C.K Shaji vs The Revenue Divisional Officer
2023 Latest Caselaw 10369 Ker

WP(C) NO. 6230 OF 2023
                                   1

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
    SATURDAY, THE 30TH DAY OF SEPTEMBER 2023 / 8TH ASWINA, 1945
                         WP(C) NO. 6230 OF 2023
PETITIONER/S:

    1     C.K SHAJI
          AGED 56 YEARS
          S/O KURUVILA, CHUNDAYIL HOUSE, KADATHY KARA,
          MUVATTUPUZHA, ERNAKULAM, PIN - 686673
    2     ROY K VARGHESE
          AGED 54 YEARS
          S/O VARGHESE, KARIKKOTTIL HOUSE, MEKKADAMBU P.O.,
          KADATHY, MUVATTUPUZHA, ERNAKULAM, PIN - 682316
          BY ADVS.
          P.K.SREEVALSAKRISHNAN
          K.R.PRATHISH


RESPONDENT/S:

    1     THE REVENUE DIVISIONAL OFFICER
          REVENUE DIVISIONAL OFFICE, MUVATTUPUZHA ERNAKULAM
          DISTRICT, PIN - 686673
    2     THE LOCAL LEVEL MONITORING COMMITTEE
          MUVATTUPUZHA MUNICIPALITY, REP. BY ITS CHAIRMAN,
          AGRICULTURAL OFFICER, MUVATTUPUZHA KRISHI BHAVAN,
          MUVATTUPUZHA, ERNAKULAM, PIN - 686673
OTHER PRESENT:

          GP-SHEEBA.G


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 6230 OF 2023
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                     BECHU KURIAN THOMAS, J.
               ========================
                       W.P.(C)No.6230 of 2023
               ------------------------------------------------
                       Dated this the 30th day of September 2023


                                    JUDGMENT

Petitioners are the owners of 17.91 Ares of property in

Sy.No.158/1A-1, 158/1A-1-2-2 and 158/1A-1-8-2 in Muvattupuzha

Village, Muvattupuzha Taluk, Ernakulam District. Challenge is against

Ext.P5 order of the Revenue Divisional Officer, Muvattupuzha, whereby

the petitioners' request to remove their land from the data bank stands

rejected.

2. Petitioners allege that their land was converted prior to the

enactment of the Kerala Conservation of Paddy Land and Wetland Act,

2008 (for short, the Act) and that it is a 'dry land'. However, when the

data bank was prepared under Section 5(4)(i) of the Act, their land was

wrongly included in it. Since, petitioners require the land for other

purposes, they submitted Form-5 application, invoking Rule 4(4d) of the

Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for short,

the Rules).

3. By the impugned order petitioners' application has been

rejected by the Revenue Divisional Officer, solely based on the report of

the Agricultural Officer without even a site inspection or any application

of mind and is hence alleged to be not a speaking order. WP(C) NO. 6230 OF 2023

4. I have heard Sri. Sreevalsakrishanan, learned counsel for the

petitioners and Smt.Sheeba.G, the learned Government Pleader and

have also perused Ext.P9 order passed by the Revenue Divisional

Officer.

5. Petitioners' application in Form 5 of the Rules was rejected

relying on the Agricultural Officer's report. The said report stated that

petitioner's land need not be excluded from the data bank. Petitioner

relies upon the KSREC report produced as Ext.P4 and asserts that the

surrounding areas are well-developed with multiple buildings and also

that the impugned order has not referred to the suitability for cultivation

as a paddy land.

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

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 [(2023 KHC Online 592] it has been

observed that when the competent authority considers a Form-5

application, the predominant consideration should be whether the land WP(C) NO. 6230 OF 2023

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. Evidently, 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 consideration be made.

8. In view of the above, Ext.P5 order is quashed and direct the 1st

respondent to reconsider Form 5 application filed by the petitioners and

issue fresh orders, after considering the report of KSREC and other

relevant factors stipulated 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.

BECHU KURIAN THOMAS JUDGE jm/ WP(C) NO. 6230 OF 2023

APPENDIX OF WP(C) 6230/2023

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE TAX RECEIPT ISSUED BY THE MUVATTUPUZHA VILLAGE IN THE NAME OF THE PETITIONERS DATED 04.04.2022 Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF THE DRAFT DATABANK SHOWING THE PETITIONER'S PROPERTY Exhibit P3 TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONERS BEFORE THE RDO DATED 11.04.2022 Exhibit P4 TRUE COPY OF KSREC REPORT DATED 09.06.2022 Exhibit P5 TRUE COPY OF THE ORDER OF THE RDO, MUVATTUPUZHA DATED 01.11.2022