P.K.CHANDRAN v. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA

BY SMT.K.AMMINIKUTTY, SR.GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.42543 of 2023 2 JUDGMENT Petitioner has filed this writ petition challenging Ext.P5 order of the 1st respondent, the Revenue Divisional Officer [RDO], whereby the application under Form 5 submitted by the petitioner has been rejected.

2. Petitioner is the owner in possession of an extent of 7.50 Ares of land comprised in Re-survey No.434/10/1, an extent of 3.64 Ares of land comprised in Re-survey No.434/10-2-2, an extent of

2.43 Ares of land comprised in Re-survey No.434/11-2, an extent of 36.46 Ares of land comprised in Re-survey No.434/11/3 and an extent of 4.50 Ares of land comprised in Re-survey No.434/12-2 in Resurvey Block No.23 of Vazhakkulam Village, Kunnathunad Taluk. The petitioner states W.P.(C) No.42543 of 2023 3 that the above properties are lying contigously as a single plot abutting public road. It is further stated that the properties were reclaimed long before the commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008 [for brevity, ‘the Act, 2008’] and there are buildings situated in the said properties. There are also several trees standing in the properties and the properties are not suitable for paddy cultivation. However, the said properties have been included in the Data Bank. Accordingly, the petitioner filed Ext.P3 application in Form 5 under Rule 4(d) of the Kerala Conservation of Paddy land and Wetland Rules, 2008 (hereinafter referred to as ‘the Rules’) before the 1st respondent for removal of the properties from the Data Bank. The petitioner states that the Local Level Monitoring Committee W.P.(C) No.42543 of 2023 4 [LLMC], by Ext.P4, recommended to remove the properties of the petitioner from the Data Bank. However, the 1st respondent, by Ext.P5 rejected the application stating that the properties of the petitioner is situated 2.5 meter below the road and there are waterlogs in the properties. It is also stated that there is a thodu in the said properties. The petitioner impguned Ext.P5 on the ground that the same is a non-speaking order, passed without any application of mind.

3. Heard the learned counsel for the petitioner and the learned Senior Government Pleader.

4. The fact that the property is lying 2.5 meter below the road and the presence of waterlogs in the properties alone cannot be a reason for rejection of the application of the petitioner for W.P.(C) No.42543 of 2023 5 removal of the properties from the Data Bank. This Court has, in Aparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83] has held that the existence of water chals in the property alone cannot be a prime consideration in deciding whether the land is to be retained in the Data Bank. In paragraphs 26 and 27, this Court held as follows: “26. From the minutes of the LLMC, it is seen that the Committee has noted that there are water chals where water was found. Neither the LLMC nor the Agricultural Officer has stated that these water chals are connected to the nearby paddy fields or that the water chals in the petitioner's property is indispensable for irrigation of paddy fields in the nearby area.

27. In short, a decision has been taken W.P.(C) No.42543 of 2023 6 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.”

5. Further, the relevant consideration for inclusion of property as a 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 the same has been passed without taking into account the relevant factors. W.P.(C) No.42543 of 2023 7

6. This Court had held in the decision in Arthasasthra Ventures (India) LLP v. State of Kerala [2022 (7) KHC 591] that, the RDO 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, 2008 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 the Data Bank. The RDO, being the competent authority, has to independently assess the status of the land and W.P.(C) No.42543 of 2023 8 come to a conclusion that removal of the land from the 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. Accordingly, I set aside Ext.P5, with a direction to the 1st respondent/RDO to reconsider Ext.P3 application in Form No.5 and take a decision in the matter after obtaining KSRSEC report at the expense of the petitioner, within a period of two months from the date of receipt of a copy of the report of the KSRSEC. The petitioner shall apply before the Agricultural Officer concerned for KSRSEC report within a period of two weeks from the date of W.P.(C) No.42543 of 2023 9 receipt of a copy of this judgment. The writ petition is disposed of with the above direction. MURALI PURUSHOTHAMAN JUDGE Sd/- sp/22/01/2024 W.P.(C) No.42543 of 2023 10 APPENDIX PETITIONER' S EXHIBITS :- EXHIBIT-P1 EXHIBIT-P2 EXHIBIT-P3 EXHIBIT-P4 EXHIBIT-P5 THE TRUE PHOTO COPY OF THE LAND TAX RECEIPT DATED 08.05.2023 ISSUED BY THE VILLAGE OFFICER, VAZHAKKULAM VILLAGE TO THE PETITIONER THE TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK PREPARED BY THE 2ND RESPONDENT THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER IN FORM NO.5 DATED 15.02.2023 BEFORE THE 1ST RESPONDENT FOR CORRECTION OF DATA BANK THE TRUE COPY OF THE MINUTES OF THE MEETING DATED 22.03.2023 HELD BY THE 2ND RESPONDENT THE TRUE COPY OF THE ORDER NO.7644/2023 DATED 11.07.2023 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER