy cultivation and need not be removed from the Data Bank. ``` ``` 4. The petitioner has filed this writ petition challenging Ext.P6 contending,inter alia, that the same is vitiated by non application of mind and is against the provisions of the Act, 2008 and the binding precedents of this Court. It is also contended that the RDO should have called for a report from the Kerala State Remote Sensing and Environment Centre [for short, ‘the KSRSEC’] before disposing of the Form 5 application to ``` W.P.(C) No.9904 of 2024 5 ``` ascertain the exact nature of the land as on 12.08.2008, the date of coming into force of the Act, 2008. ``` ``` 5. The relevant consideration for inclusion of a property as paddy land or wetland is as to the nature of the property as on the date of coming into force of the Act, 2008. Rule 4(4E) of the Rules, 2008 provides that, on receipt of the application in Form 5, the RDO shall call for a report from the Agricultural Officer in the case of paddy land and that of the Village Officer in the case of wetland. Rule 4(4F) provides that, on receipt of the report as above, the RDO shall, if deems necessary, verify the contents of the Data Bank by direct inspection or with the help of satellite images prepared by Central/State Scientific Technological Institutions and pass ``` W.P.(C) No.9904 of 2024 6 ``` appropriate orders on the application. On a perusal of Ext.P5, it is evident that, without any independent assessment of the nature of the property as on the date of coming into force of the Act, 2008, the RDO has solely relied upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. ``` ``` 6. This Court has held in the decision in Arthasasthra Ventures (India) LLP v. State of Kerala [2022 (7) KHC 591] that, the Revenue Divisional Officer must, while considering an application for removal of a property from the Data Bank, consider the question whether the land was a paddy land as on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. In Muraleedharan Nair v. Revenue Divisional Officer ``` W.P.(C) No.9904 of 2024 7 ``` [2023 (4) KLT 270], this Court has held that when the petitioner seeks removal of his land from the Data Bank, it will not be sufficient for the Revenue Divisional Officer to dismiss the application simply stating that the LLMC has decided not to remove the land from Data Bank. 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 Data Bank will adversely affect paddy cultivation in the land in question or in the 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. In Aparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83], this Court has held that the predominant factor for ``` W.P.(C) No.9904 of 2024 8 ``` determination while considering the Form-5 application should be whether the land which is sought to be excluded from Data Bank is one where paddy cultivation is possible and feasible. ``` ``` In spite of the categorical declarations by this Court in the decisions cited above, the petitioner’s application has been rejected, solely relying on the report of the Agricultural Officer, who recommended not to remove the land from the Data Bank. None of the parameters for consideration of a Form 5 application has been taken into account while passing the impugned order. Accordingly, I find that Ext.P5 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent, the RDO, to reconsider Ext.P4 application in Form 5 in accordance with law and take a decision in the ``` W.P.(C) No.9904 of 2024 9 ``` matter after considering the KSRSEC report to be obtained at the expense of the petitioner and other relevant factors mentioned in Rule 4(4F), within a period of two months from the date of receipt of the report of the KSRSEC. The petitioner shall apply before the Agricultural Officer concerned for KSRSEC report within a period of two weeks from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition along with a copy of the judgment before the 2[nd] respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/14/03/2024 ``` W.P.(C) No.9904 of 2024 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ## **`Exhibit P1`** ``` THE TRUE COPY OF THE BASIC TAX RECEIPT NO. KL09021100526/2023 ISSUED BY THE 4TH RESPONDENT DATED 18-03-2023 ``` ``` Exhibit P2 ``` ``` THE TRUE COPY OF THE POSSESSION CERTIFICATE NO. 76855449 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER DATED 20-03-2023 ``` - **`Exhibit P3`** - **`THE TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK OF THE KOLLENGODE GRAMA PANCHAYATH AS PER THE OFFICIAL NOTIFICATION NO. KGP/B4/5003/2021 DATED 15-02-2021`** - **`Exhibit P4 THE TRUE COPY OF THE APPLICATION UNDER FORM 5 OF THE KERALA CONSERVATION OF PADDY LAND AND WET LAND RULES, 2008, SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT THOUGH ONLINE WITH NO. 1/2023/1517938 DATED 12-04-2023`** - **`Exhibit P5`** - **`THE TRUE COPY OF THE ORDER NO: 10338/2023 PASSED BY THE 2ND RESPONDENT DATED 29-12-2023`** ``` Exhibit P6 ``` ``` THE PHOTOGRAPH OF THE SUBJECT LAND SHOWING THE PRESENT STATUS OF THE PROPERTY OF THE PETITIONER ```