Kerala High Court
Tijo Joseph vs The State Of Kerala on 23 June, 2025
Author: C.S.Dias
Bench: C.S.Dias
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 23RD DAY OF JUNE 2025 / 2ND ASHADHA, 1947
WP(C) NO. 18181 OF 2024
PETITIONER:
TIJO JOSEPH,
AGED 52 YEARS
KONDODICKAL HOUSE, IRAVICHIRA P.O., THOTTACKAD,
KOTTAYAM DISTRICT, PIN - 695605
BY ADVS. SRI.P.ABRAHAM CHERIAN
SMT.NIMMY K. JOSEPH
SHRI.AJAI BABU
SHRI.JAISON S. ROZARIO
SHRI.JOE JOSEPH
SMT.AASHIKA ANIL ERANEZHUTH
SMT.DYUTHI KURIAN PULIYELI
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 DISTRICT COLLECTOR,
HGRM+3CH, KOTTAYAM - KUMILY RD, COLLECTORATE,
KOTTAYAM, KERALA, PIN - 686002
3 REVENUE DIVISIONAL OFFICER,
HGQ8+W7V, SECOND FLOOR, MINI CIVIL STATION, UNION
CLUB ROAD, PUTHENANGADY, KOTTAYAM, KERALA, PIN -
686001
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4 TAHSILDAR (LR),
CGVQ+874, KACHERY RD, OPPOSITE GOVERNMENT MODEL HSS,
CHANGANASSERY, KERALA, PIN - 686101
5 AGRICULTURAL OFFICER,
KRISHI BHAVAN, VAKATHANAM PANCHAYATH, KOTTAYAM,
PIN - 686538
6 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE
(KSREC), C BLOCK, VIKAS BHAVAN, THIRUVANANTHAPURAM,
KERALA, PIN - 695033
7 LOCAL LEVEL MONITORING COMMITTEE,
REPRESENTED BY THE CONVENOR/ AGRICULTURAL OFFICER,
VAKATHANAM PANCHAYAT, VAKATHANAM P.O.,
KOTTAYAM DISTRICT, PIN - 686538
BY SMT.VIDYA KURIAKOSE, SR.GP
SRI.VISHNU S CHEMPAZHANTHIYIL, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 23.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Dated this the 23rd day of June, 2025
The petitioner is the owner in possession of 38
Ares of land comprised in Re-Survey No.133/6 of
Thottakadu Village, Chenganassery Taluk, covered under
Ext.P1 sale deed. Even though the petitioner’s property is
a converted land, the respondents have erroneously
classified the same as ‘Nilam’ in the basic tax register. In
order to use the property for any other purpose, the
petitioner had filed an application under the Kerala Land
Utilisation Order, 1967 (for short ‘KLUO’), which was
allowed by Ext.P2 order. Based on the said order, the
petitioner’s predecessor in interest had sought for the
correction of the entries in the basic tax register. Pursuant
to the said application, the Revenue Divisional Officer
(3rdrespondent) had submitted Ext.P3 field inspection
report, confirming that the petitioner’s property was
converted almost two decades back. There are 21 coconut
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trees aged more than 20 years and other plantations in
the property. However, the 2nd respondent rejected the
application on the ground that there was no provision of
law to effect the correction. Subsequently, the Hon’ble
Supreme Court in Revenue Divisional Officer, Fort
Kochi vs. Jalaja Dileep and another [2015 (2) KHC
109(SC)] has held that, even though the classification of
land cannot be altered in the basic tax register, changes
can be effected in the payment of tax under Section 6A of
the Kerala Land Tax Act. The said legal position has been
reiterated by this Court in Tahsildar, Thodupuzha
Taluk and another vs. Renjith George [2020 (1) KHC
865]. Accordingly, the petitioner submitted Ext.P8
application before the 4th respondent to change the nature
of the land in the revenue records, which was allowed by
Ext.P9 order. Surprisingly, by Ext.P10 proceedings, the 4 th
respondent annulled Ext.P9 on the ground that the
petitioner’s property is still classified as paddy land in the
data bank. Immediately, the petitioner submitted Ext.P12
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application in Form 5 under Rule 4 (4d) of the Kerala
Conservation of Paddy Land and Wetland Rules, 2008
(‘Rules’, for brevity). But, by Ext.P13 order, the 3 rd
respondent perfunctorily rejected the application. Then
the petitioner filed W.P(C) No.10821 of 2023 before this
Court, which was allowed by Ext.P14 judgment, quashing
Ext.13 order and directing the 3rd respondent to
reconsider Ext.P12 application afresh after adverting to
the law laid down by this Court. Notwithstanding the
specific directions in Ext.P14 judgment, the 3 rd respondent
has again rejected the Form 5 application by Ext.P16
order. Ext.P16 order is ex facie illegal and arbitrary.
Hence, the writ petition.
2. The 2nd respondent has filed a counter
affidavit asserting that, as per the Agricultural Officer’s
report the applied land is low lying and there is a stream
flowing through the property. The conversion of the land
would adversely affect the environment and the water
flow. Moreover, the entire property was not converted
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prior to 12.08.2008. Therefore, there is no error in
Ext.P16 order.
3. Heard, the learned counsel for the
petitioner and the learned Senior Government Pleader.
4. The petitioner’s specific case is that, his
property is a converted land. By Ext.P2 proceedings, the
2nd respondent had held that the petitioner’s property can
be used for any other purposes other than agricultural
operations. Ext.P2 order was passed based on Ext.P3 field
inspection report of the 3rd respondent, who categorically
found that the petitioner’s property was converted two
decades prior to 2014, and has 21 coconut trees and also
other plantations. Based on Ext.P2 order, the 4th
respondent also changed the nature of the petitioner’s
property in the revenue records. It is after the above said
proceedings, that the petitioner preferred Ext.P12
application to exclude the property from the
data bank. It is at this juncture that the Agricultural
Officer has reported that the property is not converted
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prior to 2008, the property is low lying and there is a
stream in the petitioner’s property. Relying on the
said report, the 3rd respondent passed Ext.P13 order
rejecting the Form 5 application.
5. By Ext.P14 judgment, this Court set aside
Ext.P13 order by observing as follows:
“5. Petitioner’s application in Form 5 of the Rules was
rejected, relying on the Agricultural Officer’s report. The
said report stated that petitioner’s land need not be
excluded from the data bank. Petitioner asserted that the
surrounding areas are well-developed with multiple
buildings and also that the impugned order had not even
referred to the suitability of the land for paddy cultivation.
6. In the decision in Arthasasthra Ventures (India)
LLP v. State of Kerala [2022 (7) KHC 591] and in
Muraleedharan Nair R. v. Revenue Divisional Officer
[2023 (4) KHC 524], this Court had observed that the RDO
cannot merely follow the report of the Agricultural Officer
or the LLMC without any independent assessment of the
status of the land. This Court had also observed that while
considering an application filed under Form 5, the
Authority must consider whether the removal of the
property from the data bank will affect paddy cultivation in
the land and also whether it will affect the nearby paddy
fields. Similarly, in the decision in Aparna Sasi Menon v.
Revenue Divisional Officer Irinjalakuda [2023 (6) KHC
83] it has been observed that when the competent
authority considers a Form-5 application, the predominant
consideration should be whether the land which is sought
to be excluded from data bank is one where paddy
cultivation is possible and feasible including the existence
of irrigation facilities.
7. A perusal of the impugned order reveals that the
aforementioned specific aspects have not been adverted to,
and instead, the application has been rejected solely on the
basis of the report of the Agricultural Officer. The Sub
Collector could have atleast perused the scientific data for
deciding the matter by directing the petitioner to apply for
the same or by conducting a site visit. There is also no
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finding that the land is suitable for paddy cultivation and
whether there are any paddy lands in the nearby areas.
Since the order is bereft of material particulars and is not
issued on any perceivable data, it cannot be said to be a
reasoned order. Discernibly, there is no independent
application of mind to the relevant circumstances, and
hence, the impugned order is liable to be set aside and a
fresh consideration be made.
8. In the impugned order, it is stated that the subject
property is a low lying area and has a fish pond apart from
a wetland along the boundary of petitioner’s property and
also a thodu through the boundary. The existence of a pond
by itself in a dry land cannot be treated as a paddy land
since by the definition of the word ‘paddy land’, the pond
must be an allied construction of the paddy land. If the
surrounding properties are not paddy land then the
existence of a pond cannot make the area where the pond
is situated into a paddy land.
9. In the above circumstances, Ext.P12 is quashed and
the 3rd respondent is directed to reconsider the Form 5
application submitted by the petitioner and issue fresh
orders, after considering the report of KSREC, if applied
and obtained and other relevant factors mentioned in rule
4(4f) of the Rules. The order, as directed above, shall be
issued within a period of three months from the date of
receipt of a copy of this Judgment.
The writ petition is allowed as above.”
6. Notwithstanding the specific directions in
Ext.P14 judgment, the 3rd respondent did not directly
inspect the property. Instead, he relied on the Ext.P17
report submitted by the Kerala State Remote Sensing and
Environment Centre (‘KSREC’, for brevity) as envisaged
under Rule 4(4f) of the Rules.
7. It is apposite to refer to the observations in
Ext.P17 report, which reads as follows:
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“The analysis has been carried out from all available data
sets of toposheet (1967) and different satellite data sets of 2008,
2010, 2011 and 2017 and 2022 for the survey plot.
As per the toposheet of 1967, the survey plot 133/6 was
observed as paddy land. The plot was observed under mixed
vegetation/plantation in the data of 2008. The same land use
pattern was observed to continue in the data of 2010 and 2011.
The data of 2017 shows the plot under vegetation with scattered
plantation. The data of 2022 shows the plot under exposed soil
with a building/structure towards south side.”
8. In Ext.P3 field inspection report dated
24.01.2014 submitted by the 3rd respondent, he has
reported that the petitioner’s property was converted
nearly two decades back and there are coconut trees and
other plantations in the property, and the property
appears to be a garden land.Now, after the lapse of nearly
ten years, the 3rd respondent is estopped from taking a
volte face and contending that the Agricultural Officer
has reported that the petitioner’s property is a paddy land
and there is no material to substantiate that it was
converted before 2008. Similarly, in Ext.P17 report, the
expert has observed that, as per the data of 2008, the
petitioner’s property is under mixed vegetation/plantation.
The said pattern has continued in data of 2010, 2011 and
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2017. In the data of 2022, the property is shown to be
under exposed soil with a building/structure on the
southern side.
9. The impugned Ext.P16 order shows that
the 3rd respondent has essentially reiterated the same
findings as in Ext.P13 order, other than for incorporating
the observations in the KSREC report. The 3rd respondent
has failed to adhere to the specific directions in Ext.P14
judgment ― to independently evaluate the nature and
character of the property as on 12.08.2008 and the law
laid down in the decisions referred to in the judgment.
10. In Mather Nagar Residents Association
and Another v. District Collector, Ernakulam and
others (2020 (2) KHC 94), a Division Bench of this Court
has held that, mere fallowness or seasonal waterlogging of
a low-lying land does not classify the property as a
paddy/wetland in contemplation of the Act.
11. In view of the explicit findings in Ext.P3
field inspection report and Ext.P17 KSREC report, and
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the fact that the 3rd respondent has not directly inspected
the property, I accept the findings in the above materials
and hold that the petitioner’s property is to be excluded
from the data bank, as it is not suitable for paddy
cultivation and the removal of the property from the data
bank would not adversely affect the paddy cultivation in
the locality. Actually, in light of the law in Renjith
George’s case, the petitioner need not have taken the
route under the Act. Instead, he could have filed an
application in Form A under the Kerala Land Tax Act.
12. On an overall consideration of the facts and
the materials on record, especially Exts.P3 and P17
reports, I do not find any valid ground or justification to
remit the matter again to the authorised officer, which
will only prolong the miseries of the petitioner, who has
been agonizingly waiting for a decision on his application
since, 29.09.2021.
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13. In Comptroller and Auditor General of
India Gian Prakash, New Delhi & Another V. K.S.
Jagannathan & Another [(1986) 2 SCC 679], the
Honourable Supreme Court has affirmed that to prevent
injustice, the court may pass directions which the
Government or public authority should have passed at its
level.
In the aforesaid circumstances, I allow the writ
petition in the following manner:
(i) Ext.P16 order is quashed.
(ii) Ext.P12 application is allowed. The
aforementioned property is declared as unsuitable
for paddy cultivation.
(iii) The authorised officer is directed to
remove the petitioner’s property from the data
bank and issue a consequential notification within
two months from the date of production of a copy
of this judgment.
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(iv) The petitioner is at liberty to get the
nature of his property changed in the revenue
records as per the Act and the Rules.
Sd/-
C.S.DIAS
JUDGE
NAB
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APPENDIX OF WP(C) 18181/2024
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE SALE DEED DATED 18-
12-2013 EXECUTED BY VARGHESE AND DEVASYA
IN FAVOR OF THE PETITIONER
EXHIBIT P2 A TRUE COPY OF THE PROCEEDING OF THE SUB-
COLLECTOR DATED 20.11.1995
EXHIBIT P3 A TRUE COPY OF THE REPORT DATED 24.01.2014
OF THE 3RD RESPONDENT SUBMITTED TO THE 2ND
RESPONDENT
EXHIBIT P4 A TRUE COPY OF THE LETTER DATED 29.08.2014
OF THE 2ND RESPONDENT
EXHIBIT P5 A TRUE COPY OF THE GAZETTE NOTIFICATION
NO. K-13430/08 DATED 06.03.2010, ISSUED BY
THE 3RD RESPONDENT
EXHIBIT P6 THE PHOTOGRAPHS ILLUSTRATING THE NATURE OF
THE PETITIONER’S SAID LAND
EXHIBIT P7 A TRUE COPY OF THE SURVEY MAP OF THE SAID
LAND
EXHIBIT P8 A TRUE COPY OF THE APPLICATION DATED
02.12.2022 SUBMITTED BEFORE THE 4TH
RESPONDENT BY THE PETITIONER
EXHIBIT P9 A TRUE COPY OF THE ORDER PASSED BY THE 4TH
RESPONDENT DATED 20.01.2023
EXHIBIT P10 A TRUE COPY OF THE PROCEEDINGS NO. B7 (1)-
6203/2022 DATED 24.02.2023 OF THE 4TH
RESPONDENT
EXHIBIT P11 A TRUE COPY OF THE RELEVANT PAGE OF THE
DATA BANK FOR VAKATHANAM GRAMA PANCHAYATH
IN GAZZATTE NO. S.C.4-5.2.2021
EXHIBIT P12 A TRUE COPY OF THE FORM 5 APPLICATION
DATED 29.09.2021 FILED BEFORE THE 3RD
RESPONDENT UNDER RULE 4D OF THE KERALA
CONSERVATION OF PADDY LAND AND WET LAND
RULES, 2015
EXHIBIT P13 A TRUE COPY OF THE ORDER DATED 29.08.2022
OF THE 3RD RESPONDENT
EXHIBIT P14 THE TRUE COPY OF THE JUDGEMENT DATED
13.10.2023 PASSED BY THIS HON’BLE COURT IN
WPC NO.10821 OF 2023
EXHIBIT P15 THE TRUE COPY OF THE JUDGEMENT DATED
13.10.2023 IN WPC NO.11567 OF 2023 PASSED
BY THIS HON’BLE COURT
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EXHIBIT P16 A TRUE COPY OF THE ORDER DATED 17.03.2024
OF THE 3RD RESPONDENT
EXHIBIT P17 A TRUE COPY OF THE KSERC REPORT DATED
19.01.2024 OF THE 6TH RESPONDENT