Allowed

Biju G v. State of Kerala

Kerala HC29 Nov 2023WP(C)/22587/2021

Case brief

AI extract

What is this about?

The Court set aside the order rejecting the petitioner's Form-5 application to remove land from the Data Bank. It directed the Revenue Divisional Officer to independently assess the land's status using scientific reports like KSRSEC and conduct a site inspection, adhering to the Paddy Land Rules 2008.

What did the court decide?

Ext.P8 set aside; third respondent directed to reconsider Form-5 application after obtaining KSRSEC report and conducting site inspection within stipulated timelines.

Biju G Vs State of Kerala — 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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WEDNESDAY, THE 29^TH DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945

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WP(C) NO. 22587 OF 2021

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PETITIONER:

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BIJU G AGED 47 YEARS S/O.GOPINATHAPILLA, PADIPPURA VEEDU, CHERIYAVELINALLOOR.P.O, OYOOR, KOLLAM DISTRICT, PIN691516. BY ADV ANCHAL C.VIJAYAN

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.

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2 THE DISTRICT COLLECTOR, COLLECTORATE, KOLLAM, PIN-691013.

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3 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICER, PUNALUR, KOLLAM DISTRICT, PIN-691305.

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4 THE TAHSILDAR, TALUK OFFICE, KOTTARAKKARA, KOLLAM DISTRICT, PIN691506.

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5 THE VILLAGE OFFICER, VILLAGE OFFICE, ELAMADU, KOLLAM DISTRICT, PIN-691539.

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6 LOCAL LEVEL MONITORING COMMITTEE ELAMADU GRAMA PANCHAYAT, REPRESENTED BY ITS CONVENORAGRICULTURAL OFFICER, KRISHI BHAVAN, ELAMADU.P.O, KOLLAM DISTRICT, PIN-691533.

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BY ADV ADVOCATE GENERAL OFFICE KERALA

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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 29.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C). No.22587 of 2021

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: 2 :

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VIJU ABRAHAM, J.

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- - - - W.P.(C) No.22587 of 2021

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- - - - Dated this the 29^th day of November, 2023

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JUDGMENT

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The petitioner has approached this Court aggrieved by the issuance of Ext.P8 order, whereby Form-5 application submitted by the petitioner has been rejected by the 3^rd respondent relying on the report of the Agricultural Officer. The petitioner would contend that there is no independent consideration by the 3^rd respondent regarding the issue involved.

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The petitioner is the absolute owner and in possession of 23.50 Ares of land in Re. Sy. No.141/11, 141/19-2 and 141/20 in Block No.27 of Elamadu Village. The petitioner relies on Ext.P3 photographs as well as Ext.P4 data bank, which shows that the property comprised in Sy. Nos. 141/11 and 141/19 is planted with rubber and Sy. No. 141/20 is cultivated with plantains. The petitioner also relies on Ext.P6 KSRSEC report, wherein it is observed that the property comprised in Sy. No.141/11 was partially under crop land and partially under mixed plantation/vegetation in the 2004 data. It is not discernible whether the KSRSEC report is obtained in respect of other two properties, for which the Form 5 application has been submitted.

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W.P.(C). No.22587 of 2021

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: 3 :

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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 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 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

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W.P.(C). No.22587 of 2021 : 4 :

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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 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 above, Ext.P8 is set aside with a consequential direction to the 3^rd respondent to reconsider the Form-5 application submitted by the petitioner. If the petitioner

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W.P.(C). No.22587 of 2021

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: 5 :

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submits an application to the Agricultural Officer concerned seeking to obtain KSRSEC Report in respect of the properties comprised in Sy. Nos. 141/19-2 and 141/11, paying the prescribed fee within a period of two weeks, the 3^rd respondent shall pass order afresh in the Form-5 application within a further period of two months from the date of receipt of the KSRSEC Report and take a final decision in the matter after considering the report as well as the relevant factors stipulated in Rule 4 (4f) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 and after conducting a site inspection. Petitioner will be free to file argument notes incorporating copies of the judgments relied on by him to substantiate his contentions and the documents including Ext.P6 and the 3^rd respondent while reconsidering the matter as directed above, shall advert to the findings by this Court in those judgments cited (supra) and also the contentions of the petitioner in the argument notes submitted by him.

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The writ petition is disposed of as above.

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Sd/- VIJU ABRAHAM JUDGE

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sm/

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: 6 :

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W.P.(C). No.22587 of 2021

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APPENDIX OF WP(C) 22587/2021

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PETITION	ER EXHI	BITS
Exhibit	P1	TRUE COPY OF THE TAX RECEIPT NO.KL 02042605402/2020 DATED 19.06.2020 ISSUED BY THE 5TH RESPONDENT
Exhibit	P2	TRUE COPY OF THE TAX RECEIPT NO. KL 02042603842/2021 DATED 21.04.2021 ISSUED BY THE 4TH RESPONDENT
Exhibit	P3	TRUE PHOTO SHOWING THE PRESENT NATURE OF THE LAND OWNED BY THE PETITIONER
Exhibit	P4	TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK PREPARED BY THE 6TH RESPONDENT SHOWING THE DESCRIPTION OF THE LAND OWNED BY THE PETITIONER
Exhibit	P5	TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER IN FORM NO.5
Exhibit	P6	TRUE COPY OF THE REPORT NO.A 172/2015/KSREC DATED 18.07.2018 IN RESPECT OF THE LAND IN SY.NO.141/11 IN BLOCK NO.27 OF ELAMADU VILLAGE
Exhibit	P7	TRUE COPY OF THE REPORT DATED NIL SUBMITTED BY THE 6TH RESPONDENT TO THE 3RD RESPONDENT
Exhibit	P8	TRUE COPY OF PROCEEDINGS NO.A.6050/2021/K.DIS.DATED 24.09.2021 ISSUED BY THE 3RD RESPONDENT.

Biju G v. State of Kerala

Case brief

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Biju G v. State of Kerala

Case brief

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