Bineesh Latheef vs The State Of Kerala
2023 Latest Caselaw 11170 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
                     THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
         FRIDAY, THE 27TH DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945
                              WP(C) NO. 35408 OF 2023
PETITIONER:

              BINEESH LATHEEF, AGED 48 YEARS
              S/O. PALAKKAL KOYALI, BOYS AVENUE,
              KOORKANCHERY P.O KANIMANGALAM VILLAGE,
              AYYANTHOL, THRISSUR, PIN - 680007

              BY ADVS.
              JIBI JACOB
              ANJALI MENON
              DHILNA TONSON



RESPONDENTS:

     1        THE STATE OF KERALA
              REPRESENTED BY THE SECRETARY TO GOVERNMENT,
              REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
              THIRUVANANTHAPURAM, PIN - 695001

     2        THE REVENUE DIVISIONAL OFFICER
              OFFICE OF THE REVENUE DIVISIONAL OFFICER,
              THRISSUR, AYYANTHOLE, THRISSUR, PIN - 680003

     3        THE VILLAGE OFFICER, VILLAGE OFFICE,
              KANIMANGALAM VILLAGE, PANAMUKK,
              THRISSUR DISTRICT, PIN - 680007

     4        THE AGRICULTURAL OFFICER
              KRISHI BHAVAN, KOORKKENCHERY,
              GHANDI NAGAR THRISSUR DISTRICT, PIN - 680007

OTHER PRESENT:

              GP - SYAMANTHAK B.S.



     THIS     WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
27.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) No.35408 of 2023                                  2




                                VIJU ABRAHAM, J.
                .................................................................
                           W.P (C) No.35408 of 2023
                .................................................................
                 Dated this the 27th day of October, 2023


                                      JUDGMENT

Petitioner has approached this Court aggrieved by the issuance of

Ext.P5 whereby Form 5 application submitted by the petitioner has been

rejected.

2. Petitioner along with his brother is in joint ownership and

possession of an extent of 9.67 Ares of property comprised in survey

nos.384/2 & 384/1 of Kanimangalam Village, Thrissur Taluk. Petitioner

submits that the above property has been categorized as 'nilam' in the

basic tax register and wrongly included in the data bank though the land

is unfit for paddy cultivation. Thereupon the petitioner has preferred an

application in Form 5 to exclude the property from data bank which has

been rejected by the 2nd respondent as per Ext.P5. Petitioner submits

that a perusal of Ext.P5 would reveal that the 2nd respondent solely

relied on the report of the LLMC and there is no independent

consideration by the 2nd respondent. Petitioner would point out that

another reason stated for rejecting the application is the presence of a

'chal' in the property. Petitioner relies on the judgment in Aparna Sasi

Menon v. Revenue Divisional Officer, Irinjalakuda, 2023 (6) KHC 83

wherein in paragraph 27 held as follows:

"27. In short, a decision has been taken by the RDO to reject the Form- 5 application of the petitioner without a finding that it is feasible and viable to cultivate the land of the petitioner with paddy. The RDO has passed the order without any cogent evidence to conclude that the water chals found in the petitioner's land are indispensable for paddy cultivation in the nearby areas. For all the afore reasons, I find that Ext.P7 order of the Revenue Divisional Officer is illegal and unsustainable."

3. This Court in Muraleedharan Nair R. v. Revenue Divisional

Officer, 2023 (4) KHC 524 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. Further, in the said judgment it is further observed that the

rejection for the reason that there is a 'neerchal' in the land by itself is

not a ground for rejecting a Form 5 application, in the absence of any

further finding not only that the removal of land from the data bank is

likely to result in filling up/blocking of 'neerchal', but also that filling

up/blocking of 'neerchal' is likely to affect the paddy cultivation or

subsistence of any wet land. None of these aspects has been

considered by the 3rd respondent while issuing Ext.P5 order. This Court

in Joy K.K. v. Revenue Divisional Officer/Sub Collector, Ernakulam,

2021 (1) KHC 540 as well as in Arthasasthra Ventures (India) LLP v.

State of Kerala, 2022 (7) KHC 591 has laid down the parameters to be

considered while disposing of the Form 5 application. None of these

parameters has been taken into consideration while issuing Ext.P3

order.

Therefore Ext.P5 order is set aside with a consequential direction

to the 2nd respondent to reconsider the Form 5 application submitted by

the petitioner in the light of the facts stated in this judgment. 2 nd

respondent shall take a final decision in the matter within an outer limit of

three months from the date of receipt of a copy of the judgment.

Petitioner is free to submit his notes of argument pointing out the

judgments in support of his contentions and the 2 nd respondent while

reconsidering the matter as directed above shall also advert to the

contentions taken therein.

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

Sd/-

VIJU ABRAHAM JUDGE

cks

APPENDIX OF WP(C) 35408/2023

PETITIONER EXHIBITS

Exhibit-P1 A TRUE COPY OF THE SALE DEED NO.

2294/2008 DATED 30.03.2008

Exhibit-P2 A TRUE COPY OF THE SETTLEMENT DEED NO.

5002/08 DATED 13.8.2008

Exhibit-P3 A TRUE COPY OF THE TAX RECEIPT DATED 25.04.2023

Exhibit-P4 A TRUE COPY OF THE EXTRACT OF THE DATA BANK DATED 22.01.2021

Exhibit-P5 A TRUE COPY OF THE ORDER NO.RDOTSR/1382/2022-D8 ISSUED BY THE 2ND RESPONDENT REJECTING THE APPLICATION OF THE PETITIONER DATED 03.06.2022

Exhibit-P6 TRUE COPIES OF THE PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER

Exhibit-P7 A TRUE COPY OF THE JUDGMENT IN WP (C) NO. 29198 OF 2023 DATED 05-09-2023