P.C. KuriaKose and P.C. Cherian v. Local Level Monitoring Committee, Aroor, Cherthala Taluk; District Collector, Alappuzha; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 24TH DAY OF AUGUST 2020 / 2ND BHADRA, 1942** ## **WP(C).No.16306 OF 2020(K)** ## **PETITIONERS:** |**1**||**P.C.KURIAKOSE, AGED 56 YEARS,**| |---|---|---| |||**S/O. P.T CHERIAN, PALATHARA HOUSE, H.NO. X/773,**| |||**PUNALUR P.O,. CHEMMANNUR DESOM,**| |||**PATHANAPURAM TALUK, KOLLAM 691 305**| |**2**||**P.C CHERIAN, AGED 52 YEARS,**| |||**S/O. P.T CHERIAN, PALATHARA HOUSE,**| |||**THOTTAPPALLY, TEMPLE ROAD, EZHUPUNNA,**| |||**CHERTHALA, ALAPPUZHA 688 537**| |||**BY ADV. SRI.JOBY CYRIAC**| |**RESPONDENTS**<br>**:**||| |**1**||**LOCAL LEVEL MONITORING COMMITTEE,**| |||**AROOR, CHERTHALA VILLAGE, CHERTHALA TALUK,**| |||**REPRESENTED BY THE AGRICULTURAL OFFICER,**| |||**AROOR VILLAGE, CHERTHALA, ALAPPUZHA 688 034**| |**2**||**THE DISTRICT COLLECTOR, ALAPPUZHA 688 001**| |**3**||**STATE OF KERALA,**| |||**REPRESENTED BY THE SECRETARY, DEPARTMENT OF**| |||**AGRICULTURE, THIRUVANANTHAPURAM, PIN 695 001**| |||**SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------W.P. © No. 16306 of 2020 --------------------------------------Dated this the 24[th] day of August, 2020 ## J U D G M E N T The prayers in the above Writ Petition (civil) are as follows: “ _1. Issue a writ of mandamus or any other appropriate writ, order directing the 1[st] respondent to exclude the properties covered by Ext.P1(a) from its Exhibit P4 draft data bank of Aroor Village, Cherthala Thaluk._ _2. Issue a writ of certiorari or any other appropriate writ, order calling for the original records leading to Exhibit P8 and quash the same._ _3. Issue a writ of certiorari or any other appropriate writ, order calling for the original records leading to Exhibit P9 & P10 orders and quash the same._ _4. Issue such other order as is deemed fit, just and proper to safeguard the best interest of the petitioner in the circumstance of the case.”_ 2. Heard Sri.Joby Cyriac, learned counsel appearing for the petitioners and Sri.Saigi Jacob Palatty, learned Senior Government pleader appearing for the respondents. 3. Aggrieved by the inclusion of the petitioner’s property as “wetland” in the draft data bank prepared by the 1[st] respondent LLMC, the petitioner has filed the requisite application for exclusion of subject property from the land data bank. According to the petitioner, the subject property was originally a wetland which has been converted as garden land/purayidam long prior to 12.8.2008 (date of coming into W.P. © No. 16306/2020 ..3.. force of the Kerala Conservation of Paddy Land and Wetland Act 2008) . Further that, it is now well settled that a property which would fulfill the definition of wetland as per Section 2(xviii) of the said act can never fulfill the definition of paddy land as per Section 2(xii) of the said Act and vice versa. (See _**Suraj K.S. & Anr. v. State of Kerala & Ors. [2018 (1) KHC 250]**_ ). 4. Further that now, Ext.P-7 is the report dated 24.1.2020 submitted by the Director of the Kerala State Remote Sensing and Environment Centre(KSREC), Thiruvananthapuram, along with satellite pictures and expert opinion, stating that the subject property was initially a converted land, and has been converted prior to the 2008 Act, etc. Now, the petitioner is aggrieved by the impugned decision of the 1[st] respondent LLMC as communicated to him as per Ext.P-8 dated 3.7.2020 issued by the ex-officio convener of the said LLMC stating that the request of the petitioner for exclusion of subject property included in the data bank as wetland cannot be acceded to in view of Ext.P-7 KSREC report and on the basis of inspection of property, etc 5. The petitioner would point out that a reading of impugned Ext.P-8 proceedings would make it clear that, the W.P. © No. 16306/2020 ..4.. 1[st] respondent LLMC has not taken properly into consideration the impact of Ext.P-7 report of the KSREC. Further that, the Division Bench of this Court in the case in _**Mather Nagar Residents Association & Anr. v. District Collector, EKM & Ors. [2020(2) KHC 94 (DB)]**_ has held that fallow land is never treated as wet land in accordance with the provisions of the 2008 Act, merely because the property is lying fallow and water gets logged during rainy season due to low lying nature of the property, it cannot be the basis to hold that the subject property should be treated either as wetland or paddy land as per the 2008 Act, etc. 6. In that regard it is profitable to refer to paragraphs 22 & 23 of the judgment of Division Bench of this Court in _**Mather Nagar Residents Association’s**_ case supra, which reads as follows: _“22. 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_ W.P. © No. 16306/2020 ..5.. _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._ _23. However, the alternative argument advanced by learned Senior Counsel for the Residents Association is relying upon Ext.P6 and Ext.P13 revenue record filed in the respective writ petitions that the property was recorded as paddy field. Therefore, the petitioner Residents Association is not entitled to blow hot and cold at the same time contending that the land is wetland in contemplation of the provisions of the Act, 2008. The said aspect is also clear from the report of the KSREC. In that view of the matter, the contention advanced by learned Senior Counsel for the Residents Association that the property in accordance with the report of Sub Collector is wetland, cannot be sustained under law. Mere low lying or a fallow land can never be considered and treated as wetland as per Act, 2008, unless as said earlier, it is having the characteristic features as defined under the Act. That being the factual and legal situation, the contention that the properties in question are wetlands as per Act, 2008 has no foundation or basis. It is also explicit from the satellite pictures produced along with the report of KSREC that, in between the properties constructed with buildings is Kochi to Shornur railway line. Therefore, it is also evident that, there is no existing aquatic systems in order to treat the same as wetland as per the provisions of Act, 2008.”_ 7. After hearing both sides it is seen that the 1[st] respondent LLMC has not properly taken into account the matters disclosed in Ext.P-7 report of the KSREC and also not taken into account the dictum laid down by the Division Bench of this Court in _**Mather Nagar Residents Association’s**_ case supra, in relation to the matters disclosed in the last page of Ext.P-7 report. Accordingly the matter requires serious reconsideration at the hands of the 1[st] respondent LLMC and hence for effectuating such W.P. © No. 16306/2020 ..6.. a remit it is ordered that, the impugned decision of respondent LLMC as per impugned Ext.P-8 order will stand set aside and quashed. Consequently, the application submitted by the petitioner for exclusion of subject property from the land data bank will stand remitted to the respondent LLMC for consideration and decision afresh. 8. The 1[st] respondent LLMC will afford reasonable opportunity of being heard to the petitioner through authorized representative/counsel if any, and then should duly advert to the contents of Ext.P-7 report of the KSREC, and also should take into account the abovesaid dictum laid down by the Division Bench of this Court in _**Mather Nagar Residents Association’s**_ case supra, and then should pass orders afresh, without much delay preferably within a period of 6 weeks from the date of receipt of a certified copy of this judgment. In that regard it has to be borne in mind by the respondent LLMC that, a property which is paddy land as per Section 2(xii) of the 2008 Act can never fulfill the definition of wetland as per Section2(xviii) of the Act, and vice versa, etc as laid down in _**Suraj’s**_ case supra. 9. Further it is ordered that, until a final decision is taken W.P. © No. 16306/2020 ..7.. by the 1[st] respondent LLMC as afore directed, further steps in pursuance of Exts.P-9 & P-10 said to have been issued under Section 13 of the 2008 Act shall be kept in abeyance, and those proceedings will be subject to the decision of the LLMC. 10. The petitioner will produce certified copy of this judgment along with copy of memorandum of this WP(C) with all exhibits before the Agricultural Officer, who is the ex-officio convener of the respondent LLMC for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand finally disposed of. ## Sd/- ## ALEXANDER THOMAS, JUDGE ## MMG The word **'wetland'** appearing in the second sentence of Paragraph No.3 on Page No.1 of the Judgment dated 24.08.2020 in WP(C). No.16306/2020 (K) is corrected and substituted as **'paddy land'** as per order dated 01.12.2020 in WP(C). No. 16306/2020. Sd/- **DEPUTY REGISTRAR** W.P. © No. 16306/2020 ..8.. ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PLANTATIONT AX ASSESSMENT ISSUED W.R.T THE PROPERTY COVERED BY EXT P1(A) FOR THE YEAR 1981-82** **EXHIBIT P1 A TRUE COPY OF THE LAND TAX RECEIPT NO. 08884793 DATED 23-07-2020 W.R.T THE PROPERTY COVERED BY EXT P1(A)** **EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGE OF THE FAIR VALUE REGISTER W.R.T THE PROPERTY COVERED BY EXT P1(A)** **EXHIBIT P3 TRUE COPY OF THE MINUTES OF DECISION OF THE LLMC/1ST RESPONDENT HELD ON 03-10-2010** **EXHIBIT P3 A TRUE COPY OF THE RE-TYPED COPY OF RELEVANT PART OF EXT P3 EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGE OF THE DRAFT DATA BANK PREPARED BY THE LLMC, AROOR, CHERTHALA TALUK. EXHIBIT P5 TRUE COPY OF THE DECISION DATED 2307-2019 OF THE 1ST RESPONDENT. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 2111-2019 OF HON'BLE HIGH COURT EKM IN WP(C) NO 29252/2019 EXHIBIT P7 TRUE COPY OF THE KSREC REPORT NO. A/172/2015/KSREC/003270/20 DATED 2401-2020 ISSUED BY DIRECTION KERALA STATE REMOTE SENSING AND ENVIRONMENTAL CENTER, TVM.** W.P. © No. 16306/2020 ..9.. **EXHIBIT P8 TRUE COPY OF THE DECISION NO. KBA 16/2020-21 DATED 03-07-2020 OF THE 1ST RESPONDENT EXHIBIT P9 TRUE COPY OF THE ORDER NO. C1051149/2011 DATED 04-09-2012 OF THE 2ND RESPONDENT EXHIBIT P10 TRUE COPY OF THE ORDER NO. G.O (ORDINARY) 122/2018/AGRICULTURE DATED 08-02-2018 OF THE 3RD RESPONDENT.**