Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 3RD DAY OF OCTOBER 2023 / 11TH ASWINA, 1945 WP(C) NO. 32304 OF 2023 PETITIONER : HARSHA, AGED 46 YEARS D/O AHAMMED KOYA, KALATHIL, KUTTIKKATTOR KOZHIKODE, PIN - 673 008. BY ADV UNNI. K.K. (EZHUMATTOOR) RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2 DISTRICT COLLECTOR CIVIL STATION, ERANHIPALAM, KOZHIKODE, PIN - 673 020. 3 REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, CIVIL STATION, KOZHIKODE, PIN - 673 020. 4 LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, PERUVAYAL GRAMA PANCHAYATH, POOVATTUPARAMBA P.O, KOZHIKODE DISTRICT, PIN - 673 008. 5 VILLAGE OFFICER, VILLAGE OFFICE, KUTTIKKATTOR, KOZHIKODE, PIN - 673 008.
ADV AMMINIKUTTY K -SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BECHU KURIAN THOMAS, J ......…............................................. W.P.(C).No.32304 of 2023 …................................................ Dated this the 3rd day October, 2023
JUDGMENT
Petitioner, is the owner of 2.7328 Ares of property in Re- Survey No.154/1 of 2 of Kuttikkattur Village, Kozhikode Taluk. Challenge is against Ext.P11 order of the Revenue Divisional Officer, whereby petitioner’s request to remove her land from the data bank stands rejected.
2. Petitioner alleges that her land was converted prior to the
enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, the Act) and that it is a 'dry land'. However, when the data bank was prepared under Section 5(4)(i) of the Act, her land was wrongly included in it. Since petitioner requires the land for other purposes, she submitted Form-5 application, invoking Rule 4(4d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for short, the Rules).
3. By the impugned order, petitioner’s application was rejected by
the Revenue Divisional Officer based on the report of the Village Officer dated 24.11.2021. Petitioner alleges that the application was rejected without even a site inspection or any application of mind and is hence not a speaking order.
4. I have heard Sri.Unni K.K.(Ezhumattoor), learned counsel for the petitioner and Smt. Amminikutty K., the learned Senior
Government Pleader and have also perused Ext.P11 order
passed by the Revenue Divisional Officer.
5. Petitioner’s application in Form 5 of the Rules was rejected
relying on the Village Officer’s report dated 24.11.2021. The said report stated that petitioner’s land need not be excluded from the data bank. Petitioner relies upon the KSREC report produced as Ext.P10 and asserts that the surrounding areas are well-developed with buildings on them and also that the impugned order has not referred to the suitability for cultivation as a paddy land.
6. In the decision in Arthasasthra Ventures (India) LLP v. State of
Kerala [2022 (7) KHC 591] and in Muraleedharan Nair R. v. Revenue Divisional Officer [2023 (4) KHC 524], this Court had observed that the RDO cannot merely follow the report of the Agricultural Officer or the LLMC without any independent assessment of the status of the land. This Court had also observed that while considering an application filed under Form 5, the Authority must consider whether the removal of the property from the data bank will affect paddy cultivation in the land and also whether it will affect the nearby paddy fields. Similarly, in the decision in Aparna Sasi Menon v. Revenue Divisional Officer [(2023) KHC Online 592] it has been observed that when the competent authority considers a Form-5 application, the predominant consideration should be whether the land which is sought to be excluded from data bank is one where paddy cultivation is possible and feasible including the existence of irrigation facilities.
7. A perusal of the impugned order reveals that the
aforementioned specific aspects have not been adverted to, and instead, the application has been rejected solely on the basis of the report of the Village Officer. There is also no finding that the land is suitable for paddy cultivation and whether there is any paddy land suitable for cultivation in the nearby areas. Evidently, there is no independent application of mind to the relevant circumstances, and hence, the impugned order is liable to be set aside and a fresh consideration be made.
8. In the above circumstances, Ext.P11 is quashed and the 3 rd
respondent is directed to reconsider the Form 5 application submitted by the petitioner and issue orders afresh after considering the report of KSREC and other relevant factors stipulated in Rule 4(4f) of the Rules. The order, as directed above, shall be issued within a period of two months from the date of receipt of a copy of this Judgment. The writ petition is allowed as above. BECHU KURIAN THOMAS JUDGE AMV/04/10/2023 APPENDIX OF WP(C) 32304/2023 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPIES OF THE PHOTOGRAPHS SHOWING
THE NATURE OF THE LAND (3 PAGES) EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 13.4.2021 ALONG WITH FIELD VERIFICATION NOTE OBTAINED UNDER RIGHT TO INFORMATION ACT EXHIBIT P3 TRUE COPY OF THE ORDER DATED 28.3.2022 OF THE 3RD RESPONDENT EXHIBIT P4 TRUE COPY OF THE APPLICATION SUBMITTED UNDER RIGHT TO INFORMATION ACT, DATED 1.6.2022. EXHIBIT P5 TRUE COPY OF THE REPLY DATED 1.7.2022 ISSUED BY THE 3RD RESPONDENT EXHIBIT P6 TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, KUTTIKKATTUR DATED 24.11.2021 EXHIBIT P7 TRUE COPY OF THE APPLICATION SUBMITTED UNDER RIGHT TO INFORMATION ACT TO THE 5TH RESPONDENT DATED 1.6.2022 EXHIBIT P8 TRUE COPY OF THE REPLY DATED 14.06.2022 OF THE 5TH RESPONDENT EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 2.9.2022 OF THIS HON'BLE COURT IN W.P[C]NO.26843/2022 EXHIBIT P10 TRUE COPY OF THE REPORT DATED 22.6.2023 OF KSRSEC EXHIBIT P11 TRUE COPY OF THE ORDER DATED 7.8.2023 OF THE 3RD RESPONDENT
TRUE COPY