Allowed

Jobi., v. the District Collector.

Kerala HC13 Nov 2023WP(C)/16916/2023

Case brief

AI extract

What is this about?

The Court held that the rejection of the petitioner’s Form 5 application to exclude land from the Data Bank was unsustainable as it relied solely on the Agricultural Officer’s report without independent assessment or site inspection. The petitioner was directed to get a KSRSEC report and a site inspection conducted.

What did the court decide?

Set aside Ext.P3 order; directed 2nd respondent to reconsider application after obtaining KSRSEC report (at petitioner's expense) and conducting site inspection, deciding within three months.

Jobi., Vs the District Collector. — 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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MONDAY, THE 13^TH DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945

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WP(C) NO. 16916 OF 2023

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PETITIONER:

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JOBI, AGED 54 YEARS S/O. VARGHESE, SRAMBIKKAL HOUSE, PALLATHATTAYIL, MULAMTHURUTHY P.O., ERNAKULAM -682314. BY ADVS. SHAKTHI PRAKASH MUHASIN K.M.

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM -682030. 2 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, K B JACOB ROAD, FORT KOCHI, ERNAKULAM, PIN - 682001 3 THE TAHSILDAR KANAYANNUR TALUK OFFICE, KANAYANNUR, PARK AVENUE, NEAR SUBHASH PARK, ERNAKULAM, PIN - 682011 4 THE VILLAGE OFFICER MULAMTHURUTHY VILLAGE OFFICE, MULAMTHURUTHY- ARAKKUNNAM ROAD, MULAMTHURUTHY, ERNAKULAM, PIN - 682314 5 THE AGRICULTURE OFFICER MULAMTHURUTHY KRISHI BHAVAN, MULAMTHURUTHY, ERNAKULAM, PIN - 682314 6 THE DIRECTOR KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN – 695033 BY ADV.SRI.SYAMARTHAK.B.S., GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 16916/2023

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JUDGMENT

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Dated this the 13^th day of November, 2023

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The petitioner has approached this Court aggrieved by the issuance of Ext.P3 order dated 15.03.2023 whereby Form 5 application submitted by him has been rejected by the 2nd respondent solely based on the report of the Agricultural Officer.

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Petitioner is the owner in possession of 82.28 Ares of land comprised in Survey Nos.104/8 (15 Ares), 104/9 (49.80 Ares), 12/6 (6.98 Ares) and 12/9 (10.50 Ares) of Mulamthuruthy Village in Kanayannur Taluk. A perusal of Ext.P3 order would reveal that the application has been rejected solely relying on the report of the Agricultural Officer and there is no independent consideration by the 2^nd respondent.

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This Court in Salim C.K. and another v. State

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of 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

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WP(C) NO. 16916/2023

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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

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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 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

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WP(C) NO. 16916/2023

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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. Further, this Court in

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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

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WP(C) NO. 16916/2023

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application submitted by the petitioner has been rejected solely relying on the report of the Agricultural Officer not to remove the land from the data bank.

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Accordingly, Ext.P3 order is set aside with a consequential direction to the 2^nd respondent to reconsider Form 5 application submitted by the petitioner in accordance with law, after calling for a KSRSEC report which shall be at the expense of the petitioner and after conducting a site inspection. The petitioner will be free to submit his notes of argument which shall also be duly considered by the 2^nd respondent while reconsidering the matter as directed above. After obtaining KSRSEC report, a decision on the application in Form 5 shall be taken within an outer limit of three months from the date of receipt of the said report.

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With the abovesaid directions, the above writ petition is disposed of.

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Sd/-

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VIJU ABRAHAM JUDGE

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csl

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WP(C) NO. 16916/2023

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APPENDIX OF WP(C) 16916/2023

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PETITIONER'S EXHIBITS

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Exhibit P1 TRUE COPY OF THE TAX RECEIPT DATED 25.05.2021 Exhibit P2 TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER DATED 10.09.2021 Exhibit P3 TRUE COPY OF THE ORDER DATED 15.03.2023 ISSUED BY THE 2ND RESPONDENT Exhibit P4 A COPY OF THE PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER

Jobi., v. the District Collector.

Case brief

What is this about?

What did the court decide?

Jobi., v. the District Collector.

Case brief

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