A. Prakash vs The Sub Collector
2023 Latest Caselaw 7788 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                    THE HONOURABLE MR.JUSTICE N.NAGARESH
         WEDNESDAY, THE 26TH DAY OF JULY 2023 / 4TH SRAVANA, 1945
                          WP(C) NO. 24466 OF 2023
PETITIONER:

              A. PRAKASH
              AGED 54 YEARS, S/O P.A. KRISHNAN, KURUUKKAYIL THAZHAM
              HOUSE, EDAKKADU P.O., KOZHIKKODE DISTRICT, PIN - 673 005

              BY ADV
              GEORGEKUTTY MATHEW


RESPONDENTS:

     1        THE SUB COLLECTOR
              THE OFFICE OF SUB COLLECTOR, CIVIL STATION,
              KOZHIKKODE P.O, KOZHIKODE DISTRICT., PIN - 673 020

     2        THE AGRICULTURAL OFFICER
              KRISHI BHAVAN THALAKKULATHOOR P.O,
              KOZHIKODE DISTRICT., PIN - 673 613

     3        THE VILLAGE OFFICER
              THE VILLAGE OFFICE, THALAKULATHOOR P.O,
              KOZHIKKODE DISTRICT., PIN - 673 613


              BY ADV
              SMT. DEVISREE R. - GOVERNMENT PLEADER


     THIS    WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
26.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(C) NO.24466 OF 2023

                                 2




                           JUDGMENT

Dated this the 26th day of July, 2023

The petitioner, who is owner of 58.3 Ares of property in

Thalakulathoor Village, is challenging Ext.P3 order of the Sub

Collector, Kozhikode, whereby the petitioner's request to

remove the petitioner's land from Data Bank stands rejected.

2. The petitioner owns 58.3 Ares of property

comprised in Re-Survey No.33/2 of Thalakulathoor Village of

Kozhikkode District. According to the petitioner, the land

stood converted prior to the year 2008 when the Kerala

Conservation of Paddy Land and Wetland Act, 2008 was

enacted. The land is presently in the nature of 'Purayidam'.

3. However, when a Data Bank of Paddy Land and

Wetland was constituted under Section 5(4)(i) of the Kerala

Conservation of Paddy Land and Wetland Act, 2008, the

petitioner's land was included in the Data Bank. The petitioner W.P(C) NO.24466 OF 2023

wanted to use the land for other purposes. Therefore, the

petitioner submitted application in Form-5, invoking Rule

4(4D) of the Kerala Conservation of Paddy Land and Wetland

Rules, 2008.

4. The petitioner's Form-5 application has been

rejected by the Sub Collector as per Ext.P3 order. The

petitioner challenges Ext.P3 order. According to the petitioner,

the Sub Collector has rejected the petitioner's application

solely based on a report submitted by the Village Officer. The

petitioner submits that it is evident from the order that the Sub

Collector has neither made a Site inspection nor he has

applied his mind in passing the impugned order.

5. The property of the petitioner lies in the nature of

'Purayidam'. Had the Sub Collector harboured any doubt in

this regard, he should have ordered to obtain scientific data as

provided under Rule 4(4F) of the Rules, 2008 to ascertain the

nature of the land as it stood in the year 2008, contended the W.P(C) NO.24466 OF 2023

petitioner. If the order of the Sub Collector is allowed to stand,

it will interfere with the constitutional right of the petitioner to

freely enjoy the land, which in turn will be violative of Article

300A of the Constitution of India, urged the petitioner.

6. Government Pleader entered appearance and

resisted the writ petition. The Government Pleader denied all

the averments made by the petitioner in the writ petition.

When the petitioner submitted Form-5 application to remove

land from Data Bank, the Sub Collector sought a report from

the Village Officer.

7. The Village Officer submitted a Report. The said

Report was made on the basis of a Site inspection. The report

specifically recommended that the land is not to be removed

from the Data Bank as it would defeat the very purpose of the

Act, 2008. The petitioner has not advanced any legal reason

to unsettle the decision taken by the Sub Collector, the

Government Pleader insisted.

W.P(C) NO.24466 OF 2023

8. I have heard the learned counsel for the petitioner

and the learned Government Pleader representing the

respondents.

9. The petitioner owns 58.3 Ares of property

comprised in Re-survey No.33/2 of Thalakulathoor Village of

Kozhikkode District. The petitioner's land was included in the

Data Bank. The petitioner wanted to use the land for other

purposes. Therefore, the petitioner submitted Form-5

application.

10. I have perused Ext.P3 order passed by the sub

Collector, Kozhikode. The Sub Collector has passed Ext.P3

order solely based on a report of the Village Officer,

Thalakulathoor. The report of the Village Officer would

indicate that the land is in a water logged area and there are

no buildings. However, the report would state that there are

coconut trees 120 in number which were planted 15 years

ago. If those coconut trees were planted 15 years ago, W.P(C) NO.24466 OF 2023

necessarily, those were planted somewhere in 2007-2008. It

is possible that the land is converted prior to the enactment of

the Kerala Conservation of Paddy land and Wetland Act,

2008.

11. In such circumstances, taking into consideration

the report submitted by the Village Officer, since there is a

serious doubt regarding the year in which the conversion has

been taken place, the Sub Collector ought to have obtained a

KSREC report in the matter. In the facts of the case, I am of

the view that the Sub Collector shall reconsider the Form-5

application submitted by the petitioner and decide the matter

on the basis of scientific data.

The writ petition is therefore disposed of, setting aside

Ext.P3 and directing that if the petitioner submits an

application for KSREC report to the 2nd respondent-

Agricultural Officer paying the prescribed fee within a period of

two weeks, then the 1st respondent-Sub Collector shall W.P(C) NO.24466 OF 2023

reconsider the Form-5 application submitted by the petitioner

and take appropriate decision thereon, taking into

consideration the KSREC report also within a further period of

two months from the date of receipt of KSREC report.

Sd/-

N.NAGARESH JUDGE ded W.P(C) NO.24466 OF 2023

APPENDIX OF WP(C) 24466/2023

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED 14.07.2023 OF THE LAND OF THE PETITIONER ISSUED BY THE 3RD RESPONDENT EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 25.02.2023 ISSUED BY THE 3RD RESPONDENT EXHIBIT P3 TRUE COPY OF THE ORDER DATED 09.01.2023 PASSED BY THE 1ST RESPONDENT IN FORM 5 APPLICATION EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 20.04.2023 ISSUED BY THE 2ND RESPONDENT EXHIBIT P5 TRUE PHOTOGRAPHS (4 NOS) EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 27.05.2022 IN WP© NO. 6756 OF 2022 EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 14.12.2020 IN WP© NO. 33071 OF 2019