Jeby K John Represented By His Power Of ... vs The District Collector
2024 Latest Caselaw 5414 Ker

Kerala High Court

Jeby K John Represented By His Power Of ... vs The District Collector on 16 February, 2024

Author: Murali Purushothaman

Bench: Murali Purushothaman

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
          THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
     FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
                      WP(C) NO. 3922 OF 2024
PETITIONER:
           JEBY K JOHN REPRESENTED BY HIS POWER OF ATTORNEY SRI.
           BIJU
           AGED 54 YEARS
           S/O. LATE JOHN, KOLKUNNEL HOUSE, PIRAMADOM, PAMPAKUDA,
           ERNAKULAM DISTRICT, REPRESENTED BY HIS POWER OF
           ATTORNEY SRI. BIJU S/O LATE PHILIPOSE, AGED 56 YEARS,
           KAIKUTHUCHALPUTHENPURAYIL HOUSE, MANNATHOOR POST,
           THIRUMARADY, PAMPAKUDA, ERNAKULAM DISTRICT., PIN -
           686667

          BY ADVS.
          GEEVARGHESE MATHEW
          VINU CHAND
          C.R.VINOD KUMAR
          SHEENA K.S.
          RAGIN ROY


RESPONDENTS:
     1     THE DISTRICT COLLECTOR
           COLLECTORATE, KAKKANAD, ERNAKULAM DISTRICT., PIN -
           682030
     2     THE REVENUE DIVISIONAL OFFICER
           REVENUE DIVISIONAL OFFICE, MUVATTUPUZHA, ERNAKULAM.,
           PIN - 686673
     3     THE VILLAGE OFFICER
           PIRAVOM VILLAGE, PALLIKAVALA, PIRAVOM, ERNAKULAM., PIN
           - 686664
     4     THE AGRICULTURAL OFFICER
           KRISHIBHAVAN PIRAVOM, MULAKKULAM (N) POST, ERNAKULAM.,
           PIN - 686664
     5     THE DIRECTOR
           KERALA STATE REMORTE SENSING & ENVIRONMENT CENTRE
           (KSREC), C BLOCK, VIKAS BHAVAN, THIRUVANATHAPURAM., PIN
           - 695033
OTHER PRESENT:
           SMT.R.DEVI SHRI, GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P (C) No.3922 of 2024

                                   2


                           JUDGMENT

The petitioner has approached this Court aggrieved by

Ext.P5 whereby Form 5 application submitted by him has

been rejected by the Revenue Divisional Officer.

2. The petitioner is the absolute owner in possession

of an extent of 12.14 Ares of land comprised in Survey

No.717/14-2-4 and in Survey No.717-14-3-4 in Block No.1 of

Priavom Village, Muvattupuzha Taluk in Ernakulam District.

3. According to the petitioner, the aforesaid property

will not come within the ambit of paddy land or wet land as

defined under Kerala Conservation of Paddy Land and

Wetland Act, 2008 (hereinafter referred to as 'Act, 2008').

However, it is stated that the property is wrongly included

in the Data Bank. The petitioner filed Ext.P3 application in

Form 5 of Rule 4(d) of the Kerala Conservation of Paddy

Land and Wetland Rules, 2008 before the Revenue

Divisional Officer to remove the said land from the Data

Bank. The same has been rejected by the Revenue

Divisional Officer vide Ext.P5 stating that, as per the reports

of the Agricultural Officer and the Kerala State Remote

Sensing and Environment Centre (for short 'the KSRSEC), it

seen that the property is not converted before 2008 and

that it is convinced that the subject land will come within

the ambit of paddy land / wetland.

4. The petitioner has filed this writ petition

challenging Ext.P5 contending, inter alia, that the same is

vitiated by non application of mind and is against the

provisions of the Act, 2008 and the binding precedents of

this Court. It is also contended that the Revenue Divisional

Officer has misinterpreted and misread the report of the

KSRSEC in ascertaining the status of the land as on

12.08.2008, the date of coming into force of the Act, 2008.

5. The relevant consideration for inclusion of a

property as paddy land or wet land is as to the nature of the

property as on the date of coming into force of the Act

2008. On a perusal of Ext.P5, it is evident that, without any

independent assessment of the nature of property as on the

date of coming into force of the Act 2008, the Revenue

Divisional Officer has refused to remove the property from

the Data Bank.

6. This Court has held in the decision in

Arthasasthra Ventures (India) LLP v. State of Kerala

[2022 (7) KHC 591] that, the Revenue Divisional Officer

must, while considering an application for removal of a

property from the Data Bank consider the question whether

the land was a paddy land on the date of coming into force

of the Act and also whether the land is suitable for paddy

cultivation or not. This Court in Muraleedharan Nair v.

Revenue Divisional Officer [2023 (4) KLT 270] has held

that when the petitioner seeks removal of his land from the

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. The Revenue Divisional Officer being the

competent authority, has to independently assess the

status of the land and come to a conclusion that removal of

the land from Data Bank will adversely affect paddy

cultivation in the land in question or in the nearby paddy

lands or that it will adversely affect sustenance of wetlands

in the area and in the absence of such findings, the

impugned order is unsustainable. In Aparna Sasi Menon

v. Revenue Divisional Officer [2023 (6) KHC 83], this

Court has held that the predominant factor for

determination while considering the Form 5 application

should be whether the land which is sought to be excluded

from Data Bank is one where paddy cultivation is possible

and feasible.

7. In spite of the categorical declarations by this

Court in the decisions cited above, the petitioner's

application has been rejected without any independent

assessment of the nature of land as on the date of coming

into force of the Act, 2008. Accordingly, I find that Ext.P5

order cannot be sustained and I set aside the same, with a

direction to the 2nd respondent, the Revenue Divisional

Officer to reconsider Ext.P3 application in accordance with

law and on the basis of Ext.P4 KSRSEC report within a

period of two months from the date of receipt of a copy of

this judgment. The petitioner shall shall produce a copy of

the writ petition along with a copy of this judgment before

the Revenue Divisional Officer.

The writ petition is disposed of with the above

directions.

Sd/-

MURALI PURUSHOTHAMAN JUDGE bng

APPENDIX OF WP(C) 3922/2024

PETITIONER EXHIBITS

Exhibit P1 THE TRUE COPY OF THE TAX PAID RECEIPT OF THE ABOVE PROPERTY DATED 20.02.2023 ISSUED BY THE 3RD RESPONDENT

Exhibit P2 TRUE COPIES OF THE PHOTOGRAPHS SHOWING THE ACTUAL LIE AND NATURE AS WELL AS THE PRESENT APPEARANCE OF THE PROPERTIES

Exhibit P3 THE TRUE COPY OF THE APPLICATION DATED 06.03.2023 SUBMITTED BY THE PETITIONER THROUGH ONLINE BEFORE THE 2ND RESPONDENT

Exhibit P4 THE TRUE COPY OF THE REPORT BEARING NO.

A-172/2015/KSREC/004728/23 ISSUED BY THE 5TH RESPONDENT

Exhibit P5 TRUE COPY OF THE ORDER DATED 02.12.2023 BEARING NO.12326/2023 ISSUED BY THE 2ND RESPONDENT

Exhibit P6 THE TRUE COPY OF SALE DEED BEARING NO.1710/2012 OF SRO PIRAVOM DATED 26.07.2012

Exhibit P7 THE TRUE COPY OF SALE DEED BEARING NO.

454/2012 OF SRO PIRAVOM

Exhibit P8 THE TRUE CERTIFIED COPY OF SALE DEED BEARING NO.2889/1/2005 OF SRO PIRAVOM