Sailaja Sunil vs Revenue Divisional Officer
2023 Latest Caselaw 10553 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. 22656 OF 2023


PETITIONER:

             SAILAJA SUNIL,
             AGED 61 YEARS
             W/O.SUNIL VASUDEVAN,
             CHEMPAKASSERIL VEEDU,
             C.S.ROAD, JAGATHI,THYCAUD.P.O.,
             THIRUVANANTHAPURAM, PIN - 695014
             BY ADVS.
             K.J.MANU RAJ
             K.VINAYA


RESPONDENTS:

       1     REVENUE DIVISIONAL OFFICER,
             REVENUE DIVISIONAL OFFICE,
             ADOOR, PATHANAMTHITTA DISTRICT, PIN - 691523
       2     THE VILLAGE OFFICER,
             OMALLUR VILLAGE OFFICE,
             PATHANAMTHITTA DISTRICT - 689647
       3     AGRICULTURE OFFICER,
             KRISHI BHAVAN OMALLUR,
             KOZHENCHERRY TALUK,
             PATHANAMTHITTA DISTRICT-689647

             BY ADV.
             K.AMMINIKUTTY
             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:
 W.P.(C).No.22656 of 2023
                                   -:2:-




                     BECHU KURIAN THOMAS, J.
                    --------------------------------------
                      W.P.(C).No.22656 of 2023
                    --------------------------------------
                Dated this the 16th day of October, 2023


                              JUDGMENT

Petitioner, is the owner of 44.29 Ares of property in Re-Survey

No.192/1 of Block No.26 of Omalur Village, Kozhenchery Taluk,

Pathanamthitta District.Challenge is against Ext.P3 order of the

Revenue Divisional Officer, Adoor, whereby the petitioner's request to

remove her land from the data bank was refused.

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 it is presently 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 the petitioner requires the land

for other purposes, she 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 Revenue Divisional Officer. Petitioner alleges that the rejection W.P.(C).No.22656 of 2023

was based solely on 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. K.J.Manu Raj, learned counsel for the

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

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

Divisional Officer.

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

relying on the Agricultural Officer's report dated 27.12.2022. 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 W.P.(C).No.22656 of 2023

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 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 RDO 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 W.P.(C).No.22656 of 2023

consideration be made.

8. In the above circumstances, Ext.P3 is quashed and the 1 st

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 Judgment.

The writ petition is allowed as above.

Sd/-

BECHU KURIAN THOMAS JUDGE

Jka/16.10.23.

W.P.(C).No.22656 of 2023

APPENDIX OF WP(C) 22656/2023

PETITIONER'S EXHIBITS Exhibit P 1 A TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, OMALLUR VILLAGE TO THE PETITIONER DATED 25.4.2021.

Exhibit P 2 A TRUE COPY OF THE APPLICATION IN FORM 5 DATED 24.6.2022 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.

Exhibit P 3                A   TRUE  COPY   OF  THE   ORDER   DATED
                           29.1.2023 ISSUED BY THE 1ST RESPONDENT.

Exhibit P 4                A TRUE COPY OF THE RELEVANT PAGE OF THE
                           DATA BANK DATED NIL.