Kerala High Court
Jabbarkutty M.S vs State Of Kerala 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. 39386 OF 2022
PETITIONER:
JABBARKUTTY M.S
THEKKEMAVUMKAMANNIL HOUSE
NARANGANAM NORTH P.O, KATTOORPETTA
PATHANAMTHITTA DISTRICT - 689642
BY ADV UNNI. K.K. (EZHUMATTOOR)
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT
REVENUE DEPARTMENT, GOVT. SECRETARIATE
THIRUVANANTHAPURAM - 695001
2 DISTRICT COLLECTOR
CIVIL STATION, PATHANAMTHITTA - 689545
3 REVENUE DIVISIONAL OFFICER
REVENUE DIVISIONAL OFFICE THIRUVALLA,
PATHANAMTHITTA DISTRICT - 689101
4 LOCAL LEVEL MONITORING COMMITTEE
CHERUKOLE GRAMAPANCHAYATH REPRESENTED BY ITS CONVENER
AGRICULTURAL OFFICER KRISHI BHAVAN, KEEKOZHUR,
PATHANAMTHITTA - 689672
OTHER PRESENT:
GP - SYAMANTHAK B.S.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.10.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.39386 of 2022 2
VIJU ABRAHAM, J.
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W.P (C) No.39386 of 2022
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Dated this the 26th day of October, 2023
JUDGMENT
Petitioner has approached this Court challenging Ext.P3 order
whereby Ext.P1 Form 5 application submitted by him was rejected.
2. Petitioner is the owner of 3.75 Ares of land comprised in re-survey
no.264/8 of Cherukole Village in Ranni Taluk, which has been noted as
paddy land in the revenue records. Petitioner submits that the property is
converted and presently rubber trees are planted. In spite of the same, in
the final data bank the property has been wrongly included as converted.
Since the property has been included in the data bank, petitioner
submitted Ext.P1 Form 5 application to remove the wrong entry in the
data bank. Even though the petitioner requested the 4 th respondent to
obtain a report from the Kerala State Remote Sensing and Environment
Centre to obtain the satellite image of the property as on 2008, the same
has not been obtained by the 4th respondent. Petitioner would contend
that none of the parameters for consideration of a Form 5 application has
been taken into consideration while issuing Ext.P3 order.
3. A perusal of Ext.P3 order would reveal that the said order has been
issued solely based on the report of the Agricultural Officer and there is
no independent consideration by the 3rd respondent while issuing the
same. Petitioner relies on the judgment in Arthasasthra Ventrues (India)
LLP v. State of Kerala, 2022 (7) KHC 591 and in Muraleedharan Nair
R. v. Revenue Divisional Officer, 2023 (4) KHC 524. In the abovecited
judgments this Court has observed that the Revenue Divisional Officer
cannot merely follow the report of the Agricultural Officer or the LLMC
without any independent assessment of the status of the land. This Court
in the judgments cited supra has also observed that while considering an
application filed under Form 5, the authority must consider whether the
removal of 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, this Court has 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 where paddy cultivation is possible and feasible
including the existence of irrigation facilities.
A perusal of Ext.P3 order would reveal that none of these
parameters has been considered while rejecting Ext.P1 Form 5
application, instead the application has been rejected solely based on the
report of the Agricultural Officer. The 3rd respondent ought to have called
for a KSRSEC report for ascertaining the actual factual situation in
respect of the said property as on the date of coming into force of the
Conservation of Paddy Land and Wetland Act, 2008. Since none of these
steps have been done in the present case, I find that there is total non-
application of mind by the 3rd respondent while issuing Ext.P3 order.
Therefore Ext.P3 order is quashed with a direction to the 3 rd respondent
to reconsider Ext.P1 application in Form 5, if required after considering
the KSRSEC report and other relevant factors mentioned in Rule 4(4f) of
the Rules, 2008. The matter shall be reconsidered and fresh order shall
be passed as expeditiously as possible, at any rate within a period of
three months from the date of receipt of a copy of the judgment. It is
made clear that if KSRSEC report is required for deciding the same,
petitioner shall make necessary payment for the same on request made
by the Agricultural Officer. Petitioner will be free to submit argument notes
highlighting his contentions and producing the judgments in support of his
claim and the 3rd respondent while reconsidering the application as
directed above shall advert to the same in accordance with law.
With the abovesaid direction, the above writ petition is disposed of.
Sd/-
VIJU ABRAHAM
JUDGE
cks
APPENDIX OF WP(C) 39386/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE APPLICATION IN FORM.5
DATED 13.05.2022
Exhibit P2 TRUE COPY OF THE DATA BANK ISSUED BY
THE 4TH RESPONDENT
Exhibit P3 TRUE COPY OF THE ORDER DATED 19.11.2022
OF THE 3RD RESPONDENT
Exhibit P4 TRUE COPIES OF THE PHOTOGRAPHS SHOWING
THE REAL NATURE OF THE PROPERTY
