Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 19TH DAY OF DECEMBER 2023 / 28TH AGRAHAYANA, 1945 WP(C) NO. 40509 OF 2023 PETITIONER: HARRIS AGED 36 YEARS S/O ABDU RAHIMAN CHIPPEELANGODU (HOUSE), VELIMANNA (POST), RAROTH VILLAGE, THAMARASSERY TALUK, KOZHIKODE DISTRICT, PIN - 673573 BY ADV JESWIN P.VARGHESE RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, TRIVANDRUM, PIN - 695001 2 THE DISTRICT COLLECTOR CIVIL STATION, CIVIL STATION (POST), KOZHIKODE DISTRICT, PIN - 673122 3 THE SUB DIVISIONAL MAGISTRATE & SUB COLLECTOR CIVIL STATION, CIVIL STATION (POST), KOZHIKODE DISTRICT, PIN - 673122, PIN - 673122 4 THE VILLAGE OFFICER VAVAD VILLAGE, VAVAD POST, KOTUVALLI, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673572 5 THE AGRICULTURAL OFFICER KRISHI BHAWAN, KOTUVALLI, KOTUVALLI POST KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673572 6 THE DIRECTOR KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTER, FIRST FLOOR, VIKAS BHAVAN, NEAR TO LEGISLATIVE ASSEMBLY BUILDING, TRIVANDRUM, PIN - 695033 BY ADV.SRI.RIYAL DEVASSY, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.40509/2023 2
JUDGMENT
Dated this the 19th day of December, 2023 Petitioner has approached this Court aggrieved by Ext.P4 order whereby Ext.P3 Form-5 application has been rejected by the third respondent solely relying on the report of the Village Officer that the property is a water logged area. Petitioner submits that no site inspection has been conducted by the third respondent nor a report from the KSRSEC would obtain.
2. Petitioner is the owner in possession of 4.047 Ares
of land comprised in Re.Sy.No.52/4 of Vavad Village, Kozhikode Taluk, Kozhikode District. Petitioner contended that there is no independent consideration of the application by the third respondent while issuing Ext.P4 order. Petitioner submits that in respect of the similarly situated property, which is nearby to the petitioner's property, necessary orders have been issued for removing the property from the data bank.
3. This Court in Salim C.K. and Another v. State of Kerala and Others [2017 (1) KHC 394] has held that the WP(C) NO.40509/2023 3 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) 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 KSRSEC. This Court in Muraleedharan Nair v. Revenue
WP(C) NO.40509/2023 4
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 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. This Court in Suraj v. State of Kerala [2018 (1) KLT 1], has elaborated the features of a wet land.
4. In spite of these categorical declaration by this WP(C) NO.40509/2023 5
Court in a catena of judgments as cited above, the application submitted by the petitioner has been rejected solely relying on the report of the Village Officer that the property is a water logged area and not to remove the land from the data bank.
5. In view of the above, Ext.P4 order is set aside with
a consequential direction to the third respondent to reconsider Ext.P3, Form-5 application submitted by the petitioner. If the petitioner submits an application to the Agricultural Officer concerned seeking to obtain KSRSEC
report paying the prescribed fee within a period of two weeks, the third respondent shall pass orders afresh in Form-5 application 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, after conducting a site inspection. Petitioner will be free to file argument notes incorporating copies of the documents/ judgments (including copy of the judgment in Suraj v. State
WP(C) NO.40509/2023 6 of Kerala [2018 (1) KLT 1]) relied on by him to substantiate his contentions and the third respondent while reconsidering the matter as directed above, shall advert to the findings by this Court in those judgments cited (supra) and also the contentions of the petitioner in the argument notes submitted by him.
With the abovesaid directions, the writ petition is disposed of as above. Sd/- VIJU ABRAHAM JUDGE csl WP(C) NO.40509/2023 7 APPENDIX OF WP(C) 40509/2023 PETITIONER'S EXHIBITS Exhibit P1 A TRUE COPY OF LAND TAX RECEIPT NO. KL11041905208/2021 ISSUED BY THE 4TH RESPONDENT DATED 10.11.2021 Exhibit P2 THE PHOTOGRAPHS SHOWING THE LIE OF PROPERTY DESCRIBED IN EXT. P1 Exhibit P3 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER IN FORM NO. 5 BEFORE THE 3RD RESPONDENT DATED 23.11.2021 Exhibit P4 A TRUE COPY OF THE ORDER PASSED BY 3RD RESPONDENT UNDER FILE NO. RDOKKD/420/2022-C5 DATED 10.01.2023