P. V. Ali Mubaraq v. Local Level Monitoring Committee for Kozhikode Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** ## **WP(C).No.13297 OF 2019(J)** ## **PETITIONER:** **P.V. ALI MUBARAQ, AGED 50 YEARS S/O ALAVIKUTTY, PEE VEE HOUSE, NILAMBUR P.O., MALAPPURAM DISTRICT, 679 330.** **BY ADV. SRI.BINOY VASUDEVAN** ## **RESPONDENT:** **THE LOCAL LEVEL MONITORING COMMITTEE FOR KOZHIKODE CORPORATION, REPRESENTED BY ITS CONVENER, THE PRINCIPAL AGRICULTURAL OFFICER/AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN, PUTHIYARA, KOZHIKODE-673 004.** ## **OTHER PRESENT:** **GP. K.J.MANURAJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.13297 of 2019 ..2.. ## **W.P.(C)No.13297 of 2019** ## **-----------------------------------------------** ## **JUDGMENT** Petitioner is the Director of a company holding a land measuring 2.05 acres in Resurvey Nos.989/1 and 989/2 of Kasaba Village in Kozhikode Taluk. The said land is situated within the limits of the Kozhikode Corporation. The petitioner has applied to the Corporation for a building permit for putting up a commercial building on the land. The application of the petitioner was however rejected by the Corporation as per Ext.P5 communication. The petitioner challenged Ext.P5 communication before this Court in W.P.(C) No.23866 of 2015. As per Ext.P6 judgment, this Court set aside Ext.P5 communication and directed reconsideration of the application. It is stated by the petitioner that the direction in Ext.P6 W.P.(C)No.13297 of 2019 ..3.. judgment has not been complied with by the Corporation since it is found in the meanwhile that the land is included as 'wetland' in the data bank prepared under the Kerala Conversation of Paddy Land and Wetland Act, 2008 (the Act). The petitioner, thereupon, preferred an application before the respondent for removal of the land from the data bank. The respondent has rejected the application as per order dated 25.01.2016 stating that the land is a wetland and therefore, the same cannot be removed from the data bank. The petitioner challenged the order of the respondent dated 25.01.2016 before this Court in W.P.(C)No.6760 of 2016. In the said writ petition, the petitioner has applied for appointment of an Advocate Commissioner to ascertain and report the nature of the land. An Advocate Commissioner was appointed in the said proceedings. Ext.P9 is the report of the Advocate Commissioner. W.P.(C) No.6760 of 2016 was disposed of by this Court directing the respondent to consider the application of the petitioner for removal of the land from the data bank W.P.(C)No.13297 of 2019 ..4.. afresh, having regard to the report of the Advocate Commissioner as also the report of the Kerala State Remote Sensing and Environment Centre (KSREC) obtained by the petitioner which was part of the records in the said case. Ext.P11 is the judgment in the said case. Pursuant Ext.P11 judgment, the respondent considered the application of the petitioner and passed Ext.P12 order rejecting the application again. Ext.P12 order is under challenge in the writ petition. The case set out by the petitioner in the writ petition is that the land is not one conforming to the definition of 'wetland' in the Act. 2. A report has been filed in this matter by the Convenor of the respondent justifying Ext.P12 communication. The objections raised to Ext.P9 report of the Advocate Commissioner in W.P.(C) No.6760 of 2016 was also made available. 3. Heard the learned counsel for the petitioner as also the learned Government Pleader. W.P.(C)No.13297 of 2019 ..5.. 4. The short question that falls for consideration in the matter is whether the respondent is justified in including the land of the petitioner as 'wetland' in the data bank prepared under the Act. 'Wetland' is defined in the Act thus: “"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”. In **Asma v. The District Collector** , 2015 (1) KLT 30, having regard to the definition aforesaid, this Court held that wetlands brought under the purview of the Act are natural lands lying between terrestrial and aquatic systems. In **Suraj v. State of Kerala** , 2018 (1) KLT 1, this Court clarified further that if one understands the scope of the definition in the context of the Act, it could be inferred that the word 'systems' contained in the definition refers to 'ecosystems' and therefore, only natural W.P.(C)No.13297 of 2019 ..6.. land lying between terrestrial ecosystems and aquatic ecosystems could be treated as 'wetland' under the Act. The respondent has no case that the land involved in this matter is a land lying between terrestrial ecosystems and aquatic ecosystems. 5. Further, Sub-rule (2) of Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules provides for the procedure for inclusion of a land as 'wetland' or 'paddy land' in the data bank. The said Rule reads thus: “(2) (1)_Þ¢ ©ÉºGdɵÞø¢ ÈßÜÕßÜáU µc×ßçÏÞ·cÎÞÏ æÈWÕÏÜáµ{áç¿ÏᢠÄHàVJ¿B{áç¿ÏᢠÕßÖÆÕßÕøB{¿BßÏ çÁxÞÌÞCí ÄÏîÞùÞAáKÄßçÜAí ÄÞæÝMùÏáK È¿É¿ßdµÎ¢ ÉÞÜßçAIÄÞÃí, ¥ÏÄí:_ (®) ØÎßÄßAí ¥ÇßµÞøßÄÏáU dÉçÆÖæJ ÈßÜÕßÜáU ùÕÈcá ùßAÞVÁáµZ dɵÞø¢ µc×ßçÏÞ·cÎÞÏ æÈWÕÏÜÞÏß çø¶æM¿áJßÏßGáU ÍâÎßÏáæ¿ ÕßÖÆÞ¢ÖBZ ÌtæMG ÕßçÜï¼í ³ËàØV ÌtæMG µc×ß ³ËàØVAí ÈWçµIÄᢠ§Äßæa ¥¿ßØíÅÞÈJßW µc×ß ³ËàØV, ³çøÞ ØíÅÜÕᢠÉøßçÖÞÇߺîí dÉØñáÄØíÅÜ¢ §çMÞZ æÈWµc×ßAí ¥ÈáçÏÞ¼cÎÞÏ æÈW ÕÏW ¦çÃÞæÏKí ÉøßçÖÞÇߺîᢠÄHàVJ¿Bæ{ Ø¢Ìtߺî ùÕÈcá ùßAÞVÁáµ{áæ¿ ¥¿ßØíÅÞÈJßW ÕßçÜï¼í ³ËàØV ..7.. ## W.P.(C)No.13297 of 2019 ØíÅÜÉøßçÖÞÇÈ È¿JßÏᢠçÌÞicæMç¿IÄᢠ¥dɵÞø¢ ÉøßçÖÞÇÈ È¿Jß çÌÞicæMG ÕßÕøB{âæ¿ ¥¿ßØíÅÞÈJßW, µc×ß ³ËàØùᢠÕßçÜï¼í ³ËàØùᢠµâ¿ß æÈWÕÏÜáµ{áæ¿ÏᢠÄHàVJ¿B {áæ¿Ïᢠ²øá µø¿í çÁxÞÌÞCí ÄÏîÞùÞAß ØÎßÄßÏáæ¿ Éøß·ÃÈÏíAí ØÎVMßçAIÄáÎÞÃí. (Ìß) (®) ¶mdɵÞø¢ ÜÍßºî µø¿í çÁxÞÌÞCí ØÎßÄß ÉøßçÖÞÇßçAIÄᢠ¦ÕÖcæÎCßW, ÏáµñÎÞÏ ÄßøáJÜáµZ ÕøáçJIÄáÎÞÃí. ØÎßÄßÏáæ¿ ¥ÇßµÞøÉøßÇßAáUßæÜ æÈWÕÏÜáµ{áç¿ÏᢠÄHàVJ¿B{áæ¿ÏᢠdÉØñáÄ µø¿í çÁxÞÌÞCí, ÈÞ×ÃW ùßçÎÞVGí æØXØßBí ¯¼ÈßØßçÏÞ, Ø ¢ØíÅÞÈ ÍâÕßÈßçÏÞ· çÌÞVçÁÞ, ÍìÎÖÞdØñ ÉÀÈçµdwçÎÞ (CESS), §XçËÞVçÎ×X çµø{Þ Îß×çÈÞ (IKM), ÎçxæÄCßÜᢠçµdw/Ø¢ØíÅÞÈ ÖÞdØñ ØÞçCÄßµØíÅÞÉÈçÎÞ, ©Éd·ÙºßdÄB{áæ¿ ¥¿ßØíÅÞÈJßW ÄÏîÞùÞAßÏßGáU ÍâÉ¿Jßæa ØÙÞÏçJÞæ¿ ÉøßçÖÞÇߺîí ¥LßÎøâÉ¢ ÈWµß ØÎßÄß ¥¢·àµøßçAIÄÞÃí. ®KÞW ¨ ©ÉºGdɵÞø¢ µø¿í çÁxÞÌÞCí ÄÏîÞùÞAáçOÞZ ©Éd·ÙJßæa ¥¿ßØíÅÞÈJßW ¯xÕᢠ¥ÕØÞÈ¢ ÄÏîÞùÞAßÏ çÁxÞÌÞCí ¦ÏßøßAâ ¥ÕÜ ¢ÌßçAIÄí. ” It is evident from the extracted Rule that the statute does not contemplate inclusion of any land which is not shown as 'wetland' in the revenue records as 'wetland' in the data bank W.P.(C)No.13297 of 2019 ..8.. prepared under the Act. In the report filed by the Convenor of the respondent, it is admitted that the land referred to in the writ petition is one classified in the revenue records as 'unoccupied dry land'. A land which is classified in the revenue records as dry land, according to me, cannot be included as wetland in the data bank prepared under the Act. 6. That apart, it is stated in the impugned order that there exists a marshy land with mangroves on the northern side of the land involved in this matter and there is a stream through the southern side of the land. It is also stated in the impugned order that in the report of the KSREC, the land is shown as a fallow one with mixed vegetation. A reading of Ext.P12 order would indicate that it is on account of the said reasons that the respondent chose to include the land as wetland in the data bank. As noted, the respondent has no case that the land was a paddy land. In **Mather Nagar Residents Association v. District Collector** , 2020(2) KLT 192, a Division Bench of this court held that merely for the W.P.(C)No.13297 of 2019 **==> picture [20 x 9] intentionally omitted <==** reason that a land was lying fallow and water gets accumulated in the land during rainy season, the same cannot be included as 'wetland' in the data bank. Further, existence of a stream on one side of the land and a marshy land on the other side of the land are not reasons sufficient to include the land as 'wetland' in the data bank. In the result, the writ petition is allowed. Ext.P12 communication is set aside and the respondent is directed to exclude the land of the petitioner from the data bank. **Sd/P.B.SURESH KUMAR, JUDGE** rkj/ds 19.02.2021 W.P.(C)No.13297 of 2019 ..10.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF DOCUMENT NO.1196/1/1994 OF S.R.O, KOZHIKODE. EXHIBIT P2 TRUE COPY OF DOCUMENT NO.1185/1/1994 OF S.R.O, KOZHIKODE.** **EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE IN RESPECT OF THE PETITIONER'S PROPERTY.** **EXHIBIT P4 TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, KASABA VILLAGE.** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED NIL ISSUED BY THE SECRETARY OF KOZHIKODE CORPROATION.** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 13.8.2015 IN WPC NO.23866/2015. EXHIBIT P7 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 10.9.2015. EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 15.10.2015 IN WPC NO.30607/2015.** **EXHIBIT P9 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER BEFORE THIS HON'BLE COURT. EXHIBIT P10 TRUE COPY OF THE REPORT OF THE KSREC.** W.P.(C)No.13297 of 2019 ..11.. **EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 27.8.2018 IN WPC NO.6760 /2016. EXHIBIT P12 TRUE COPY OF THE COMMUNICATION ISSUED BY THE RESPONDENT TO THE PETITIONER BEARING NO.KKB/145/2019-20 DATED 9.4.2019.**