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Sajeesh S., v. State of Kerala

Kerala HC8 Nov 2023WP(C)/11363/2023

Case brief

AI extract

What is this about?

Writ petition challenging rejection of Form-5 application to remove land from Data Bank. Court set aside order, directing Revenue Divisional Officer for independent assessment with strict timelines for KSRSEC report or final decision.

What did the court decide?

Impugned order set aside with direction to Revenue Divisional Officer to reconsider application independently within stipulated timelines for scientific report submission and final disposal.

Sajeesh S., Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

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WEDNESDAY, THE 8^TH DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945

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WP(C) NO. 11363 OF 2023

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PETITIONER:

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SAJEESH S., AGED 36 YEARS S/O. SIVARAMAN,KUNNIL HOUSE, IDIYAMPOTTA, AYILOOR P.O., CHITTUR, PALAKKAD, PIN - 678510 BY ADVS. K.ANAND N.RAJESH (PALAKKAD) AMEER SALIM

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RESPONDENTS:

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1 STATE OF KERALA, REP. BY THE SECRETARY, GOVERNMENT SECRETARIAT, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANATHAPURAM, PIN - 695001

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2 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICER, PARAKKUNNAM, VIDYUT NAGAR, PALAKKAD, PIN - 678001

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3 NENMARA GRAMA PANCHAYATH, REP. BY ITS SECRETARY, NENMARA - NELLIYAMPATHY RD, NENMARA, PIN - 678508

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4 THE LOCAL LEVEL MONITORING COMMITTEE FOR NENMARA GRAMA PANCHAYATH, REPRESENTED BY ITS CONVENER, THE AGRICULTURAL OFFICER, NENMARA - NELLIYAMPATHY RD, NENMARA, PIN - 678508 BY ADVS. N.SATHEESH KUMAR(NEMMARA)

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OTHER PRESENT:

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GP - RIYAL DEVASSY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 11363 OF 2023

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J U D G M E N T

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The petitioner has approached this Court aggrieved by Ext.P7 order whereby, Form-5 application submitted by the petitioner has been rejected.

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The petitioner is the owner in possession and enjoyment of the 2.02 Ares of land in Re.Sy.No.95/22 of Nenmara Village, Chittrur Taluk in Palakkad District. The petitioner submits that he has purchased the said land for construction of a house. It is also submitted by the petitioner that other than the land covered by Ext.P1, he has no other land in his possession and the said fact is certified by the Village Officer, Nenmara vide Ext.P4. As per the documents and registered deeds, the nature of the land is described as 'Nilam', but the land is a pakka filled up land with a lot of vegetation and there are houses in the adjacent property of the petitioner's land, as is evident from Ext.P5 photographs.

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The petitioner has a further contention that his name has been included in the 'Life Mission Project' of the 3^rd respondent, as is evident from Ext.P6 Certificate. When the petitioner applied for a building permit for construction of a residential house, he was informed that as per records, the

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WP(C) NO. 11363 OF 2023

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property in question is a 'Paddy land'. Thereupon, the petitioner preferred an application in Form-5 to remove the property from the data bank, which has been rejected by Ext.P7.

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The petitioner submits that on a perusal of Ext.P7 report, it clearly seen that the order has been issued solely relying on the decision of the Agricultural Officer and that there is no independent consideration by the 2^nd respondent – Revenue Divisional Officer. The petitioner submits that the 2^nd respondent while considering a Form-5 application, should independently consider the nature and lie of the property as on the date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008.

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This Court in Salim C.K. and Another v. State of

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Kerala and Others[2017 (1) KHC 394] has held that the Data Bank that was contemplated as per the provisions of the Act was to contain details only of cultivable paddy land and wetland within the area of jurisdiction of LLMC concerned. Further in Lalu P.S. v. State of Kerala[2020 (5) KHC 490] has held that the data bank to be prepared under the Act is the data bank of the cultivable paddy land existing as on the

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WP(C) NO. 11363 OF 2023

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date of the coming into force of the Rules, i.e., 24.12.2008. In

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Joy v. Revenue Divisional Officer/Sub Collector[2021 (1)

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KLT 433] it was held that it is the character and fitness of the land as available on 12.08.2008, that matters, to include or exclude a land from the data bank. This court in Arthasasthra Ventures (India) LLP v. State of Kerala[2022 (4) KLT OnLine 1222] has held that the most relevant aspect while considering Form-5 application is whether the land in question was a paddy land or a wetland when the Act, 2008 came into force and whether the land is fit for paddy cultivation and if the Revenue Divisional Officer was not satisfied with the available materials, ought to have resorted to scientific data including satellite photographs obtained from KSRSEC. 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

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WP(C) NO. 11363 OF 2023

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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. Further, this Court in Aparna Sasi Menon v. Revenue Divisional Officer[2023 (5) KLT 432] has held that the predominant factor for consideration 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.

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In spite of these categorical declaration by this Court in a catena of judgments as cited above, the application submitted by the petitioner has been rejected solely relying on the decision of the LLMC, not to remove the land from the data bank.

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In view of the same, I am of the opinion that Ext.P7 is liable to be interfered with and the same is accordingly set aside with a consequential direction to the 2^nd respondent – Revenue Divisional Officer to reconsider the same. Since the petitioner has been included in the 'Life Mission Project', as is

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WP(C) NO. 11363 OF 2023 6

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evident from Ext.P6, the 2^nd respondent should reconsider the matter at the earliest. If the 2^nd respondent finds that the report from the Kerala State Remote Sensing and Environment Centre (KSRSEC) is necessary for a proper disposal of the application, appropriate steps shall be taken to call for the same at the earliest and if any such request is made in this regard the authority to issue the report shall see that the report is submitted without any delay at any rate within an outer limit of two weeks from the date of making such a request. If KSRSEC report is not necessary, application shall be considered and disposed on the basis of KSRSEC validation report and in consultation with the Agricultural Officer. The Revenue Divisional Officer shall also take into consideration the dictum laid down by this Court in the decision cited supra . It is further ordered that, if the KSRSEC report is necessary for taking a final decision in the matter, a decision on Form-5 application shall be taken within an outer limit of one month from the date of receipt of a copy of KSRSEC report and if the 2^nd respondent finds that no such report is required and application could be disposed of in the light of the KSRSEC validation report and in consultation with

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WP(C) NO. 11363 OF 2023

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the Agricultural Officer, the application shall be decided at the earliest at any rate within one month from the date of receipt of a copy of the judgment.

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This Court is issuing a direction to consider the application in the shortest possible time in view of the fact that the petitioner is included in the Life Mission Project and this aspect should also be borne in mind by the 2^nd respondent while issuing orders as directed above.

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Sd/-

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VIJU ABRAHAM JUDGE

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WP(C) NO. 11363 OF 2023

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APPENDIX OF WP(C) 11363/2023

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PETITIONER EXHIBITS

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Exhibit	P1 TRUE COPY OF THE 18.10.2019 OF SUB	SALE DEED NO. 2607/2019 DATED REGISTRAR OFFICE NENMARA
Exhibit	P2 TRUE COPY OF THE 73794288 DATED 13	POSSESSION CERTIFICATE NO. .12.2022 OF NENMARA VILLAGE OFFICE
Exhibit	P3 TRUE COPY OF THE DATED 13.12.2022 CHITRUR TALUK	LAND TAX NO. KL09021907649/2022 IISSUED BY THE NENMARA VILLAGE OF
Exhibit	P4 TRUE COPY OF THE THE VILLAGE OFFIC	CERTIFICATE NO.118/2020 ISSUED BY ER, NENMARA DATED 25.02.2020
Exhibit	P5 TRUE COPY OF THE NEARBY HOUSES OF	PHOTOGRAPHS OF THE VEGETATION AND THE PROPERTY
Exhibit	P6 TRUE COPY OF THE 09.12.2021 ISSUED	CERTIFICATE NO. SC3/711/2023 DATED BY THE 3RD RESPONDENT
Exhibit	P7 TRUE COPY OF THE RDOPKD/3690/2022-	ORDER DATED 04.07.2022 IN FILE NO. M2 OF THE 2ND RESPONDENT

Sajeesh S., v. State of Kerala

Case brief

What is this about?

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Sajeesh S., v. State of Kerala

Case brief

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