P.V. Ali Mubaraq vs The Local Level Monitoring ...
2021 Latest Caselaw 5850 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

       THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942

                  WP(C).No.13297 OF 2019(J)


PETITIONER:

              P.V. ALI MUBARAQ, AGED 50 YEARS
              S/O ALAVIKUTTY, PEE VEE HOUSE, NILAMBUR P.O.,
              MALAPPURAM DISTRICT, 679 330.

              BY ADV. SRI.BINOY VASUDEVAN

RESPONDENT:

              THE LOCAL LEVEL MONITORING COMMITTEE
              FOR KOZHIKODE CORPORATION, REPRESENTED BY ITS
              CONVENER, THE PRINCIPAL AGRICULTURAL
              OFFICER/AGRICULTURAL FIELD OFFICER, KRISHI
              BHAVAN, PUTHIYARA, KOZHIKODE-673 004.


OTHER PRESENT:

              GP. K.J.MANURAJ

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C)No.13297 of 2019

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                     W.P.(C)No.13297 of 2019
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                              JUDGMENT

Petitioner is the Director of a company holding a

land measuring 2.05 acres in Resurvey Nos.989/1 and 989/2 of

Kasaba Village in Kozhikode Taluk. The said land is situated

within the limits of the Kozhikode Corporation. The petitioner

has applied to the Corporation for a building permit for putting

up a commercial building on the land. The application of the

petitioner was however rejected by the Corporation as per

Ext.P5 communication. The petitioner challenged Ext.P5

communication before this Court in W.P.(C) No.23866 of 2015.

As per Ext.P6 judgment, this Court set aside Ext.P5

communication and directed reconsideration of the application.

It is stated by the petitioner that the direction in Ext.P6 W.P.(C)No.13297 of 2019

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judgment has not been complied with by the Corporation since

it is found in the meanwhile that the land is included as

'wetland' in the data bank prepared under the Kerala

Conversation of Paddy Land and Wetland Act, 2008 (the Act).

The petitioner, thereupon, preferred an application before the

respondent for removal of the land from the data bank. The

respondent has rejected the application as per order dated

25.01.2016 stating that the land is a wetland and therefore,

the same cannot be removed from the data bank. The

petitioner challenged the order of the respondent dated

25.01.2016 before this Court in W.P.(C)No.6760 of 2016. In the

said writ petition, the petitioner has applied for appointment of

an Advocate Commissioner to ascertain and report the nature

of the land. An Advocate Commissioner was appointed in the

said proceedings. Ext.P9 is the report of the Advocate

Commissioner. W.P.(C) No.6760 of 2016 was disposed of by

this Court directing the respondent to consider the application

of the petitioner for removal of the land from the data bank W.P.(C)No.13297 of 2019

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afresh, having regard to the report of the Advocate

Commissioner as also the report of the Kerala State Remote

Sensing and Environment Centre (KSREC) obtained by the

petitioner which was part of the records in the said case.

Ext.P11 is the judgment in the said case. Pursuant Ext.P11

judgment, the respondent considered the application of the

petitioner and passed Ext.P12 order rejecting the application

again. Ext.P12 order is under challenge in the writ petition.

The case set out by the petitioner in the writ petition is that the

land is not one conforming to the definition of 'wetland' in the

Act.

2. A report has been filed in this matter by the

Convenor of the respondent justifying Ext.P12 communication.

The objections raised to Ext.P9 report of the Advocate

Commissioner in W.P.(C) No.6760 of 2016 was also made

available.

3. Heard the learned counsel for the petitioner as

also the learned Government Pleader. W.P.(C)No.13297 of 2019

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4. The short question that falls for consideration

in the matter is whether the respondent is justified in including

the land of the petitioner as 'wetland' in the data bank

prepared under the Act. 'Wetland' is defined in the Act thus:

""wetland" means land lying between terrestrial and aquatic systems, where the water table is usually at or near the surface or which is covered by shallow water or characterized by the presence of sluggishly moving or standing water, saturating the soil with water and includes backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers".

In Asma v. The District Collector, 2015 (1) KLT 30, having

regard to the definition aforesaid, this Court held that wetlands

brought under the purview of the Act are natural lands lying

between terrestrial and aquatic systems. In Suraj v. State of

Kerala, 2018 (1) KLT 1, this Court clarified further that if one

understands the scope of the definition in the context of the

Act, it could be inferred that the word 'systems' contained in

the definition refers to 'ecosystems' and therefore, only natural W.P.(C)No.13297 of 2019

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land lying between terrestrial ecosystems and aquatic

ecosystems could be treated as 'wetland' under the Act. The

respondent has no case that the land involved in this matter is

a land lying between terrestrial ecosystems and aquatic

ecosystems.

5. Further, Sub-rule (2) of Rule 4 of the Kerala

Conservation of Paddy Land and Wetland Rules provides for

the procedure for inclusion of a land as 'wetland' or 'paddy

land' in the data bank. The said Rule reads thus:

"(2) (1)_Þ¢ ©ÉºGdɵÞø¢ ÈßÜÕßÜáU µc×ßçÏÞ·cÎÞÏ æÈWÕÏÜáµ{áç¿ÏᢠÄHàVJ¿B{áç¿ÏᢠÕßÖÆÕßÕøB{¿BßÏ çÁxÞÌÞCí ÄÏîÞùÞAáKÄßçÜAí ÄÞæÝMùÏáK È¿É¿ßdµÎ¢ ÉÞÜßçAIÄÞÃí, ¥ÏÄí:_ (®) ØÎßÄßAí ¥ÇßµÞøßÄÏáU dÉçÆÖæJ ÈßÜÕßÜáU ùÕÈcá ùßAÞVÁáµZ dɵÞø¢ µc×ßçÏÞ·cÎÞÏ æÈWÕÏÜÞÏß çø¶æM¿áJßÏßGáU ÍâÎßÏáæ¿ ÕßÖÆÞ¢ÖBZ ÌtæMG ÕßçÜï¼í ³ËàØV ÌtæMG µc×ß ³ËàØVAí ÈWçµIÄᢠ§Äßæa ¥¿ßØíÅÞÈJßW µc×ß ³ËàØV, ³çøÞ ØíÅÜÕᢠÉøßçÖÞÇߺîí dÉØñáÄØíÅÜ¢ §çMÞZ æÈWµc×ßAí ¥ÈáçÏÞ¼cÎÞÏ æÈW ÕÏW ¦çÃÞæÏKí ÉøßçÖÞÇߺîᢠÄHàVJ¿Bæ{ Ø¢Ìtߺî ùÕÈcá ùßAÞVÁáµ{áæ¿ ¥¿ßØíÅÞÈJßW ÕßçÜï¼í ³ËàØV W.P.(C)No.13297 of 2019

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ØíÅÜÉøßçÖÞÇÈ È¿JßÏᢠçÌÞicæMç¿IÄᢠ¥dɵÞø¢ ÉøßçÖÞÇÈ È¿Jß çÌÞicæMG ÕßÕøB{âæ¿ ¥¿ßØíÅÞÈJßW, µc×ß ³ËàØùᢠÕßçÜï¼í ³ËàØùᢠµâ¿ß æÈWÕÏÜáµ{áæ¿ÏᢠÄHàVJ¿B {áæ¿Ïᢠ²øá µø¿í çÁxÞÌÞCí ÄÏîÞùÞAß ØÎßÄßÏáæ¿ Éøß·ÃÈÏíAí ØÎVMßçAIÄáÎÞÃí. (Ìß) (®) ¶mdɵÞø¢ ÜÍßºî µø¿í çÁxÞÌÞCí ØÎßÄß ÉøßçÖÞÇßçAIÄᢠ¦ÕÖcæÎCßW, ÏáµñÎÞÏ ÄßøáJÜáµZ ÕøáçJIÄáÎÞÃí. ØÎßÄßÏáæ¿ ¥ÇßµÞøÉøßÇßAáUßæÜ æÈWÕÏÜáµ{áç¿ÏᢠÄHàVJ¿B{áæ¿ÏᢠdÉØñáÄ µø¿í çÁxÞÌÞCí, ÈÞ×ÃW ùßçÎÞVGí æØXØßBí ¯¼ÈßØßçÏÞ, Ø ¢ØíÅÞÈ ÍâÕßÈßçÏÞ· çÌÞVçÁÞ, ÍìÎÖÞdØñ ÉÀÈçµdwçÎÞ (CESS), §XçËÞVçÎ×X çµø{Þ Îß×çÈÞ (IKM), ÎçxæÄCßÜᢠçµdw/Ø¢ØíÅÞÈ ÖÞdØñ ØÞçCÄßµØíÅÞÉÈçÎÞ, ©Éd·ÙºßdÄB{áæ¿ ¥¿ßØíÅÞÈJßW ÄÏîÞùÞAßÏßGáU ÍâÉ¿Jßæa ØÙÞÏçJÞæ¿ ÉøßçÖÞÇߺîí ¥LßÎøâÉ¢ ÈWµß ØÎßÄß ¥¢·àµøßçAIÄÞÃí. ®KÞW ¨ ©ÉºGdɵÞø¢ µø¿í çÁxÞÌÞCí ÄÏîÞùÞAáçOÞZ ©Éd·ÙJßæa ¥¿ßØíÅÞÈJßW ¯xÕᢠ¥ÕØÞÈ¢ ÄÏîÞùÞAßÏ çÁxÞÌÞCí ¦ÏßøßAâ ¥ÕÜ ¢ÌßçAIÄí."

It is evident from the extracted Rule that the statute does not

contemplate inclusion of any land which is not shown as

'wetland' in the revenue records as 'wetland' in the data bank W.P.(C)No.13297 of 2019

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prepared under the Act. In the report filed by the Convenor of

the respondent, it is admitted that the land referred to in the

writ petition is one classified in the revenue records as

'unoccupied dry land'. A land which is classified in the revenue

records as dry land, according to me, cannot be included as

wetland in the data bank prepared under the Act.

6. That apart, it is stated in the impugned order

that there exists a marshy land with mangroves on the

northern side of the land involved in this matter and there is a

stream through the southern side of the land. It is also stated

in the impugned order that in the report of the KSREC, the land

is shown as a fallow one with mixed vegetation. A reading of

Ext.P12 order would indicate that it is on account of the said

reasons that the respondent chose to include the land as

wetland in the data bank. As noted, the respondent has no

case that the land was a paddy land. In Mather Nagar

Residents Association v. District Collector, 2020(2) KLT

192, a Division Bench of this court held that merely for the W.P.(C)No.13297 of 2019

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reason that a land was lying fallow and water gets

accumulated in the land during rainy season, the same cannot

be included as 'wetland' in the data bank. Further, existence of

a stream on one side of the land and a marshy land on the

other side of the land are not reasons sufficient to include the

land as 'wetland' in the data bank.

In the result, the writ petition is allowed. Ext.P12

communication is set aside and the respondent is directed to

exclude the land of the petitioner from the data bank.

Sd/-

P.B.SURESH KUMAR, JUDGE rkj/ds 19.02.2021 W.P.(C)No.13297 of 2019

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APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF DOCUMENT NO.1196/1/1994 OF S.R.O, KOZHIKODE.

EXHIBIT P2 TRUE COPY OF DOCUMENT NO.1185/1/1994 OF S.R.O, KOZHIKODE.

EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE IN RESPECT OF THE PETITIONER'S PROPERTY.

EXHIBIT P4 TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, KASABA VILLAGE.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED NIL ISSUED BY THE SECRETARY OF KOZHIKODE CORPROATION.

EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 13.8.2015 IN WPC NO.23866/2015.

EXHIBIT P7 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 10.9.2015.

EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 15.10.2015 IN WPC NO.30607/2015.

EXHIBIT P9 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER BEFORE THIS HON'BLE COURT.

EXHIBIT P10 TRUE COPY OF THE REPORT OF THE KSREC. W.P.(C)No.13297 of 2019

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EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 27.8.2018 IN WPC NO.6760 /2016.

EXHIBIT P12 TRUE COPY OF THE COMMUNICATION ISSUED BY THE RESPONDENT TO THE PETITIONER BEARING NO.KKB/145/2019-20 DATED 9.4.2019.