Prince Lal v. District Collector, Civil Station, Alappuzha; Revenue Divisional Officer, Chengannur; Tahsildar, Taluk Office, Karthikappally; Village Officer, Karuvatta Village; Station House Officer, Haripad Police Station; M. Hussain, Sub Inspector of Police, Haripad Police Station

## **0IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942** ## **WP(C).No.10488 OF 2020(I)** ## **PETITIONER:** **PRINCE LAL AGED 35 YEARS S/O. SHAJILAL, THAICHIRAYIL BUNGALOW, KARUVATTA VADAKKUM MURI, KARUVATTA P O, ALAPPUZHA-690517.** **BY ADVS. SRI.SHABU SREEDHARAN SHRI.NITIN RAJAN NAIR SMT.JISMIN JOSE SHRI.UNAIS K.P. SMT.ANJANA G. SHRI.JOBIN JOSE P. SMT.RADHIKA U.** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR CIVIL STATION, ALAPPUZHA-688012,** - **2 THE REVENUE DIVISIONAL OFFICER, CHENGANNUR, ALAPPUZHA-689121.** - **3 THE TAHSILDAR, TALUK OFFICE, KARTHIKAPPALLY, ALAPPUZHA-690516.** - **4 THE VILLAGE OFFICER, KARUVATTA VILLAGE, KARUVATTA P O, ALAPPUZHA - 690517.** - **5 THE STATION HOUSE OFFICER, HARIPAD POLICE STATION, HARIPAD P O, ALAPPUZHA - 690514.** - **6 M.HUSSAIN SUB INSPECTOR OF POLICE, HARIPAD POLICE STATION, HARIPAD P O, ALAPUZHA - 690514.** ## **SRI.K.J,MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.10488 of 2020 2 ## **ALEXANDER THOMAS, J.** ## **=========================== W.P(C) No.10488 of 2020** **===========================** Dated this the 22[nd] day of June, 2020 ## **JUDGMENT** _The petitioner is engaged in the profession of fish farming. He took on lease the property belonging to Mr.Roy Cherian at Karuvatta Village near K.V.Jetty Jn. for the purpose of fish farming in the pond situated therein. The said pond was filled up with slurry and mud. In order to make it fit for fish farming, the petitioner started removing such slurry and mud from the pond by using a motor along with the other required equipments. While doing so, the 6[th] respondent accompanied by the police party reached the place on 14.03.2020 and forcefully took away the motor and connected equipments. The petitioner went to the Haripad Police Station on that evening itself, met the 5[th] respondent, tried to convince the real facts and requested to get back the said motor and connected equipments. But, he was told that they have already initiated proceedings under Secs.11 & 19 of the Kerala Conservation of Paddy Land and Wetland Act. From the next day onwards, the petitioner has been approaching the respondents 1 to 4 one after another, trying to convince them the real facts and requesting to get released the seized articles kept_ W.P(C) No.10488 of 2020 3 _in the premises of the Haripad police station. But, respondents 1 to 4 are declining to entertain the genuine request of the petitioner under the pretext that all of them are busy with the duties in connection with the corona crisis. The petitioner purchased the said motor as a second hand one. Due to the seizure of the same along with the connected equipments, he is not in a position to do his fish farming work resulting in the loss of income and the sufferings thereon. Now 70 days have already elapsed since the seizure of the said articles. There is every chance of ruining of the motor and the other items kept in the most negligent manner at the premises of the Haripad police station. It is very much necessary for the petitioner to get released the seized articles at the earliest._ 2. The main contentions raised by the petitioner are as follows: A. The petitioner purchased the motor as a second hand one. Due to the seizure of the same along with the connected equipments, he is not in a position to do his fish farming work resulting in the loss of income and the sufferings thereon. Now 70 days have already elapsed since the seizure of the said articles. There is every chance of ruining of the motor and the other items kept in the most negligent manner at the premises of the Haripad police station. B. The petitioner has not done any act in contravention of the provision contained in Sec.11 of the Act. His act squarely comes within the W.P(C) No.10488 of 2020 4 purview of the proviso to the said section. The allegation to the contrary contained in Ext.P-1 report is false and baseless. The respondents 5 & 6 seized the said articles and initiated proceedings under Secs.11 & 19 of the Act with the ulterior motive of harassing and causing financial loss to the petitioner under the influence of his certain enemies in the locality. It is in the light of these averments and contentions, the petitioner has filed the instant Writ Petition (Civil) with the following prayers: - _“1) To call for the records leading to Exhibit-P1 and to quash ExhibitP1 and all further proceedings thereon by issuing a writ of certiorari._ - _2) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to release the articles seized by the 6[th] respondent from the possession of the petitioner on 14.3.2020 and now kept in the premises of Haripad Police Station._ - _3) And to pass such other appropriate writs, orders or directions which this Hon'ble Court deems fit and proper in the facts and circumstances of the case so as to secure the ends of justice.”_ 3. Heard Sri.Shabu Sreedharan, learned counsel appearing for the petitioner and Sri.K.J.Manu Raj, learned Government Pleader appearing for respondent Nos.1 to 5. In the nature of the orders proposed to be passed in this Writ Petition, notice to contesting respondent No.6 (who is the personal incumbent holding the official post of R-5 SHO) will stand dispensed with. 4. According to the petitioner the motor and the pump owned by him used in connection with pumping out of water from a pond has been W.P(C) No.10488 of 2020 5 illegally seized by the 6[th] respondent on the wrong factual premise, as if the said fact would amount to contravention of the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and more particularly, on the thoroughly factually wrong premise as if the subject property is a “കകളള/തണᩆ᪍ര㪊➕ടള'' and therefore the said activity without permission could amount to reclamation or conversion of the subject property, which would amount to contravention of Sec.3(1) or Sec.11, as the case may be of the abovesaid Act. The petitioner would point out that a mere reading of Ext.P-1 seizure mahazar issued by the 5[th] respondentSHO would show that the specific allegation therein is that the pump/motor was used in a pond (കകളള) and interchangeably it is also alleged in Ext.P-1 that the subject property is a “തണᩆ᪍ര㪊➕ടള'” as understood in the 2008 Act and that therefore, the said activity would amount to contravention of Sec.11 of the said Act. 5. Ext.P-1 seizure mahazar dated 14.03.2020 issued by the 5[th] respondent-SHO reads as follows: W.P(C) No.10488 of 2020 **==> picture [8 x 9] intentionally omitted <==** **----- Start of picture text -----**<br> 6<br>**----- End of picture text -----**<br> **==> picture [467 x 742] intentionally omitted <==** W.P(C) No.10488 of 2020 7 6. The respondents were given sufficient opportunity to submit instructions and to file statement in the matter. None of the respondents have filed their statement in the matter. 7. However, Sri.K.J.Manu Raj, learned Government Pleader appearing for the official respondents has submitted on the basis of instructions furnished by the 5[th] respondent-SHO as well as the competent revenue officials like respondents 2 to 4. 8. A reading of Ext.P-1 seizure mahazar would make it clear like the day light that the specific allegation is that the impugned activity has been carried out in a "കകളള (pond)”. Thereafter, it is alleged that the subject property is “തണᩆ᪍ര㪊➕ടള'” and therefore, the activity would amount to contravention of Sec.11 of the 2008 Act. Going by the connotations of the ordinary use of the language, a "കകളള (pond)” is entirely distinct from “തണᩆ᪍ര㪊➕ടള'” (wetland). 9. Sec.2(xviii) of the 2008 Act defines “തണᩆ᪍ര㪊➕ടള''' (Wetland) as follows: ““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;” W.P(C) No.10488 of 2020 8 ## The Malayalam version of the abovesaid definition contained in Sec.2(xviii) of the 2008 Act defines “തണᩆ᪍ര㪊➕ടള''' (Wetland) as follows: “(xviii) “തണ�ർതട�" എന�ൽ മണ� ജലപര�തമ�ക�കക�ണ� , കരപദ�ശത�ന� ജല�ശയങൾക� ഇടയ�ൽ സ�ത�ക#യനത� , ജലന�രപ� സ�ധ�രണഗത�യ�ൽ ഉപര�തല�വകരദയ� അത�ദന�ടടദത� ആയ�ര�കകദയ� ആഴ�കറഞ ജലത�ൽ മട�ക�ടകകദയ� അഥവ� മനഗത�യ�ൽ #ല�കകദയ� കകട�ക�ടകകദയ� ക#യന ജലത�ക: സ�ന�ദ<�കക�ണ� സവ�ദശഷമ�കകദയ� ക#യന സല� എനർതമ�കനത� അത�ൽ ക�യലകൾ, അഴ�മഖങൾ, ദ#റപദ�ശങൾ , കടദല�രക�യലകൾ , കണൽക�ടകൾ , #തപന�ലങൾ, ഓരള #തപ� ന�ലങൾ, #തപ�കല ക�ടകൾ എന�വ ഉൾകപടനത� , കനൽ വയലകള� ന��കള� ഉൾകപട�തതമ�കന .” ## 10. Sec.2(xii) of the 2008 Act defines Paddy Land as follows: ““paddy land” means all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals;” 11. This Court in decisions as in _**Asma v. District Collector, Thrissur and others**_ [2015 (1) KLT 30] has held that a pond (dry land) for the purpose of agriculture cannot be treated as wetland as per the 2008 Act. It will be profitable to refer to paragraph No.3 of the abovesaid decision of this Court in _**Asma's case**_ (supra), which reads as follows : “3. The above property consists of eight manmade ponds for aquaculture and other improvements. However, in the data bank, this property is classified private pond. In the counter affidavit filed by the third respondent it is stated that in the basic tax register, the total extent of four ponds in Survey No.65 is 1 Acre and 5 cents; the extent of one pond situated in Survey No.60/2 is 15 cents; so also the extent of two ponds in Survey No.60/1 is approximately 15 cents; so also the extent of two ponds in Survey No.60/1 is approximately 15 cents. Therefore, the question that arises for consideration is whether the manmade ponds can be treated as a wetland for the purpose of conservation of paddy land and wetland. The wetland is defined under S.2(xviii) of the Act as follows: “wetland” means land lying between terrestrial and aquatic W.P(C) No.10488 of 2020 9 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;” A bare reading of the definition of “wetland” would indicate that wetland is a natural land lying between terrestrial and aquatic system. It will not bring into the fold, a pong dug in a dry land for the purpose of aquaculture.” 12. The Division Bench of this Court in the case in _**Aji Kumar v. Vinod Kumar**_ [Judgment dated 03.12.2015 in W.A No.926/2015) [2016 (1) KLT online 2771] has held that a paddy land can never be characterized as a wetland and vice versa and that the paddy land and wetland are having different concepts and a particular property can never be simultaneously described both as paddy land as well as wetland and that man made ponds in paddy land if not used for paddy cultivation or if it is not an allied construction of the paddy land, cannot be described as paddy land or wetland. 13. It will be profitable to refer to paragraph Nos.8 & 13 of the judgment of the Division Bench of this Court in **Aji Kumar's case** (supra), which reads as follows: _“8. On the other hand, Sri.P.K.Suresh Kumar, learned senior counsel appearing on behalf of the petitioner submitted that the paddy land had been converted long prior to the 2008 Act coming into force. But for the area which has been converted as ponds, the balance extent of land is lying as garden land and the trees in the said property is having an age of more than 20 years. That apart, the learned Single Judge had directed the LLMC to conduct a further inspection in the matter and they have_ W.P(C) No.10488 of 2020 10 _categorically stated that the property is not fit for paddy cultivation. A statement was also filed, as directed by the learned Single Judge, in which it was clearly indicated that, at the time of commencement of Act, 28 of 2008, the land was not a paddy land. Statement further indicates that there were two man made ponds in the property having a depth of around 8 feet and filled with water to a height of nearly 5 feet. In the statement, it is further stated that, adjacent to the paddy land, there is a canal named 'Madurampuzha chal'. Since the property is lying adjacent to a canal and the land gets flooded during rainy season, the LLMC in its meeting held on 17/11/2014, decided that the property of the petitioner will come within the definition of wet land as defined under Section 2(xviii) of the 2008 Act. It is also stated that the data bank of the Panchayat has been published in the gazette on 23/02/2012 and that the LLMC has no power to correct the description of the property in the data bank. It is therefore argued that the description of the property as paddy land is found to be incorrect by LLMC itself. But, according to them, it could be treated as wet land as, during the rainy season, the land gets flooded. Learned counsel submitted that going by the definition of wet land under the 2008 Act, this property cannot be characterized as wet land and that apart, it is a man made pond. Learned counsel also relied upon our judgment dated 07/01/2015 in W.P.C.No.23558/2014, wherein we have indicated that from the definition of paddy land and wet land under the 2008 Act, it is evident that paddy land cannot be wet land and vice versa. Paragraph 11 of the judgment is relevant which reads as under:_ _“11. First of all, the petitioner has no consistent case as to whether the property is paddy land or wet land. A paddy land coming within the meaning of the Act and wet land coming within the meaning of the Act have different concepts and a particular property cannot be paddy land as well as wet land. Paddy land and wet land are defined under the Act as under:_ _”paddy land” means all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage, channels, ponds and canals._ _“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.”_ W.P(C) No.10488 of 2020 11 _From the definition itself it is evident that paddy land cannot be wet land and vice versa.”_ _13. Yet another argument raised is that even though it is a paddy land as per the report of the Agricultural Officer, it has to be treated as a wet land. Definition of wet land is incorporated in Section 2(xviii) which reads as under:_ _“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.”_ _Wet land has been given the meaning as land lying in between terrestrial and aquatic systems. In the report of the LLMC it is indicated that there is a chal namely 'Madurampuzha chal' which is flowing through the western side of the petitioner's land and during rainy seasons, water from the nearby paddy lands and the Madurampuzha chal overflows through the petitioner's property. Going by the definition of wet land, it is the 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 and does not include paddy lands and rivers. Apparently, a paddy land can never be characterized as wet land and vice versa, as held by us in the judgment in W.P.C.No.23558/2014. That apart, admittedly it is a man made pond used for pisiculture. Man made ponds in paddy land, if not used for paddy cultivation or if it is not an allied construction of the paddy land, cannot be described as paddy land or wet land. True that in the judgment in_ _**Asma** (supra), the data bank itself classified the property as private pond and the learned Single Judge held that a pond dug in a dry land for the purpose of aquaculture is not a wet land. A pond dug in a paddy land also cannot be treated as wet land. If a pond is dug as an allied construction for paddy cultivation, it is treated as paddy land coming under Section 2(xii) of the 2008 Act. If the pond does not fall under the definition of paddy land as defined under 2(xii), the pond cannot be treated as wet land. In order to treat a pond as a paddy land, it has to be an allied construction of a paddy land. Merely for the reason that during rainy season water flows from the chal and other paddy fields to the property of the petitioner and it is flooded, cannot be a reason to treat a man made pond as a wet land.”_ W.P(C) No.10488 of 2020 12 14. This Court in the judgment in _**Suraj v. State of Kerala and others**_ [2018 (1) KLT 1 = 2018 (1) KHC 520] has held that going by the definition of Wetland as per Sec.2(xviii) of the 2008 Act, the word “systems” contained in the said definition or clause refers to ecosystem and natural lands lying between terrestrial ecosystem and aquatic ecosystem in the State alone would fall within the ambit of the definition and the land which was originally a paddy land could never fall within the definition of wetland as per Sec.2(xviii) of the 2008 Act. 15. Accordingly, it is urged by the petitioner’s counsel that the very specific allegations in Ext.P-1 seizure mahazar is to the effect that the activity has been carried out in a pond, the same can never fulfil the definition of wetland (തണᩆ᪍ര㪊➕ടള) as per Sec.2(xviii) and therefore, the impugned proceedings is _void abinitio_ and has been taken without jurisdiction and competence and that no action under Sec.11 of the Act is legally permissible in the facts and circumstances of the case. 16. _Per contra_ , Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents would submit on the basis of instructions that in the Basic Tax Register (BTR) in respect of the subject property, it is stated that the subject property is paddy land and that enquiries have now revealed that the subject property has been included in the land data bank and “Thodu”. Hence, it is seen that even going by the case of the official W.P(C) No.10488 of 2020 13 respondents, they may not have a case that the subject property has been included in the land data bank as “paddy land”. To a specific query as to whether the respondents have a definite case that the subject property would satisfy the definition of “paddy land” as per Sec.2(xii) of the 2008 Act as on 12.08.2008 (date of coming into force of the 2008 Act), the learned Government Pleader submits that he does not have factual instructions on that aspect and that those are matters which might require more detailed factual details and on the issue as to whether the subject property satisfied the definition of “paddy land” as per Sec.2(xii) as on 12.08.2008 or as to whether it was converted, etc. and that this Court may direct the 1[st] respondent-District Collector to immediately bestow his consideration on this matter. Therefore, after hearing both sides, it is presently the admitted stand of the official respondents that the subject property cannot be described as wetland in terms of Sec.2(xviii) of the 2008 Act and the mention in Ext.P-1 that it is “തണ�ർതട�(wetland)” appears to be factually untenable and wrong. It is pointed out by the learned Government Pleader that the factum regarding the seizure of the motor and pump as per Ext.P-1 has already been duly intimated and reported to the 1[st] respondent-District Collector, who is the statutory authority to finalize the proceedings taken in pursuance of Sec.19, in terms of Sec.20 of the Act. W.P(C) No.10488 of 2020 14 17. Accordingly, the following directions and orders are passed : - (i) The 3[rd] respondent-Tahsildar with the assistance of the 4[th] respondent-Village Officer, if so required will immediately furnish a report to the 1[st] respondent-District Collector as to the exact description of the subject property in the Basic Tax Register (BTR) maintained in terms of Rule.4 of the Kerala Land Tax Act and also as to the description of the property in the draft data bank/land data bank, more particularly as to whether it is described as “paddy land” or converted land, etc. and also the issue as to whether there are any records to show like reports of the Local Level Monitoring Committee, etc. to show that the subject property would satisfy the definition as per Sec.2(xii) of the 2008 Act as on the crucial cut-off date of 12.08.2008 (date of coming into force of the 2008 Act). Report in this regard should be duly submitted by the 3[rd] respondent-Tahsildar within two weeks from the date of receipt of a certified copy of this judgment and copy of this report should also be given to the petitioner in advance. - (ii) Thereafter, the 1[st] respondent-District Collector will afford to a reasonable opportunity of being heard to the petitioner W.P(C) No.10488 of 2020 15 and then should ascertain as to whether the subject property has been described as “paddy land” in the Basic Tax Register and also its description in the draft data bank/final data bank, more particularly as to whether it is described as “paddy land” or converted land therein and also as to whether there are any objective materials like the LLMC report, etc. which would clearly show that the subject property covered by Ext.P-1 would satisfy the definition of “paddy land” as per Sec.2(xii) of the 2008 Act as on the crucial cut-off date of 12.08.2008. It has to be borne in mind in that regard that even if the property has been shown as “paddy land” both in the BTR as well as in the draft data bank/land data bank, penal action in terms of the provisions contained in Sec.11 and penal action terms of Sec.3(1) as well as Secs.19 & 20 of the Act can be taken only if the subject property would satisfy the definition of either “paddy land” as per Sec.2(xii) or the definition of “wetland” as per Sec.2(xviii) of the 2008 Act, as on the crucial cut-off date of 12.08.2008 (date of coming into force of the Act), going by such objective reports, which reflects the existing ground realities. W.P(C) No.10488 of 2020 16 - (iii) The petitioner may file his detailed objections to Ext.P-2 - seizure proceedings and also may file separate applications for grant of interim custody of the motor and pump pending finalization of the proceedings under Sec.20 of the 2008 Act. - (iv)If the abovesaid crucial parameters are not fully satisfied, then there is no question of the statutory officers taking any adverse or penal action in terms of Sec.3(1) or Sec.11 or Sec.19 or Sec.20 of the 2008 Act and in such case, the proceedings will have to be closed and the seized articles (pump and motor, etc.) should be immediately released to the petitioner. Orders in this regard on the abovesaid objections and application of the petitioner should be duly passed by the 1[st] respondent-District Collector within a period of three weeks from the date of receipt of a copy of the report of the 3[rd] respondent-Thasildar as aforedirected. 18. The petitioner will produce certified copies of this judgment as well as copies of the Memorandum of this W.P(C) with all W.P(C) No.10488 of 2020 17 the exhibits before both the 1[st] respondent-District Collector as well as the 3[rd] respondent-Tahsildar, 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** vgd W.P(C) No.10488 of 2020 18 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF THE REPORT SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 1ST RESPONDENT DATED 14.3.2020.**