GRACY THOMAS v. VADAKKEDOM

SMT.DEVISREE, GP R4&5 SRI.SANTHARAM.P. SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 2956 OF 2024 : 3 : JUDGMENT The petitioner has filed this writ petition challenging Ext.P3 contending, inter alia, that the same, to the extent impugned, is vitiated by non application of mind and is against the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act of 2008' for short) and the binding precedents of this Court.

2. The petitioner is the owner in possession of an extent of 8.49 Ares and 31.97 Ares of properties in Sy.Nos.420 and 223 respectively of Mananthavady Village of Mananthavady Taluk by virtue of Ext.P1 sale deed.

3. According to the petitioner, the property comprised in Sy.No.420 is shown as serial No.171 WP(C) NO. 2956 OF 2024 : 4 : in the notified Data Bank issued by the 3rd respondent under the Act of 2008, as evident from Ext.P2. According to the petitioner, the aforesaid land was already reclaimed by her before the coming into force of the Act of 2008. The petitioner has submitted Form 5 application dated

21.10.2021 before the 1st respondent for removing the land having an extent of 8.50 Ares in Sy.No.420/3 and 31.96 Ares in Sy.No.223 of Mananthavady Village from the notified Data Bank.

4. The 1st respondent, as per Ext.P3, partially allowed the application removing the property having an extent of 31.96 Ares in Sy.No.223 from the Data Bank. However, the 1st respondent refused to remove 8 Ares and 50 Square metres of land in Sy.No.420/3 from the Data Bank stating that as per WP(C) NO. 2956 OF 2024 : 5 : the report of the LLMC, the said property was not reclaimed prior to the coming into force of the Act of 2008 and that, it is a 'marshy land' and there are 'neerchals' in the property.

5. The petitioner submits that the aforesaid property was reclaimed much prior to the coming into force of the Act of 2008 and the reasons stated in Ext.P5 cannot be sustained. The petitioner has impugned Ext.P3 to the extent it refuses to remove the aforesaid property from the Data Bank. According to the petitioner, Ext.P3 to the extent impugned is vitiated by non application of mind and is passed against the binding precedents of this Court.

6. Heard the learned counsel for the petitioner, learned Government Pleader and the WP(C) NO. 2956 OF 2024 : 6 : learned Standing Counsel for respondents 4 and 5.

7. The relevant consideration for inclusion of the property as a paddy land or wetland is as to the nature of the property as on the date of coming into force of the Act of 2008. On a perusal of Ext.P3, it is evident that, without any independent assessment of the nature of the property as on the date of coming into force of the Act of 2008, the 1st respondent/RDO has relied solely upon the report of the LLMC to refuse to remove the property from the Data Bank. This Court has held 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 WP(C) NO. 2956 OF 2024 : 7 : Act and also whether the land is suitable for paddy cultivation or not.

8. 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 WP(C) NO. 2956 OF 2024 : 8 : unsustainable. Further, this Court in Aparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83] 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.

9. Reliance upon the report of the Agricultural Officer and LLMC alone will not be sufficient while taking a decision on an application under Form-5. Ext.P3 order to the extent impugned has been passed without application of mind and without adherence to the categorical declarations by this Court in the decisions cited above. Accordingly, I set aside Ext.P3 order to the extent it held that the property having an extent of 8.50 Ares in Sy.No.420/3 of Mananthavady Village cannot be WP(C) NO. 2956 OF 2024 : 9 : removed from the Data Bank. There will be a direction to the 1st respondent, the Revenue Divisional Officer to reconsider the application in Form-5 dated 21.10.2021, in accordance with law and take a decision in the matter after obtaining the KSRSEC report at the expense of the petitioner, within a period of two months from the date of receipt of the report from the KSRSEC. The petitioner shall apply before the Agricultural Officer concerned for KSRSEC report within a period of two weeks from the date of receipt of a copy of this judgment. The writ petition is disposed as above. MURALI PURUSHOTHAMAN JUDGE SB Sd/- WP(C) NO. 2956 OF 2024 : 10 : APPENDIX PETITIONER EXHIBITS Exhibit P1 THE COPY OF THE SALE DEED NO. 552/1993 DATED 25.2.1993 OF THE SRO, MANANTHAVADY Exhibit P1(a) THE COPY OF THE TAX RECEIPT DATED 01.07.2023 SHOWING THE REMITTANCE OF TAX IN THE NAME OF THE PETITIONER FOR 31.96 ARES OF LAND IN SURVEY NO. 233 AND 8.50 ARES IN SURVEY NO. 420/3 OF MANANTHAVADY VILLAGE Exhibit P2 THE COPY OF THE RELEVANT EXTRACT OF THE DATA BANK OBTAINED UNDER THE RTI ACT ISSUED BY THE 3RD RESPONDENT VILLAGE OFFICER Exhibit P3 THE COPY OF THE ORDER NO. RDOMDY/2190/2021-J3 DATED 15.07.2022 OF THE 1ST RESPONDENT- RDO Exhibit P4 THE COPY OF THE REPRESENTATION DATED 18.4.20203 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT RDO Exhibit P5 THE COPY OF THE ORDER DATED 29/3/2022 OF THE 1ST RESPONDENT-RDO REMOVING THE PROPERTY OF 3.85 ARES IN SY. NO. 420/2 OF MANNATHAVADY BELONGING TO ONE A.J. JOSEPH