George Thomas v. District Collector, Ernakulam; Revenue Divisional Officer, Fort Kochi; Local Level Monitoring Committee, Kumbalam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 ``` ## **`WP(C) NO.11086 OF 2024`** ## **`PETITIONER:`** ``` GEORGE THOMAS, AGED 51 YEARS SON OF DAVID THOMAS, GALEELAYIL HOUSE, PIPELINE ROAD, PALARIVATTOM, ERNAKULAM DISTRICT, PIN - 682025 ``` ``` BY ADVS. PEEYUS A.KOTTAM RAGESH CHAND R.G. ISSAC ALEXANDER ``` ## **`RESPONDENTS:`** - **`1 DISTRICT COLLECTOR, ERNAKULAM COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT, PIN - 682030`** - **`2 REVENUE DIVISIONAL OFFICER, FORT KOCHI KB JACOB ROAD, FORT KOCHI, KOCHI, KERALA, PIN - 682001`** - **`3 LOCAL LEVEL MONITORING COMMITTEE, KUMBALAM REPRESENTED BY THE PRINCIPAL AGRICULTURAL OFFICER, KRISHI BHAVAN, KUMBALAM, ERNAKULAM, PIN - 682506`** ## **`BY SRI.R.DEVISREE, GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.11086 of 2024 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P7 order whereby Form 5 application submitted by him has been rejected by the 2[nd] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of 21.70 Ares of land comprised in Sy.Nos.189/4-2 and 190/2-2 in Block No.15 of Kumbalam Village, Kanayannur Taluk, Ernakulam District. ``` ``` 3. According to the petitioner, the aforesaid property is lying in between the National Highway and railway line and converted 30 years back and will not come within the ambit of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and ``` W.P.(C) No.11086 of 2024 3 **`Wetland Act, 2008 (for brevity, ‘the Act, 2008’). However, the property is wrongly included in the Data Bank as paddy land. The petitioner filed Ext.P3 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 [for brevity, ‘the Rules, 2008’] before the RDO to remove the said land from the Data Bank. The same has been rejected by the RDO vide Ext.P7 order stating that the Agricultural Officer has reported that there is flow of water [`** നീരൊഴുക **`] through the property and the property is having the characteristics of wetland and the Local Level Monitoring Committee has recommended to retain the land in the Data Bank.`** ``` 4. The petitioner has filed this writ petition challenging Ext.P7 contending,inter ``` W.P.(C) No.11086 of 2024 4 ``` alia, that the same is vitiated by non application of mind and is against the provisions of the Act, 2008 and the binding precedents of this Court. ``` ``` 5. The relevant consideration for inclusion of a property as paddy land or wetland is as to the nature of the property as on the date of coming into force of the Act, 2008. Rule 4(4E) of the Rules, 2008 provides that, on receipt of the application in Form 5, the RDO shall call for a report from the Agricultural Officer in the case of paddy land and that of the Village Officer in the case of wetland. Rule 4(4F) provides that, on receipt of the report as above, the RDO shall, if deems necessary, verify the contents of the Data Bank by direct inspection or with the help of satellite images ``` W.P.(C) No.11086 of 2024 5 ``` preparedbyCentral/StateScientific Technological Institutions and pass appropriate orders on the application. On a perusal of Ext.P7, it is evident that, the RDO has not considered the relevant factors while considering the Form 5 application and merely relied on the report of the Agricultural Officer. ``` ``` 6. Wetland is defined under Section 2(xviii) of the Act, 2008 and reads as under: ``` ``` “(xviii) ‘wet land’ 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 ``` W.P.(C) No.11086 of 2024 6 ``` marsh and swamp forests but does not include paddy lands and rivers’. ``` ``` In order to treat a particular land as wetland, it should have the characteristic features and requirement as is provided under Act, 2008. This Court, inSuraj K.S. and Another v. State of Kerala and Others [2018 (1) KHC 250], relying on the decision in Asma v. District Collector [2015 (1) KLT 30], held that the wetlands brought under the purview of the Act, 2008 are natural lands lying between terrestrial and aquatic systems and only natural lands lying between terrestrial ecosystems and aquatic ecosystems in the State would fall within the ambit of the definition. 7. InMather Nagar Residents Association and Another v. District Collector, Ernakulam ``` W.P.(C) No.11086 of 2024 7 ## _**`and Others [2020 (2) KLT 192]`**_ **`, a Division Bench`** ## **`of this Court held as follows:`** ``` “22. Going by the definition of wetland, we are of the view that, in order to treat a particular land as wetland,itshouldhavethe characteristic features and requirement as is provided under the 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 ``` W.P.(C) No.11086 of 2024 8 ``` 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." ``` ``` 8. None of the parameters for consideration of a Form 5 application has been taken into consideration while passing the impugned order. Accordingly, I find that Ext.P7 order cannot be sustained and I set aside the same with a direction to the 2[nd] respondent, the RDO, to reconsider Ext.P3 application in Form 5, in accordance with law, and take a decision after considering the KSRSEC report obtained at the expense of the petitioner, and other relevant factors mentioned in Rule 4(4F), within a period of two months from the date of receipt of a copy of the report of the KSRSEC. The ``` W.P.(C) No.11086 of 2024 9 ``` petitioner shall apply for KSRSEC report before the Agricultural Officer within a period of two weeks from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition along with a copy of the judgment before the 2[nd] respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/21/03/2024 ``` W.P.(C) No.11086 of 2024 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ## **`Exhibit P1`** ``` TRUE COPY OF THE TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX FOR THE AFORESAID PROPERTY FOR THE YEAR 2023-24 ``` ``` Exhibit P2TRUE COPY OF THE DATA BANK PERTAINING TO THE PETITIONER'S PROPERTY ``` - **`Exhibit P3`** ``` TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER THROUGH AKSHAYA DATED 26.11.2022 ``` - **`Exhibit P4 THE TRUE COPY OF THE JUDGMENT IN W.P. (C) 23027/2023 DATED 19.07.2023`** - **`Exhibit P5 THE TRUE PHOTOGRAPHS SHOWING THE LIE AND NATURE OF THE PETITIONER'S PROPERTY`** - **`Exhibit P6 PHOTOGRAPHS SHOWING THE ADJACENT PROPERTY OF THE PETITIONER THERE IS A MULTI-STORIED BUILDING`** - **`Exhibit P7 THE TRUE COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER DATED 01.03.2024`** - **`Exhibit P8 THE TRUE COPY OF THE JUDGMENT OF THE DIVISION BENCH REPORTED IN 2020 (2) KHC 94 (MATHER NAGAR RESIDENTS ASSOCIATION AND ANOTHER VS. DISTRICT COLLECTOR, ERNAKULAM)`**