Thomas P.V vs District Collector
2023 Latest Caselaw 10516 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
     MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
                        WP(C) NO. 15412 OF 2023
PETITIONER :

          THOMAS P.V
          AGED 63 YEARS, S/O VARGHESE,
          PLAVILAKANDATHIL HOUSE, NETTIKULAM,
          BHOODANAM P.O, MALAPPURAM, PIN - 679 334

          BY ADVS.
          P.MOHAMED SABAH
          LIBIN STANLEY
          SAIPOOJA
          SADIK ISMAYIL
          M.MAHIN HAMZA
          R.GAYATHRI
          ALWIN JOSEPH



RESPONDENTS :

    1     DISTRICT COLLECTOR,
          MALAPPURAM, CIVIL STATION,
          MALAPPURAM, PIN - 676605

    2     REVENUE DIVISIONAL OFFICER/ SUB COLLECTOR
          PERINTHALMANNA, RDO OFFICE, SHORNUR-PERINTHALMANNA
          ROAD, PERINTALMANNA, MALAPPURAM,
          PIN - 679 322

    3     TAHSILDAR,
          NILAMBUR TALUK OFFICE, NILAMBUR P.O,
          MALAPPURAM, KERALA, PIN - 679 329

    4     LOCAL LEVEL MONITORING COMMITTEE,
          POTHUKAL, REPRESENTED BY ITS CONVENOR,
          AGRICULTURAL OFFICER, KRISHI BHAVAN,
          POTHUKAL, NILAMBUR, KERALA, PIN - 679 329
 WP(C) NO. 15412 OF 2023
                                      2



     5       THE DIRECTOR,
             KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE,
             1ST FLOOR, VIKASBHAVAN, UNIVERSITY OF KERALA SENATE
             HOUSE CAMPUS, PMG, THIRUVANANTHAPURAM,
             KERALA, PIN - 695 033

             BY SMT.AMMINIKUTTY K., SENIOR GOVERNMENT PLEADER




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   16.10.2023,   THE   COURT   ON       THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 15412 OF 2023
                                     3




                    BECHU KURIAN THOMAS, J.
                   =-=-=-=-=-=-=-=-=-=-=-=-=-=
                     W.P.(C) No.15412 of 2023
                   =-=-=-=-=-=-=-=-=-=-=-=-=-=
               Dated this the 16th day of October, 2023


                               JUDGMENT

Petitioner, is the owner of 1 Hectare 24 Ares 91 Sq.mtrs. of land in

Re-Survey No.85/2-2 of Block No.99 of Pothukal Village, Nilambur Taluk,

Malappuram. Challenge is against Ext.P3 order of the Sub Collector,

Perinthalmanna, whereby the petitioner's request to remove his land from

the data bank was refused.

2. Petitioner alleges that his land was converted prior to the

enactment of the Kerala Conservation of Paddy Land and Wetland Act,

2008 (for short, the Act), and it is presently a 'dry land'. However, when

the data bank was prepared under Section 5(4)(i) of the Act, his land was

wrongly included in it. Since the petitioner requires the land for other

purposes, he submitted an application in Form-5, 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 Sub Collector. Petitioner alleges that the rejection was based solely on WP(C) NO. 15412 OF 2023

the report of the Agricultural Officer, without any site inspection and

without any application of mind and is hence not a speaking order.

4. I have heard Sri.P.Mohamed Sabah, learned counsel for the

petitioner and Smt.K.Amminikutty, the learned Senior Government

Pleader and have also perused Ext.P3 order passed by the Sub Collector.

5. Petitioner's application in Form 5 of the Rules was rejected relying

on the Agricultural Officer's report dated 25.08.2022. The said report

stated that petitioner's land need not be excluded from the data bank.

Petitioner asserted that the surrounding areas are well-developed with

multiple buildings and also that the impugned order had not even referred

to the suitability of the land for paddy cultivation.

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

Irinjalakuda [2023 (6) KHC 83] it has been observed that when the WP(C) NO. 15412 OF 2023

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 Agricultural

Officer. The Sub Collector could have atleast perused the scientific data

for deciding the matter by directing the petitioner to apply for the same

or by conducting a site visit. There is also no finding that the land is

suitable for paddy cultivation and whether there are any paddy lands in

the nearby areas. Since the order is bereft of material particulars and is

not issued on any perceivable data, it cannot be said to be a reasoned

order. Discernibly, 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.P3 is quashed and the 2 nd

respondent is directed to reconsider the Form 5 application submitted by

the petitioner and issue fresh orders, after considering the report of

KSREC, if applied and obtained and other relevant factors mentioned in

rule 4(4f) of the Rules. The order, as directed above, shall be issued

within a period of three months from the date of receipt of a copy of this WP(C) NO. 15412 OF 2023

Judgment.

The writ petition is allowed as above.

Sd/-

BECHU KURIAN THOMAS, JUDGE

RKM WP(C) NO. 15412 OF 2023

APPENDIX OF WP(C) 15412/2023

PETITIONER'S EXHIBITS :

Exhibit P1 TRUE COPY OF THE TAX RECEIPT DATED 20.01.2022 ISSUED BY THE POTHUKAL VILLAGE OFFICE

Exhibit P2 TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK PUBLISHED ON 23.03.2012

Exhibit P3 TRUE COPY OF THE ORDER DATED 23.02.2023 PASSED BY THE 2ND RESPONDENT

Exhibit P4 TRUE COPY OF THE APPEAL DATED 21.03.2023 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

Exhibit P5 TRUE COPY OF THE ACKNOWLEDGEMENT DATED 22.03.2023 ISSUED FROM THE OFFICE OF THE RESPONDENT NO.1 ACKNOWLEDGING THE RECEIPT OF EXHIBIT P4 APPEAL

Exhibit P6 TRUE COPY OF THE APPLICATION DATED 05.04.2023 SUBMITTED BY PETITIONER BEFORE THE RESPONDENT NO.1 APPELLATE AUTHORITY

Exhibit P7 TRUE COPY OF THE ACKNOWLEDGEMENT DATED 05.04.2023 ISSUED FROM THE OFFICE OF THE RESPONDENT NO.1 ACKNOWLEDGING THE RECEIPT OF EXHIBIT P6 APPLICATION