Vinod Uthaman and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 16[TH] DAY OF NOVEMBER 2023 / 25TH KARTHIKA, 1945** ## **WP(C) NO. 33796 OF 2023** ## **PETITIONERS:** 1 VINOD UTHAMAN AGED 54 YEARS S/O UTHAMAN 'VINOD BHAVAN', MUTHUKULAM P.O. KARTHIKAPPALLY TALUK ALAPPUZHA DISTRICT, PIN - 690506 2 BINITHA VINOD AGED 50 YEARS W/O VINOD 'VINOD BHAVAN', MUTHUKULAM P.O. KARTHIKAPPALLY TALUK ALAPPUZHA DISTRICT, PIN - 690506 3 VISHNU VINOD AGED 21 YEARS S/O VINOD 'VINOD BHAVAN', MUTHUKULAM P.O. KARTHIKAPPALLY TALUK ALAPPUZHA DISTRICT, PIN - 690506 BY ADVS. M.K.CHANDRA MOHANDAS SHAKTHI PRAKASH K.DHRUV KUMAR HARIKRISHNAN M.S. 1 THE DISTRICT COLLECTOR CIVIL STATION ALAPPUZHA, PIN - 688001 2 THE SUB COLLECTOR OFFICE OF THE SUB COLLECTOR CIVIL STATION, ALAPPUZHA, PIN - 688001 3 THE TAHSILDAR TALUK OFFICE AMBALAPPUZHA, ALAPPUZHA, PIN - 688561 4 THE VILLAGE OFFICER VILLAGE OFFICE KALAVOOR, MARARIKULAM SOUTH ALAPPUZHA DISTRICT, PIN - 688522 5 THE AGRICULTURE OFFICER AGRICULTURE OFFICE MARARIKULAM SOUTH ALAPPUZHA DISTRICT, PIN - 688523 6 THE LOCAL LEVEL MONITORING COMMITTEE MARARIKULAM SOUTH ALAPPUZHA DISTRICT, PIN - 688523 ## **RESPONDENTS:** ## **OTHER PRESENT:** GP - SYAMANTHAK B.S. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: : 2 : W.P.(C). No.33796 of 2023 ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **W.P.(C) No.33796 of 2023** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of November, 2023 ## **JUDGMENT** The petitioners have approached this Court aggrieved by Exts.P12, P13 and P14 orders, whereby the Form-5 application submitted by them have been rejected by the 2[nd] respondent. 2. The petitioners as per Exts.P1 to P3, are in ownership of 47.62 Ares of property. The properties are included in the data bank. Thereupon the petitioners have preferred applications in Form-5, to delete the properties from the data bank and as per Exts.P12, 13 and P14 orders, the 2[nd] respondent has rejected the applications submitted by the petitioners. The petitioners would contend that Exts. P12, 13 and P14 orders have been issued solely relying on the report of the Agricultural Officer and that there is no independent consideration by the 2[nd] respondent regarding the issue involved. 3. The learned Government Pleader submits that proceedings under Section 13 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 has been initiated against the petitioners as per : 3 : W.P.(C). No.33796 of 2023 Ext.P7, to which the learned counsel for the petitioners submitted that appropriate appeal has been filed by them and the same is pending consideration before the Government. ## 4. This Court in _**Bharathan Ramanathan v. State of Kerala,**_ _**2022 (6) KLT OnLine 1068**_ held that mere pendency of Section 13 proceedings or a revision proceedings based on Section 13 order cannot be a ground not to entertain an application invoking Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008. This Court in _**Salim C.K. and Another v. State of Kerala and Others[2017 (1) KHC 394]**_ has held that the Data Bank that was contemplated as per the provisions of the Act was to contain details only of cultivable paddy land and wetland within the area of jurisdiction of LLMC concerned. Further in _**Lalu P.S. v. State of Kerala[2020 (5) KHC 490]**_ has held that the data bank to be prepared under the Act is the data bank of the cultivable paddy land existing as on the date of the coming into force of the Rules, i.e., 24.12.2008. In _**Joy v. Revenue Divisional Officer/Sub Collector[2021 (1) KLT 433]**_ it was held that it is the character and fitness of the land as available on 12.08.2008, that matters, to include or exclude a land from the data bank. This court in _**Arthasasthra Ventures (India) LLP v. State of Kerala[2022**_ : 4 : W.P.(C). No.33796 of 2023 _**(4) KLT OnLine 1222]**_ has held that the most relevant aspect while considering Form-5 application is whether the land in question was a paddy land or a wetland when the Act, 2008 came into force and whether the land is fit for paddy cultivation and if the Revenue Divisional Officer was not satisfied with the available materials, ought to have resorted to scientific data including satellite photographs obtained from KSREC. This court in _**Muraleedharan Nair v. Revenue Divisional Officer[2023 (4)**_ _**KLT 270]**_ 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. Further, this Court in _**Aparna Sasi Menon v. Revenue Divisional Officer[2023 (5) KLT 432]**_ has held that the predominant factor for consideration while considering the : 5 : W.P.(C). No.33796 of 2023 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. 5. In spite of these categorical declaration by this Court in a catena of judgments as cited above, the application submitted by the petitioners has been rejected solely relying on the decision of the Agricultural Officer, not to remove the land from the data bank. 6. In view of the above, Exts.P12, P13 and P14 are set aside with a consequential direction to the 2[nd] respondent to reconsider the Form-5 applications submitted by the petitioners. If the petitioners submit an application to the Agricultural Officer concerned seeking to obtain KSRSEC Report remitting the prescribed fee within a period of two weeks, the 2[nd] respondent shall pass order afresh in the Form-5 applications within a further period of three months from the date of receipt of the KSRSEC Report and take a final decision in the matter after considering the report as well as the relevant factors stipulated in Rule 4 (4f) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008. Petitioners will be free to file argument notes incorporating copies of the judgments relied on by them to substantiate their contentions and the 2[nd] respondent while reconsidering the matter W.P.(C). No.33796 of 2023 : 6 : as directed above, shall advert to the findings by this Court in those judgments cited (supra) and also the contentions of the petitioners in the argument notes submitted by them. The writ petition is disposed of as above. Sd/- **VIJU ABRAHAM JUDGE** sm/ W.P.(C). No.33796 of 2023 : 7 : ## **APPENDIX OF WP(C) 33796/2023** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SALE DEED NO.2357/I/2021 DATED 22/10/2021 OF SUB REGISTRY OFFICE, MARARIKULAM SOUTH Exhibit P2 TRUE COPY OF THE SALE DEED NO.2356/I/2021 DATED 22/10/2021 OF SUB REGISTRY OFFICE, MARARIKULAM SOUTH Exhibit P3 TRUE COPY OF THE SALE DEED NO.2358/I/2021 DATED 22/10/2021 OF SUB REGISTRY OFFICE, MARARIKULAM SOUTH Exhibit P4 TRUE COPY OF THE PHOTOGRAPHS EVIDENCING THE NATURE AND LIE OF THE PROPERTY Exhibit P5 TRUE COPY OF THE RELEVANT PAGE OF DATA BANK EXTRACTS OF THE PROPERTY OF THE PETITIONERS Exhibit P6 TRUE COPY OF THE LAND TAX RECEIPT DATED 23/04/2022 IN RESPECT OF THE PROPERTY OF 2ND PETITIONER Exhibit P6(a) TRUE COPY OF THE LAND TAX RECEIPT DATED 23/04/2022 IN RESPECT OF THE PROPERTY OF 3RD PETITIONER Exhibit P7 TRUE COPY OF THE PROCEEDINGS OF THE FIRST RESPONDENT DATED 11/05/2023 Exhibit P8 TRUE COPY OF THE APPEAL MEMORANDUM DATED 10/06/2023 SUBMITTED BEFORE THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE Exhibit P9 TRUE COPY OF THE RECEIPT DATED 06/05/2022 EVIDENCING THE SUBMISSION OF APPLICATION BY THE 1ST PETITIONER Exhibit P9(a) TRUE COPY OF THE RECEIPT DATED 06/05/2022 EVIDENCING THE SUBMISSION OF APPLICATION BY THE 2ND PETITIONER Exhibit P9(b) TRUE COPY OF THE RECEIPT DATED 06/05/2022 EVIDENCING THE SUBMISSION OF APPLICATION BY THE 3RD PETITIONER Exhibit P10 TRUE COPY OF THE REPORT DATED 02/09/2022 OF THE 5TH RESPONDENT WITH REGARD TO THE PROPERTY OF THE FIRST PETITIONER Exhibit P11 TRUE COPY OF THE REPORT DATED 02/09/2022 OF THE 5TH RESPONDENT WITH REGARD TO THE PROPERTY OF THE 2ND PETITIONER : 8 : W.P.(C). No.33796 of 2023 Exhibit P11(a) TRUE COPY OF THE REPORT DATED 02/09/2022 OF THE 5TH RESPONDENT WITH REGARD TO THE PROPERTY OF THE 3RD PETITIONER Exhibit P12 TRUE COPY OF THE ORDER NO.33/2022/23614 DATED 03/10/2022 ISSUED BY THE 2ND RESPONDENT TO THE FIRST PETITIONER Exhibit P13 TRUE COPY OF THE ORDER NO.34/2022/23614 DATED 03/10/2022 ISSUED BY THE 2ND RESPONDENT TO THE SECOND PETITIONER Exhibit P14 TRUE COPY OF THE ORDER NO.32/2022/23614 DATED 03/10/2022 ISSUED BY THE 2ND RESPONDENT TO THE THIRD PETITIONER