Allowed

Akhil Shaji, v. State of Kerala

Kerala HC23 Nov 2023WP(C)/8996/2023

Case brief

AI extract

What is this about?

Petitioner challenged rejection of Form-5 application to remove land from paddy land/Wetland Data Bank. Court set aside order dismissing application solely on LLMC report. Directed Revenue Divisional Officer to reconsider after independent assessment, site inspection, and considering KSRSEC report.

What did the court decide?

Ext.P6 order set aside; directed 3rd respondent to reconsider Form-5 application after site inspection, KSRSEC report, and Rule 4(4f) factors.

Akhil Shaji, 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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THURSDAY, THE 23^RD DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA, 1945

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WP(C) NO. 8996 OF 2023

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PETITIONER:

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AKHIL SHAJI, AGED 28 YEARS EETTINILKUNNATHIL, KOODAL P.O, GANDHI JUNCTION, KALANJOOR, PATHANAMTHITTA DISTRICT, PIN - 689693

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BY ADV UNNI. K.K. (EZHUMATTOOR)

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RESPONDENTS:

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

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2 THE DISTRICT COLLECTOR, CIVIL STATION, PATHANAMTHITTA, PIN - 689545

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3 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, ADOOR, PATHANAMTHITTA DISTRICT, PIN - 689523

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4 LOCAL LEVEL MONITORING COMMITTEE, KALANJOOR GRAMA PANCHAYATH, REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN, KALANJOOR, PATHANAMTHITTA, PIN - 689694

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OTHER PRESENT:

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GP - SYAMANTHAK B.S.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.8996 of 2023 2

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VIJU ABRAHAM, J.

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W.P.(C) No.8996 of 2023

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Dated this the 23^rd day of of November, 2023

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JUDGMENT

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Petitioner has approached this Court aggrieved by the issuance of Ext.P6 order, whereby Form-5 application submitted by the petitioner has been rejected by the 3^rd respondent solely based on the

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report of the Agricultural Officer.

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Petitioner submits that in respect of a

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similarly situated property owned by his father, Ext.P9 order has been issued by the 3^rd respondent whereby the Form 6 application has been allowed. Petitioner relies on Ext.P4 KSRSEC report, which was even available at the time of issuance of Ext.P6 wherein it is stated that the plot bordered by a road on northern side was observed under mixed vegetation/plantation/trees in 2004 data. Petitioner submits that Ext.P6 order has been issued solely relying on the report of the Agricultural Officer without adverting to Ext.P4 KSRSEC report or conducting a site inspection.

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W.P.(C) No.8996 of 2023 3

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

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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.

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Further in Lalu P.S. v. State of Kerala[2020 (5)

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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

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held that it is the character and fitness of the

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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

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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

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came into force and whether the land is fit for

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W.P.(C) No.8996 of 2023 4

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paddy cultivation and if the Revenue Divisional

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Officer was not satisfied with the available materials, ought to have resorted to scientific data including satellite photographs obtained from

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KSRSEC. This court in Muraleedharan Nair v.

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Revenue Divisional Officer[2023 (4) KLT 270] has

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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

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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

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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

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Sasi Menon v. Revenue Divisional Officer[2023 (5)

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KLT 432] has held that the predominant factor for

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W.P.(C) No.8996 of 2023 5

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consideration while considering the Form-5

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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

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by this Court in a catena of judgments as cited above, the application submitted by the petitioner

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has been rejected solely relying on the decision of the LLMC that not to remove the paddy land from the data bank.

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In view of the above, Ext.P6 is set aside

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with a consequential direction to the 3^rd respondent to reconsider Ext.P3 Form-5 application submitted by the petitioner. A final decision in

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the matter shall be taken after considering Ext.P4 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 3^rd respondent RDO while

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W.P.(C) No.8996 of 2023 6

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reconsidering the matter as directed above, shall

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advert to the findings of this Court in the 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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W.P.(C) No.8996 of 2023 7

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APPENDIX OF WP(C) 8996/2023

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PETITIONER'S EXHIBITS

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Exhibit P1	TRUE COPY OF THE SALE DEED NO. 1060/1/2021 DATED 6.10.2021 OF SRO ENADHIMANGALAM
Exhibit P2	TRUE COPY OF THE LETTER OF THE 4TH RESPONDENT DATED 26.10.2015 ALONG WITH COPY OF THE DATA BANK
Exhibit P3	TRUE COPY OF THE APPLICATION IN FORM 5 DATED 8.3.2022
Exhibit P4	TRUE COPY OF THE REPORT DATED 24.12.2022 OF KSRSEC
Exhibit P5	TRUE COPY OF THE REPORT DATED NIL SUBMITTED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT
Exhibit P6	TRUE COPY OF THE ORDER DATED 9.2.2023 OF THE 3RD RESPONDENT
Exhibit P7	TRUE COPY OF THE REPORT OF THE 4TH RESPONDENT WITH REGARD TO RE.SY NO.27/5-2
Exhibit P8	TRUE COPY OF THE ORDER DATED 19.6.2022 OF THE 3RD RESPONDENT
Exhibit P9	TRUE COPY OF THE ORDER DATED 3.10.2022 OF THE 3RD RESPONDENT

Akhil Shaji, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Akhil Shaji, v. State of Kerala

Case brief

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