WP(C) No. 6915 of 2024, In re: Sreelatha S v. State of Kerala & others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` THURSDAY, THE 22[ND] DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945 ``` ## **`WP(C) NO. 6915 OF 2024`** ## **`PETITIONER(S):`** ``` SMT. SREELATHA S AGED 54 YEARS ``` ``` W/O BABU PILLAI, VILAYIL HOUSE, KUTHIRAKALAM, MANICKAL VILLAGE, NEDUMANGAD TALUK (PIRAPPANKODE P. O), THIRUVANANTHAPURAM, PIN - 695607 ``` ``` BY ADVS. ``` ``` ABRAHAM MATHEW (VETTOOR) ANIL ABEY JOSE VISHNUJA P.M. ``` ``` AMAL TOM ``` ## **`RESPONDENT(S):`** - **`1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE DISTRICT COLLECTOR DISTRICT COLLECTOR'S OFFICE, 2ND FLOOR, CIVIL STATION BUILDING, CIVIL STATION ROAD, THIRUVANANTHAPURAM, PIN - 695043`** - **`3 THE REVENUE DIVISIONAL OFFICER OFFICE OF THE RDO, NEDUMANGAD, THIRUVANANTHAPURAM, PIN - 695541`** - **`4 TAHASILDAR TAHASILDAR OFFICE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT., PIN - 695541`** - **`5 THE CONVENER LOCAL LEVEL MONITORING COMMITTEE (LLMC) (AGRICULTURAL OFFICER, KRISHIBHAVAN), MANICKAL, PIRAPPANKODE P. O, THIRUVANANTHAPURAM, PIN - 695607`** ``` WP(C) NO.6915 OF 2024 ``` 2 ``` 6THE VILLAGE OFFICER MANICKAL VILLAGE OFFICE, MANICKAL, PIRAPPANCODE, THIRUVANANTHAPURAM, PIN - 695607 ``` ``` BY ADV. SRI. B.S. SYAMANTAK, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.6915 OF 2024 ``` 3 **P.V.KUNHIKRISHNAN, J. -----------------------------------W.P.(C) No.6915 of 2024 ------------------------------------Dated this the 22[nd ] day of February, 2024** ## **JUDGMENT** The above Writ Petition is filed with the following prayers: “i) Issue a writ of certiorari or any other appropriate writ, direction or order, quashing Ext. P8 order and P7 report of the 5th respondent relied upon by the 3rd respondent while passing Ext.P8 order. ii) Issue a writ of mandamus or other appropriate writ, orders or direction commanding the 3rd respondent to take up Ext.P5 application submitted by the petitioner for de-nova consideration and dispose of the same on obtaining proper report with respect to the said property including that from Kerala State Remote Sensing Sand Environment Centre, (KSREC) and making a local inspection and in ``` WP(C) NO.6915 OF 2024 ``` 4 accordance with law affording sufficient opportunity to the petitioner. iii) Issue such other and necessary orders which are deemed fit and proper to secure the ends of justice. iv) Dispense with production of English translation of the documents in malayalam.” **==> picture [33 x 12] intentionally omitted <==** 2. This Writ Petition is filed seeking a direction to the 3[rd] respondent to reconsider the order passed in Form 5 application under the Kerala Conservation of Paddy Land and Wet Land Rules, 2008 [for short, ‘the Rule, 2008’] and on the basis of the report of the Kerala State Remote Sensing and Environment Centre, Thiruvananthapuram [for short, ‘the KSREC’]. The petitioner is the absolute owner in possession of an extent of 5.35 Ares of land comprised in Re.Sy.No.39/21, Block No. 028 in Manickal Village, Nedumangad Taluk, Thiruvananthapuram District, is 5 ``` WP(C) NO.6915 OF 2024 ``` the submission. Ext.P1 is the basic tax receipt and Ext.P2 is the possession certificate issued to the petitioner. According to the petitioner, the property is one which has been converted as dry land decades prior to the implementation of Kerala Conservation of Paddy and Wet Land Act, 2008. It is also submitted that there exist very old coconut trees and other miscellaneous trees in the property as evident by Ext.P3 series of photographs. It is also submitted that the neighboring properties are also converted land with several trees. However, the petitioner's property continued to be paddy land in the revenue records and therefore, the petitioner filed Ext.P5 application in the prescribed Form 5, is the submission. The 3[rd] respondent rejected the said application as per Ext.P8 order solely based on Ext.P7 report. The same has been done without affording an opportunity of hearing to the petitioner to establish her case and without ``` WP(C) NO.6915 OF 2024 ``` 6 hearing her, is the submission. Hence, this writ petition is filed. 3. Heard learned counsel appearing for the petitioner and the learned Government Pleader. 4. This Court perused Ext.P8 order. Ext.P8 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.P8 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 7 ``` WP(C) NO.6915 OF 2024 ``` 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 8 ``` WP(C) NO.6915 OF 2024 ``` 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. 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 3[rd] 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.P8 order is set aside. b) The 3[rd] 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 ``` WP(C) NO.6915 OF 2024 ``` 9 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 3[rd] respondent. If any application for the KSREC report is submitted, the Revenue Divisional Officer need to consider the Form 5 application within a period of three months from the date of receipt of the report from KSREC. d) The petitioner will produce the ``` WP(C) NO.6915 OF 2024 ``` 10 certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 3[rd] respondent for compliance. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` WP(C) NO.6915 OF 2024 ``` 11 ## **`APPENDIX OF WP(C) 6915/2024`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1A TRUE COPY OF THE BASIC TAX RECEIPT NO.KL01030901549/2002DATED 10-03-2022 ``` ``` EXHIBIT P2A TRUE COPY OF A POSSESSION CERTIFICATE ISSUED TO THE PETITIONER DATED 09-03-2023 ``` ``` EXHIBIT.P3A TRUE COPY OF PHOTOGRAPH OF THE SERIESPROPERTY TAKEN FROM DIFFERENT ANGLES EXHIBIT P4A TRUE COPY OF SURVEY SKETCH OF FIELD NO.39 OF THE VILLAGE ``` ``` EXHIBIT P5A TRUE COPY OF THE FORM 5 APPLICATION MADE BY THE PETITIONER DATED 10-03-2022 ``` - `EXHIBIT P6 A TRUE COPY OF REPLY RECEIVED FROM THE VILLAGE OFFICER DATED 09-01-2024` - `EXHIBIT P7 A TRUE COPY OF THE REPORT OF AGRICULTURAL OFFICER DATED 27-04-2023` - `EXHIBIT P8 A TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT UNDER FILE NO.837/2023 DATED 18-05-2023.` RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE