Joy vs The Revenue Divisional Officer
2023 Latest Caselaw 10962 Ker

               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. 8081 OF 2023


PETITIONERS:

          JOY,
          AGED 61 YEARS
          S/O. LATE PAILY, PARAYIL HOUSE, POICKATTUSSERY,
          NEDUMBASSERY VILLAGE, CHENGAMANAD P.O., ERNAKULAM, PIN
          - 683578
          BY ADVS.
          ANOOP ELIAS
          T.A MOHAMED SAGEER


RESPONDENTS:

    1     THE REVENUE DIVISIONAL OFFICER,
          FORT COCHI, X69V+2HV, FIRST FLOOR, KB JACOB ROAD,
          KOCHI, PIN - 682001
    2     THE LOCAL LEVEL MONITORING COMMITTEE,
          (UNDER THE PROVISIONS OF THE KERALA CONSERVATION OF
          PADDY AND WETLAND ACT 2008), REPRESENTED BY ITS
          CONVENOR, NEDUMBASSERY KRISHIBHAVAN, ERNAKULAM, PIN -
          683585
    3     THE AGRICULTURAL OFFICER,
          NEDUMBASSERY KRISHIBHAVAN, ERNAKULAM, PIN - 683585
    4     THE VILLAGE OFFICER,
          NEDUMBASSERY VILLAGE, ERNAKULAM, PIN - 683585
          BY G.P., 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:
 WP(C) No. 8081 of 2023           :2:




                        VIJU ABRAHAM , J.
             ===========================
                     WP(C) No. 8081 of 2023
             ============================
             Dated this the 26th day of October, 2023

                           JUDGMENT

Petitioner has approached this Court aggrieved by Ext P5 order,

wherein the form-5 application submitted by the petitioner has been

rejected.

2. Petitioner purchased 9.80 ares of land in Re-survey No.

476/1 in Block No.9 of Nedumbassery Village as per Ext P1 sale deed.

The said property is close to the Cochin International Airport in the

midst of a rapidly growing commercial area and was a dry land even

when the petitioner acquired the property. It is only by a mistake that

the property has been included as a paddy land in the basic tax

register. Petitioner relying on Ext P2 entry in the data bank would

submit that the property has been treated as a converted land prior

to the notification of the Act, 2008. Thereupon the petitioner

submitted Ext P4 application in form 5 which is rejected by the order

impugned herein. Petitioner would contend that Ext P5 order has

been issued solely relying on the report of the agricultural officer and

that there is no independent consideration on the same by the

Revenue Divisional Officer.

3. Petitioner relying on the judgment 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] contend 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. It is contended that this Court

has also observed in the judgments cited supra 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 on the land and also whether it will affect the

nearby paddy fields. Petitioner also relies on the judgment in

Aparna Sasi Menon v. Revenue Divisional Officer,

Irinjalakkuda [2023 (6) KHC 82], wherein it is 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 the data bank is one in which paddy

cultivation is possible and feasible including the existence of

irrigation fields.

4. A perusal of Ext P5 order does not reveal that any of these

parameters have been considered while issuing the same. Therefore,

Ext P5 is set aside with a consequential direction to the 1 st

respondent to reconsider the Form 5 application submitted by the

petitioner and pass orders thereon in accordance with law, at any

rate within an outer limit of three months from the date of receipt of

a copy of this judgment. Petitioner will be free to submit his notes of

arguments with the supporting judgments to substantiate his

contentions and the 1st respondent while reconsidering the matter as

directed above, shall duly advert to the same.

With the above said direction, the writ petition is disposed of.

Sd/-

VIJU ABRAHAM JUDGE

sbk/-

APPENDIX OF WP(C) 8081/2023

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SALE DEED NO.4684/2004 OF SRO, CHENGAMANAD IN THE NAME OF THE PETITIONER Exhibit P2 TRUE COPY OF THE RELEVANT EXTRACT OF THE DATA BANK OF LANDS IN THE LIMITS OF NEDUMBASSERY VILLAGE Exhibit P3 TRUE COPY OF THE BASIC LAND TAX RECEIPT OF THE LAND OF THE PETITIONER DATED 13/02/2023, ISSUED BY THE NEDUMBASSERY VILLAGE OFFICE Exhibit P4 TRUE COPY OF THE APPLICATION DATED 06/03/2021 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

Exhibit P5 TRUE COPY OF THE PROCEEDINGS DATED 28/01/2023 OF THE 1ST RESPONDENT Exhibit P6 TRUE COPY OF THE LOCATION SKETCH DATED 01/03/2023 OF THE PROPERTY OF THE PETITIONER ISSUED BY THE NEDUMBASSERY VILLAGE OFFICE