NIYAS K.V. v. District Collector, Kozhikode and Revenue Divisional Officer, Kozhikode

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 WP(C) NO.10412 OF 2024`** ## **`PETITIONER:`** ``` NIYAS K.V, AGED 43 YEARS S/O.ABDULRAHIMAN, SHERAFEYIN (H), VELLAYIL, BEACH P.O., KOZHIKODE, PIN - 673032 ``` ``` BY ADVS. ANISH ANTONY ANATHAZHATH SUNILKUMAR M. ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR KOZHIKODE CIVIL STATION, KOZHIKODE, PIN - 673020`** ``` 2THE REVENUE DIVISIONAL OFFICER KOZHIKODE CIVIL STATION P.O KOZHIKODE, PIN - 673020 ``` ``` BY SMT.R.DEVISREE, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.10412 of 2024 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P3 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 2 Ares 18.93 Sq.Meters of land comprised in Sy.No.78/71 in Block No.1 of Chevayur Village, Kozhikode Taluk, Kozhikode District. ``` ``` 3. According to the petitioner, the aforesaid property will not come within the ambit of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for brevity, ‘the Act, 2008’). However, the property is wrongly ``` 3 W.P.(C) No.10412 of 2024 ``` included in the Data Bank as wetland. The petitioner filed Ext.P2 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.P3 order stating that the Village Officer has reported that there are five coconut trees and one arecanut tree in the subject land and the western side of the subject land is filled up in 3 meters width and the remaining portion is waterlogged and the land is seen not converted before 2008 and conversion will affect nearby cultivation and environment and has to be retained in the Data Bank. ``` 4 W.P.(C) No.10412 of 2024 ``` 4. The petitioner has filed this writ petition challenging Ext.P3 contending,inter 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. It is also contended that the RDO ought to have obtained a report from the Kerala State Remote Sensing and Environment Centre [for short, ‘the KSRSEC’] to ascertain the exact nature of the land as on 12.08.2008, the date of coming into force of the Act, 2008. ``` ``` 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) ``` W.P.(C) No.10412 of 2024 5 ``` 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 preparedbyCentral/StateScientific Technological Institutions and pass appropriate orders on the application. On a perusal of Ext.P3, it is evident that, the RDO has not conducted a direct inspection or verified the contents of Data Bank with KSRSEC report. 6. Wetland is defined under Section ``` W.P.(C) No.10412 of 2024 6 ## **`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 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 ``` W.P.(C) No.10412 of 2024 7 ``` 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 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 ``` W.P.(C) No.10412 of 2024 8 ``` 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." ``` ``` 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.P3 cannot be ``` W.P.(C) No.10412 of 2024 9 ``` sustained and I set aside the same with a direction to the 2[nd] respondent, the RDO, to reconsider Ext.P2 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 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. ``` W.P.(C) No.10412 of 2024 10 # **`The writ petition is disposed of with the above directions.`** ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/19/03/2024 ``` W.P.(C) No.10412 of 2024 11 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 Exhibit P2 Exhibit P3 ``` ``` A TRUE COPY OF DEED DATED 28.12.2020 ``` ``` A TRUE COPY OF THE APPLICATION DATED 16.07.2022 SUBMITTED BY THE PETITIONER A TRUE COPY OF THE ORDER DATED 12.12.2023 BY THE 2ND RESPONDENT ```