Kerala High Court
Radhakrishnan vs State Of Kerala on 24 October, 2024
WP(C) NO.323 OF 2024
& Connected cases 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA,
1946
WP(C) NO. 397 OF 2024
PETITIONER:
RADHAKRISHNAN, AGED 71 YEARS
S/O GOPALAN NAIR, RESIDING AT AKSHAYA,
VELLIPARAMBA, KOZHIKODE, PIN - 673008
BY ADV UNNI. K.K. (EZHUMATTOOR)
RESPONDENTS:
STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE
1 DEPARTMENT, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
DISTRICT COLLECTOR, CIVIL STATION, ERANHIPALAM,
2 KOZHIKODE,, PIN - 673020
REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICE, CIVIL STATION,
3
KOZHIKODE, PIN - 673020
LOCAL LEVEL MONITORING COMMITTEE,
REPRESENTED BY ITS CONVENER AGRICULTURAL
OFFICER, PERUVAYAL GRAMA PANCHAYATH,
4
POOVATTUPARAMBA P.O , KOZHIKODE DISTRICT, PIN -
673008
VILLAGE OFFICER,
5 VILLAGE OFFICE, KUTTIKKATTOR, KOZHIKODE, PIN -
673008
OTHER PRESENT:
SMT.PREETHA K.K., SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 24.10.2024, ALONG WITH WP(C).323/2024, 414/2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO.323 OF 2024
& Connected cases
2
2024:KER:79445
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
WP(C) NO. 323 OF 2024
PETITIONER:
RAGHINI K,
AGED 64 YEARS
W/O RADHAKRISHNAN, RESIDING AT AKSHAYA,
VELLIPARAMBA, KOZHIKODE, PIN - 673008
BY ADV UNNI. K.K. (EZHUMATTOOR)
RESPONDENTS:
STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE
1 DEPARTMENT, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
DISTRICT COLLECTOR,
CIVIL STATION, ERANHIPALAM, KOZHIKODE, PIN -
2
673020
REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICE,CIVIL STATION,
3
KOZHIKODE, PIN - 673020
LOCAL LEVEL MONITORING COMMITTEE,
REPRESENTED BY ITS CONVENER,AGRICULTURAL
OFFICER,PERUVAYAL GRAMA
4
PANCHAYATH,POOVATTUPARAMBA P.O , KOZHIKODE
DISTRICT, PIN - 673008
VILLAGE OFFICER,
VILLAGE OFFICE, KUTTIKKATTOR,KOZHIKODE, PIN -
5
673008
OTHER PRESENT:
SMT.PREETHA K.K., SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 24.10.2024, ALONG WITH WP(C).397/2024 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO.323 OF 2024
& Connected cases
3
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
WP(C) NO. 414 OF 2024
PETITIONER:
AISWARYA RAJ,
AGED 35 YEARS
D/O GOVIND RAJ RESIDING AT SREE GOVINDHAM,
PANTHEERAMKAVU, KOZHIKODE, PIN - 673019
BY ADV UNNI. K.K. (EZHUMATTOOR)
RESPONDENTS:
STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT REVENUE
1 DEPARTMENT, GOVT. SECRETARIAT THIRUVANANTHAPURAM,
PIN - 695001
DISTRICT COLLECTOR,
CIVIL STATION, ERANHIPALAM KOZHIKODE, PIN -
2
673020
REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICER, CIVIL STATION,
3
KOZHIKODE, PIN - 673020
LOCAL LEVEL MONITORING COMMITTEE,
REPRESENTED BY ITS CONVENER AGRICULTURAL OFFICER,
4 PERUVAYAL GRAMA PANCHAYATH, POOVATTUPARAMBA P.O,
KOZHIKODE DISTRICT, PIN - 673008
VILLAGE OFFICER,
VILLAGE OFFICE, KUTTIKKATTOR, KOZHIKODE, PIN -
5
673008
OTHER PRESENT:
SMT.PREETHA K.K., SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 24.10.2024, ALONG WITH WP(C).397/2024 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO.323 OF 2024
& Connected cases
4
2024:KER:79445
MOHAMMED NIAS C.P., J
............................................................
[WP(C) Nos.323/2024, 397/2024, and 414/2024]
.............................................................
Dated this the 24th day of October 2024
JUDGMENT
These writ petitions are filed by the husband, wife and
daughter-in-law, who are stated to be the owners of 1.829 Ares of
land in Sy. No.50/31 (50/2 as per BTR), 2 Ares of land in Sy.
No.50/30 (50/2 as per BTR) and 2 Ares of land in Sy. No.50/32 (50/2
as per BTR) of Kuttikkattur Village, Kozhikode Taluk respectively.
They are aggrieved by the rejection of the application filed under
Form 5 of the Kerala Conservation of Paddy Land and Wetland Act
and Rules, 2008.
2. Earlier the petitioners' applications were
rejected through Ext.P6 order dated 17.11.2022, 24.11.2022 and
26.12.2022 respectively which were challenged by the petitioners
by filing W.P.(C.)No.4447/2023, W.P.(C.)No.4597/2023 and W.P.
(C.)No.4531 of 2023 respectively. There is a finding that the
petitioners' properties were fully converted with trees aged more
than 30-35 years and therefore, the description of the property as a
WP(C) NO.323 OF 2024
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wetland was unsustainable. This Court found that the relevant
consideration for inclusion of the property as a Paddy Land or
Wetland is as to the nature of the property as on the date of
coming into force of the Act in 2008 and the same was not
considered. Moreover, the KSREC report was not considered.
Accordingly, the orders impugned in that writ petition were
quashed directing a reconsideration.
3. In compliance with the directions, Ext.P9 orders
were passed again rejecting the application. Finding that the
properties are waterlogged, lying at a road level, and that the
property did not have buildings which according to the Revenue
Divisional Officer makes the property a wetland coming under the
ambit of the Act.
4. A statement has been filed on behalf of the
Government wherein it is stated that the Village Officer has
reported that there are few coconut trees of nearly 25 years of age
existing on the land and that the land is still a wetland with soil
saturated with water and excluding such land will affect the water
table of the surrounding land and the ecosystem. However, it is
stated that the petitioner's land is not suitable for paddy
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cultivation, but this land in question remains a wetland. The
KSREC report dated 17.08.2023 shows that the land is observed as
paddy land. At the outset, it has to be mentioned that the KSREC
report relied on by the respondents shows that the properties are
paddy land. While the finding in the impugned order and which is
stated in the counter, shows that the land must be treated as a
wetland, the definition of wetland in the Act reads as follows:
"2.(xviii)"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 ;"
5. It is clear from the definition that the wetland
does not include the paddy lands and rivers. The finding in the
KSREC report and the impugned order, are clearly contradictory to
each other. Ext.P1 tax receipt also shows that the property is
stated as 'nanja'. The mere fact that a property is lying at a lower
level or gets waterlogged during rain cannot be a reason to include
WP(C) NO.323 OF 2024
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the same as either a paddy land or a wetland. In the instant case,
the respondents are not even sure as to whether the properties are
paddy land or wetland.
6. Under such circumstances, the impugned orders
cannot be sustained and they are quashed. There will be a
direction to the 3rd respondent, Revenue Divisional Officer or the
Authorised Officer under Section 2(XVA) of the Act, to reconsider
the Form 5 application submitted by the petitioner strictly in
terms of the Act and Rules, taking note of the report of the KSREC
and the report of the Village Officer and also the principles of laid
down by this Court in judgment in Mather Nagar Residence
Association v. District Collector [2020 (2) KLT 192] and Jessy
Abraham v. The Land Revenue Commissioner, Thiruvananthapuram
[2021 (6) KHC 316]. Fresh orders shall be passed after
reconsideration, within three months from the date of receipt of a
copy of this judgment.
The writ petition is allowed as above.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
Anu
WP(C) NO.323 OF 2024
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2024:KER:79445
APPENDIX OF WP(C) 323/2024
PETITIONER EXHIBITS
TRUE COPY OF THE TAX RECEIPT DATED
27.6.2022 ISSUED BY THE VILLAGE
EXHIBIT P1
OFFICER, KUTTIKKATTUR VILLAGE
TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 31.01.2023 ISSUED BY THE VILLAGE
EXHIBIT P2
OFFICER KUTTIKKATTUR VILLAGE
TRUE COPY OF THE SALE DEED NO. 453/2018
EXHIBIT P3 DATED 14.2.2018 OF SRO MAVOOR
TRUE COPIES OF THE PHOTOGRAPHS SHOWING
EXHIBIT P4 THE NATURE OF THE LAND
TRUE COPY OF THE APPLICATION DATED
EXHIBIT P5 23.2.2021
TRUE COPY OF THE ORDER DATED 24.11.2022
EXHIBIT P6 OF THE 3RD RESPONDENT
TRUE COPY OF THE COMMON JUDGEMENT DATED
EXHIBIT P7 28.3.2023 IN W.P[C]NO.4597/2023
TRUE COPY OF THE REPORT DATED 17.8.2023
EXHIBIT P8 OF KSRSEC
TRUE COPY OF THE ORDER DATED 6.12.2023
EXHIBIT P9 OF THE 3RD RESPONDENT
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APPENDIX OF WP(C) 414/2024
PETITIONER EXHIBITS
TRUE COPY OF THE TAX RECEIPT DATED
27.6.2022 ISSUED BY THE VILLAGE
EXHIBIT P1
OFFICER, KUTTIKKATTUR VILLAGE
TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 31.1.2023 ISSUED BY THE VILLAGE
EXHIBIT P2
OFFICER KUTTIKKATTUR VILLAGE
TRUE COPY OF THE SALE DEED NO.
EXHIBIT P3 1343/2018 DATED 8.5.2018 OF SRO MAVOOR
TRUE COPIES OF THE PHOTOGRAPHS SHOWING
EXHIBIT P4 THE NATURE OF THE LAND
TRUE COPY OF THE APPLICATION DATED
EXHIBIT P5 23.2.2021
TRUE COPY OF THE ORDER DATED 26.12.2022
EXHIBIT P6 OF THE 3RD RESPONDENT
TRUE COPY OF THE COMMON JUDGEMENT DATED
EXHIBIT P7 28.3.2023 IN W.P[C]NO.4531/2023
TRUE COPY OF THE REPORT DATED 17.8.2023
EXHIBIT P8 OF KSRSEC
TRUE COPY OF THE ORDER DATED 6.12.2023
EXHIBIT P9 OF THE 3RD RESPONDENT
WP(C) NO.323 OF 2024
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APPENDIX OF WP(C) 397/2024
PETITIONER EXHIBITS
TRUE COPY OF THE TAX RECEIPT DATED
27.6.2022 ISSUED BY THE VILLAGE
EXHIBIT P1
OFFICER, KUTTIKKATTUR VILLAGE
TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 31.01.2023 ISSUED BY THE VILLAGE
EXHIBIT P2
OFFICER KUTTIKKATTUR VILLAGE
TRUE COPY OF THE SALE DEED NO.
EXHIBIT P3 1957/2018 DATED 19.7.2018 OF SRO MAVOOR
TRUE COPIES OF THE PHOTOGRAPHS SHOWING
EXHIBIT P4 THE NATURE OF THE LAND
TRUE COPY OF THE APPLICATION DATED NIL
EXHIBIT P5
TRUE COPY OF THE ORDER DATED 17.11.2022
EXHIBIT P6 OF THE 3RD RESPONDENT
TRUE COPY OF THE COMMON JUDGEMENT DATED
EXHIBIT P7 28.3.2023 IN W.P[C]NO.4447/2023
TRUE COPY OF THE REPORT DATED 17.8.2023
EXHIBIT P8 OF KSRSEC
TRUE COPY OF THE ORDER DATED 6.12.2023
EXHIBIT P9 OF THE 3RD RESPONDENT
