Allowed

Jacob P.V , v. the Revenue Divisional Officer

Kerala HC10 Nov 2023WP(C)/11563/2023

Case brief

AI extract

What is this about?

Held that rejecting a Form 5 application solely because land is fallow is unsustainable per precedent. The Revenue Divisional Officer must independently assess the land's nature and character at the time of the Act's commencement. The impugned nonspeaking order setting aside Ext P3 is set aside with a direction to reconsider the application within three months.

What did the court decide?

Ext P3 is set aside with a direction to the 1st respondent to reconsider the Form 5 application within three months.

Jacob P.V , Vs the Revenue Divisional Officer — Land Acquisition | 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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FRIDAY, THE 10TH DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945
WP(C) NO. 11563 OF 2023

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PETITIONER:

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JACOB P.V ,
AGED 56 YEARS
S/O. VARGHESE, PATHIKKAL VEEDU, KACHERY VATTARAM,
PUTHUNAGARAM P.O, CHITTUR, PALAKKAD DISTRICT., PIN -
678503
BY ADVS.
JACOB SEBASTIAN
WINSTON K.V
ANU JACOB
DIVYA R. NAIR

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RESPONDENTS:

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1 THE REVENUE DIVISIONAL OFFICER, PALAKKAD, OFFICE OF THE REVENUE DIVISIONAL OFFICER, CIVIL STATION P.O, PALAKKAD DISTRICT., PIN - 678001

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2 THE VILLAGE OFFICER, KIZHAKKANCHERRY-II VILLAGE, KIZHAKKANCHERRY P.0, PALAKKAD DISTRICT., PIN - 678684

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3 THE AGRICULTURAL OFFICER FOR THE KIZHAKKANCHERRY GRAMAPANCHAYAT, AGRICULTURE OFFICE, KIZHAKKANCHERRY P.O, PALAKKAD DISTRICT., PIN - 678684 GP - RIYAL DEVASSY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) No. 11563 of 2023 : 2 :

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VIJU ABRAHAM , J. =========================== WP(C) No. 11563 of 2023

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============================

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Dated this the 10^th day of November, 2023

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J U D G M E N T

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Petitioner has approached this Court aggrieved by Ext P3 order whereby the Form 5 application has been rejected solely for the reason that the property has been lying as fallow.

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Petitioner is the absolute owner and in possession of 0.0607 hectors of land comprised in Block No.39, Sy.No. 234/19 (234/4), Kizhakkancherry-II Village, Alathur Taluk & Palakkad District. Petitioner relying on Ext P1 KSRSEC report would submit that the plot bordered by a water body on northern side is observed as fallow land in the data of 2004 and 2005. In 2016 and in 2022 data shows exposed soil towards north.

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Heard the learned Government Pleader also.

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A perusal of Ext P3 would reveal that none of the parameters for consideration of Form 5 application has been taken into consideration while rejecting Ext P3 application. Only for the reason that the property is lying as fallow cannot be a reason for rejecting the application as held by

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this Court in Mather Nagar Residents Association v. The District Collector, Ernakulam [2020 (2) KHC 94] . Even if the property was found as fallow in the KSRSEC report the Revenue Divisional Officer ought to have conducted a site inspection and verify the nature of the land.

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This Court in Salim C.K. and Another v. State of Kerala and Others [2017 (1) KHC 394] has held that the Data

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WP(C) No. 11563 of 2023 : 3 :

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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 date of the coming into force of the Rules, i.e., 24.12.2008. In Joy v. Revenue Divisional Officer/Sub Collector [2021 (1) 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

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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 KSREC. 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,

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WP(C) No. 11563 of 2023 : 4 :

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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. 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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I find that while issuing Ext P3, none of these aspects was considered in a proper perspective. Therefore, Ext P3 is a nonspeaking order, liable to be interfered with. Therefore Ext P3 is set aside with a consequential direction to the 1^st respondent to reconsider Form 5 application submitted by the petitioner within a period of three months from the date of receipt of a copy of this judgment. It is made clear that the petitioner will be free to file an argument note producing all the judgment in support of his

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WP(C) No. 11563 of 2023 : 5 :

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contention which shall also be duly considered while reconsidering the matter as directed above.

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With the above said direction, the writ petition is disposed of.

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Sd/-

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VIJU ABRAHAM JUDGE

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sbk/-

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WP(C) No. 11563 of 2023 : 6 :

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APPENDIX OF WP(C) 11563/2023

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PETITIONER EXHIBITS
Exhibit-P1A TRUE COPY OF REPORT DATED 15.10.2022
ISSUED BY THE KSREC OBTAINED UNDER
PROVISIONS OF THE RTI ACT IN RELATION TO
THE PETITIONER'S PLOT
Exhibit-P2A TRUE COPY OF THE REPORT DATED 27.03.2023
ISSUED BY 3RD RESPONDENT OBTAINED UNDER
PROVISIONS OF THE RTI ACT IN RELATION TO
THE PETITIONER'S PLOT
Exhibit-P3A TRUE COPY OF THE ORDER DATED 01.12.2022
ISSUED BY THE FIRST RESPONDENT

Jacob P.V , v. the Revenue Divisional Officer

Case brief

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Jacob P.V , v. the Revenue Divisional Officer

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