Joshy vs The District Collector
2023 Latest Caselaw 10928 Ker

Citation : 2023 Latest Caselaw 10928 Ker
Judgement Date : 26 October, 2023

Kerala High Court

Joshy vs The District Collector on 26 October, 2023

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
 THURSDAY, THE 26TH DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945
                      WP(C) NO. 7425 OF 2023
PETITIONER:

          JOSHY,
          AGED 36 YEARS
          S/O POULOSE, KOLLANNUR AVANUKARAN HOUSE, PULLAZHI
          P.O., ARANATTUKARA VILLAGE, THRISSUR TALUK,
          THRISSUR DISTRICT, PIN - 680012
          BY ADVS.
          P.P.BIJU
          BABU JOSEPH PYNADATH

RESPONDENTS:

    1     THE DISTRICT COLLECTOR,
          THRISSUR, CIVIL STATION, AYYANTHOLE, THRISSUR,
          PIN - 680003
    2     THE REVENUE DIVISIONAL OFFICER,
          REVENUE DIVISION OFFICE, AYYANTHOLE, THRISSUR,
          PIN - 680003
    3     THE VILLAGE OFFICER,
          AYYANTHOLE VILLAGE OFFICE, AYYANTHOLE, THRISSUR
          DISTRICT, PIN - 680003
    4     THE LOCAL LEVEL MONITORING COMMITTEE
          REPRESENTED BY CONVENER, AGRICULTURE OFFICER,
          KRISHIBHAVAN, AYYANTHOLE, THRISSUR DISTRICT,
          PIN - 680003
OTHER PRESENT:

          GP - sri. RIYAL DEVASSY


    THIS WRIT PETITION (CIVIL) HAVING COME UP
FOR ADMISSION ON 26.10.2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C). No7425 of 2023        :2:



                           VIJU ABRAHAM, J.
         --     -- -- -- -- -- -- -- -- -- -- -- --
                       W.P.(C). No.7425 of 2023
         --     -- -- -- -- -- -- -- -- -- -- -- --
                 Dated this the 26th day of October, 2023

                             JUDGMENT

The petitioner has approached this Court challenging Ext.P5

order, whereby the application submitted by the petitioner in

Form-5 has been rejected.

2. The petitioner is having an extent of 19.57 Ares of land in

Sy. No.1095/4-3 of Ayyanthole Village, Thrissur Taluk, Thrissur

District. The petitioner submits that the land is lying as a dry land,

but it is mistakenly described as paddy land in the basic tax

was submitted to remove the property from the data bank.

Pursuant to the direction issued by this Court by Ext.P4 judgment,

the 2nd respondent has rejected the application submitted by the

petitioner as per Ext.P5. The petitioner relying on the KSREC

report, which is produced as Ext.P8, submits that in the year 2007,

the property was observed under fallow land and it was found to be

mixed vegetation/plantation during the year 2010 and 2015 and a

building/structure was observed during the imagery of year 2018.

The petitioner would further contend that a perusal of Ext.P5 W.P.(C). No7425 of 2023 :3:

would reveal that the 2nd respondent solely relied on the report of

the Agricultural Officer for rejecting the application of the

petitioner and there is no independent consideration by the 2 nd

respondent regarding the nature and lie of the property. The

petitioner relies on the judgments in Muraleedharan Nair R. v.

Revenue Divisional Officer [2023 (4) KHC 524] and Aparna

Sasi Menon v. Revenue Divisional Officer [2023 (5) KLT 432]

in support of his contention.

3. Heard the learned Government Pleader also.

4. In Muraleedharan Nair's case cited (Supra), this Court

has held that when the applicant seeks removal of his land from

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 and the Revenue

Divisional Officer being the competent authority has to

independently assess the status of the land. A perusal of Ext.P5

would reveal that no such independent assessment has been done

by the 2nd respondent. In Aparna Sasi's case cited (Supra), the

Court held as follows:

"21. In the afore context, when the competent authority considers a Form-5 application submitted under Rule 4(4D) of the Kerala Conservation of Paddy Land and W.P.(C). No7425 of 2023 :4:

Wetland Act, 2008, the predominant factor for consideration should be whether the land which is sought to be excluded from Data Bank is one where paddy cultivation is possible and feasible.

22. In very small plots of land which are surrounded by commercial or residential buildings, though such land is described as paddy land in the revenue records and though it may be technically possible to cultivate the land with paddy, still such cultivation will not be ordinarily possible and financially feasible.

23. In the case of lands having any extent, the factor whether there are proper irrigation facilities making the land suitable for paddy cultivation would be important. Even if the land is of a comparatively larger extent, if there are no irrigation and other requisite facilities, it cannot be said that the land is suitable for paddy cultivation, merely because it was once cultivated with paddy and it is described as paddy land in revenue records."

Ext. P5 order has been issued solely based on the report of the

Agricultural Officer and there is no independent consideration and

therefore, the same goes against the mandates of Muraleedharan

Nair's and Aparna Sasi's case cited(Supra).

Accordingly, Ext.P5 is set aside and the writ petition is

disposed of with a consequential direction to the 2 nd respondent to

reconsider the Form-5 application submitted by the petitioner in

accordance with law, taking into consideration the law laid down W.P.(C). No7425 of 2023 :5:

by this Court in Muraleedharan Nair's case and Aparna Sasi's

case cited (Supra) and a decision shall be taken by the 2 nd

respondent as directed above, as expeditiously as possible, at any

rate, within an outer limit of 3 months from the date of receipt of a

copy of this judgment. The petitioner is free to submit an argument

note producing all the judgments in support of his contentions

before the 2nd respondent, which shall be duly considered by the 2 nd

respondent while reconsidering the matter as directed above.

Sd/-

                                                   VIJU ABRAHAM
                                                       JUDGE
sm/
 W.P.(C). No7425 of 2023            :6:




                          APPENDIX OF WP(C) 7425/2023

PETITIONER EXHIBITS
Exhibit P1          TRUE COPY OF THE LAND TAX RECEIPT DATED

14.12.2021 ISSUED BY THE 3RD RESPONDENT Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF DRAFT DATA BANK OF AYYANTHOLE VILLAGE Exhibit P3 TRUE COPY OF THE APPLICATION DATED 15.12.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P4 TRUE COPY OF THE JUDGMENT OF WP(C)NO.7959/2022 DATED 25.03.2022 OF THIS HON'BLE COURT Exhibit P5 TRUE COPY OF THE ORDER N0..D7-1736/2022 DATED 16.08.2022 ISSUED BY THE 2ND RESPONDENT Exhibit P6 TRUE COPY OF THE APPEAL DATED 16.01.2023 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT Exhibit P7 TRUE COPY OF THE POSTAL RECEIPT DATED 16.01.2023 Exhibit P8 TRUE COPY OF THE REPORT NO. A-