Bindu Somanath K.T. and Sindhu Suresh v. District Collector, Kozhikode and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 8[TH] 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 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 8[th] 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 6[th] respondent-Local Level Monitoring Committee WP(C) No.17733/2020 : 4 : 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 1[st] 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 6[th] 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 7[th] respondent-Kerala State Remote Sensing and Environment Centre had sent Ext.P7 WP(C) No.17733/2020 : 5 : report to the 1[st] 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 6[th] 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 6[th] 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 : 6 : 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 6[th] 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 7[th] 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 : 7 : 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 7[th] 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 7[th] 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 6[th] respondent-LLMC decided to ignore the report of the 7[th] 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 : 8 : 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 : 9 : For all the aforesaid reasons, Ext.P8 decision of the 6[th] respondent cannot be sustained. Ext.P8 is therefore set aside. The 6[th] respondent is directed to reconsider the application of the petitioner acknowledged by Ext.P3, taking into account Ext.P7 report of the 7[th] 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 : 10 : ## **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 28-022019** - **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 16-10-2019 ISSUED BY THE 6TH RESPONDENT** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 23-102019 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 11-082020 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.**