W.P.(C) No. 3493 of 2024, High Court of Kerala, Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024 / 11TH MAGHA, 1945 ``` ## **`WP(C) NO. 3493 OF 2024`** ## **`PETITIONERS:`** - `1 ABOOBACKER SIDHIQ.M.K, AGED 35 YEARS S/O. BEERAN.M.K, MOOSAMIKANDIYIL, WESTHILL. P.O, KOZHIKODE, PIN - 673005` - `2 NOORJAHAN.N.P, AGED 25 YEARS W/O. ABOOBACKER SIDHIQ, MOOSAMIKANDIYIL, WESTHILL. P.O, KOZHIKODE, PIN - 673005 BY ADVS. K.PRAVEEN KUMAR JUNAIS V.T.` ## **`RESPONDENTS:`** - `1 THE DISTRICT COLLECTOR, CIVIL STATION.P.O, KOZHIKODE, PIN - 673020` - `2 THE SUB DIVISIONAL MAGISTRATE & SUB COLLECTOR, CIVIL STATION. P.O, KOZHIKODE, PIN - 673020` - `3 THE AGRICULTURAL OFFICER, PERUVAYAL AGRICULTURE OFFICE, PERUVAYAL.P.O, KOZHIKODE, PIN - 673008` - `4 THE VILLAGE OFFICER, PERUVAYAL VILLAGE OFFICE, PERUVAYAL.P.O, KOZHIKODE, PIN - 673008` - `5 PERUVAYAL GRAMA PANCHAYATH REP BY ITS SECRETARY, MAVOOR ROAD, NEAR VARIETY HOTEL, POOVATTUPARAMBA, KOZHIKODE, PIN - 673008` 2 W.P(C).3493/2024 ## **`OTHER PRESENT:`** ``` SMT AMMINIKKUTY, SR GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P(C).3493/2024 3 # **P. V. KUNHIKRISHNAN, J.** ## **------------------------------------------W.P(C).No.3493 of 2024** **------------------------------------------Dated this the 31[st] day of January, 2024** ## **JUDGMENT** ## The above Writ Petition is filed with the following prayers: I) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P2 and to quash the original of the same; II) To declare that Ext. P2 cannot stand in the eye of law in the light of decisions reported in _Haridasan Vs. District Collector (2023 KHC online 10370), Niyas Vs. District Collector, Palakkad (2023 KHC online 9342), and Aparna Sasi Menon Vs. Revenue Divisional Officer, Irinjalakuda (2023(6) KHC 83)_ . III) Issue a writ of mandamus or any appropriate writ order or direction to the 2nd respondent to pass fresh orders on the Form 5 application submitted by the petitioners and covered by Ext. P2. IV) To permit the petitioners to produce translations of the vernacular documents as and when directed by this Hon'ble Court; W.P(C).3493/2024 4 V) Issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case; **==> picture [31 x 13] intentionally omitted <==** 2. The petitioners are the joint owners in absolute possession of 1.22 Ares of property comprised in Re.Sy.No.1/15 of Peruvayal Village of Kozhikode Taluk. According to the petitioners, the land had been converted long before the commencement of the Kerala Conservation of Paddy and Wet Land Act, 2008 but erroneously included in the Data Bank. So the petitioners submitted an application in Form 5 to the 2[nd] respondent to remove the entry of their property from Data Bank. But, as per Ext.P2, the application of the petitioners has been rejected on the ground that the subject land is a paddy land and that the change of nature of the subject land would adversely affect the neighbouring paddy field and environment and obstruct the water flow. It is submitted that the subject land is land locked and there are no paddy field nearby. It is also submitted that, there is no water source in the area to make the subject land feasible for paddy cultivation. Hence, Ext.P2 is W.P(C).3493/2024 5 unsustainable is the submission. Therefore, this Writ Petition is filed. 3. Heard counsel for the petitioner and the Government Pleader. 4. This Court perused Ext.P2 order. Ext.P2 is not a speaking order. Except relying on the report of the Agricultural Officer, the contention of the petitioners is not adverted while passing Ext.P2 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 Commitee 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. W.P(C).3493/2024 6 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 petitioners, 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 2[nd] respondent has not applied his mind and simply accepted the report. It is also submitted that, it is mandatory on the part of the 2[nd] respondent to call for a report from the Kerala State Remote Sensing and Environment Centre [for short, ‘the KSREC’] to ascertain the status of the land as on 12.08.2008 when the Act came into force. It is submitted that the status of the land as on 12.08.2008 can be ascertained only through a 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 petitioners. The impugned order is not a speaking order. The W.P(C).3493/2024 7 contentions of the petitioners 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.P2 order is set aside. b) The 2[nd] respondent is directed to reconsider Form 5 application submitted by the petitioners, as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. c) The petitioners are 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. d) The petitioners 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).3493/2024 8 ## **`APPENDIX OF WP(C) 3493/2024`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE LAND TAX RECEIPT NO. KL 11014100408/2024 DATED 16.01.2024 Exhibit P2TRUE COPY OF THE PROCEEDING NO. RDO KKD/4586/2021-C4 DATED 09.10.2023 Exhibit P3TRUE COPY OF THE PHOTOGRAPHS ```