Kerala High Court
Bindu Somanath K.T. vs The District Collector on 8 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
WP(C) NO. 17733 OF 2020
PETITIONERS:
1 BINDU SOMANATH K.T. ,
AGED 49 YEARS
W/O. PRASAD, RESIDING AT SARASWATHI THONDAYAD,
NELLIKODE P.O, KOZHIKODE DISTRICT.
2 SINDHU SURESH,
W/O. SURESH, KALLADA HOUSE, HILL ROAD,
IRINJALAKUDA P.O, THRISSUR DISTRICT 680 121
BY ADVS.
G.HARIHARAN
SRI.PRAVEEN.H.
SMT.K.S.SMITHA
SRI.V.R.SANJEEV KUMAR
RESPONDENTS:
1 THE DISTRICT COLLECTOR,
KOZHIKODE 673 016
2 THE TAHSILDAR,
KOZHIKODE TALUK, KOZHKODE DISTRICT 673 016
3 THE VILLAGE OFFICER,
KOTOOLI , KUTHIRAVATTOM P.O,
KOZHIKODE DISTRICT 673 016
4 THE REVENUE DIVISIONAL OFFICER,
KOZHIKODE 673 016
5 THE AGRICULTURAL OFFICER,
KRISHI BHAVAN, PUTHIYARA,
KOZHIKODE DISTRICT 673 016
6 THE LOCAL LEVEL MONITORING COMMITTEE,
(CONSTITUTED UNDER THE KERALA CONSERVATION OF
PADDY LAND AND WET LAND ACT, 2008) RPERESENTED BY
ITS CONVENOR (THE AGRICULTURAL OFFICER, KRISHI
BHAVAN, PUTHIYARA, KZHIKODE, KOZHIKODE DISTRICT
673 016
WP(C) No.17733/2020
:2 :
7 KERALA STATE REMOTE SENSING AND ENVIRONMENT
CENTRE
1ST FLOOR, NEAR LEGISLATIVE ASSEMBLY, VIKAS
BHAVAN, UNIVERSITY OF KERALA SENATE HOUSE
CAMPUS, PMG, THIRUVANANTHAPURAM, KERALA 695 033,
REPRESENTED BY ITS DIRECTOR.
GOVT. PLEADER SRI MANU RAJ
ADV.SRI.S.VISHNU
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 08.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.17733/2020
:3 :
JUDGMENT
~~~~~~~~~
Dated this the 8th day of July, 2021
The petitioners, who are owners of 5.26 Ares of
land in Kotooli Village in Kozhikode Taluk, have filed this writ
petition seeking to quash Ext.P8 and to command the 6 th
respondent to reconsider the application mentioned in Ext.P3
in the light of Ext.P7 report from the Director, Kerala State
Remote Sensing and Environment Centre,
Thiruvananthapuram.
2. The petitioners purchased the property as per
Ext.P1 Settlement Deed in the year 2009. The property is
classified as 'Nilam' in the Settlement Deed. However, there
has been no paddy cultivation in the land for more than 40
years and the land has been converted into dry land long ago.
The petitioners therefore filed an application dated 20.08.2017
before the 6th respondent-Local Level Monitoring Committee
WP(C) No.17733/2020
seeking re-classification of land as dry land. The application
has been acknowledged as per Ext.P3.
3. The application acknowledged by Ext.P3 was not
considered for more than two years and the petitioners filed
WP(C) No.3537/2019 before this Court. This Court, as per
Ext.P4 judgment, directed that order shall be passed on the
application within a period of three months. Even after a
lapse of 3 to 6 months, no orders were passed. Hence, the
petitioners filed COC No.1911/2019. While the COC was
pending, the 1st respondent-District Collector passed Ext.P5
order on 16.10.2019 rejecting the request made by the
petitioners.
4. The petitioners then filed W.P.(C) No.27926/2019
challenging Ext.P5. This Court, as per Ext.P6 judgment,
directed the 6th respondent to reconsider the application
submitted by the petitioners and issue fresh orders, after
obtaining satellite images as well as reports from the
competent authorities. The 7th respondent-Kerala State
Remote Sensing and Environment Centre had sent Ext.P7
WP(C) No.17733/2020
report to the 1st respondent on 21.10.2019, wherein it was
reported that as per the toposheet of 1967, the plot in question
was observed under mixed vegetation/plantation/Tress with
the building/structures in 2007 data.
5. The 6th respondent, however, passed Ext.P8 order
on 22.11.2019 holding that though the report of the KSREC
would show that there are existing trees, the report does not
disclose the fact that water logging exists in the land. The 6 th
respondent stated that the members of the Committee are
convinced that the land in question is 4 feet below the normal
level and is waterlogged. On these premises, the members of
the 6th respondent-Committee decided not to remove the land
in question from the database.
6. The petitioners would contend that mere water
logging is not a sufficient reason to come to a conclusion that
the land in question is a paddy land or wet land. The 6 th
respondent miserably failed to appreciate Ext.P7 report given
by an expert body having technical knowledge in the field.
The reasoning given by the 6 th respondent is not sufficient to
WP(C) No.17733/2020
brush aside the findings contained in Ext.P7 report of the
Kerala State Remote Sensing and Environment Centre.
Ext.P8 is therefore highly arbitrary and is liable to be set aside,
contended the counsel for the petitioners.
7. I have heard the learned counsel for the petitioners
and the learned Government Pleader for respondents 1 to 6.
8. This Court, in Ext.P6 judgment in WP(C)
No.27926/2019, directed the 6th respondent to reconsider the
petitioners' application and to issue a fresh order after
following due procedure, including obtaining of the satellite
images as well as the reports from the competent authorities.
The Kerala State Remote Sensing and Environment Centre
which is a competent technical body has submitted Ext.P7
report stating that as per the toposheet of 1967, the plot was
observed as the plantation and settlement. The plot was so
observed in 2007 data also.
9. The 7th respondent further reported that a linear
feature represents road/construction was also observed to
align towards north to southern part of the plot. The same
WP(C) No.17733/2020
trend in land use practices was observed to be continued in
the data of subsequent years, in 2015 and 2019. From Ext.P7
report, it is evident that the plot of the petitioners was not used
as paddy land, nor was it wetland. However, the 7 th
respondent noted that at the time of inspection, water logging
was found in between the existing trees and the land in
question is low-lying land comparing to adjacent properties.
Since the 7th respondent did not notice these facts, the 6 th
respondent decided not to rely on Ext.P7 report to remove the
land of the petitioners from Data bank.
10. The 7th respondent-Kerala State Remote Sensing
and Environment Centre is a body of experts competent to
assess the nature of land, using technical tools including
satellite images. When such a body gives a report, such
report cannot be casually brushed aside by the 6 th
respondent-LLMC. The 6th respondent-LLMC decided to
ignore the report of the 7th respondent for the sole reason that
during their visit, water logging was found in between the
standing trees in the plot. This is not a sufficient reason to
WP(C) No.17733/2020
discard Ext.P7 report.
11. A Division Bench of this Court has held in the
judgment in Mather Nagar Residents Association v.
District Collector [2020 (2) KLT 192] that-
"Going by the definition of wetland, we are
of the view that, in order to treat a particular land
as wetland, it should have the characteristic
features and requirement as is provided under
Act, 2008. It is clear from the report submitted by
the Sub Collector before the Apex Court as well
as report of KSREC, the nodal agency of State
Government, that the properties in question is a
fallow land. Fallow land is never treated as
wetland in accordance with the provisions of Act,
2008. It is also significant to note that from the
definition of wetland under Act, 2008, paddy land
and rivers are excluded. The report submitted by
the KSREC is not disputed by the Residents
Association. Merely because the property is lying
fallow and water gets logged during rainy season
or otherwise due to the low lying nature of the
property, it cannot be termed as wetland or paddy
land in contemplation of Act, 2008. That apart on
a query made by us, counsel on either side
submitted that, the properties in question have
access from the National Highway from Kochi to
Coimbatore and by the side of Kochi Metro line,
which are also admittedly developed areas with
large number of residential, commercial and multi
utility buildings apart from various educational and
religious institutions, thus having no scope for any
paddy cultivation."
The afore judgment will apply to the facts of the petitioners'
case also.
WP(C) No.17733/2020
For all the aforesaid reasons, Ext.P8 decision of the
6th respondent cannot be sustained. Ext.P8 is therefore set
aside. The 6th respondent is directed to reconsider the
application of the petitioner acknowledged by Ext.P3, taking
into account Ext.P7 report of the 7th respondent and the
satellite photographs. Final decision in the matter should be
taken within a period of two months.
Sd/-
N. NAGARESH, JUDGE
aks/27.07.2021
WP(C) No.17733/2020
APPENDIX OF WP(C) 17733/2020
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE SETTLEMENT DEED NO.
927/2009 EXECUTED IN FAVOUR OF THE
PETITIONERS BY THEIR FATHER AND
BROTHER.
EXHIBIT P2 TRUE COPY OF THE LATEST BASIC TAX
RECEIPT DATED 25-07-2017 ISSUED IN THE
NAME OF THE PETITIONERS BY THE VILLAGE
OFFICER, KOTOOLI VILLAGE
EXHIBIT P3 TRUE COPY OF THE ACKNOWLEDGEMENT DATED
23-08-2017 ISSUED BY THE CONVENER OF
THE 6TH RESPONDENT ON 23-08-2017
EXHIBIT P4 TRUE COPY OF THE JUDGMENT MADE IN
W.P(C) NO. 3537/2019 PASSED BY THE
HON'BLE HIGH COURT OF KERALA ON 28-02-
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 16-10-2019
ISSUED BY THE 6TH RESPONDENT
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 23-10-
2019 MADE BY THIS HON'BLE COURT IN
W.P(C) NO. 27926/2019
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED
21-10-2019 SEND BY KERALA STATE REMOTE
SENSING AND ENVIRONMENT CENTRE,
THIRUVANANTHAPURAM ADDRESSED TO THE 1ST
RESPONDENT
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 18-11-2019
PASSED BY THE 5TH RESPONDENT
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 11-08-
2020 PASSED BY THIS HON'BLE COURT IN
COC NO. 586/2020
EXHIBIT P10 TRUE COPY OF THE REPORT DATED
21.10.2019 PASSED BY THE 7TH RESPONDENT
KSREC.
