P.T. SREENIVASAN v. Revenue Divisional Officer Kozhikode and Village Officer Chevayur, ParoopPadi, Kozhikode

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 WP(C) NO.33499 OF 2023 ``` ## **`PETITIONER:`** ``` P.T.SREENIVASAN, AGED 62 YEARS S/O.MADHAVAN, THAYYIL HOUSE, CHELAVOOR, KOZHIKODE, PIN - 673571 ``` ``` BY ADVS. P.V.ANOOP PHIJO PRADEESH PHILIP ANTONY THOMAS ANJU R S. K C MOHAMED RASHID ``` ## **`RESPONDENTS:`** - **`1 REVENUE DIVISIONAL OFFICER KOZHIKODE, CIVIL STATION, ERANHIPALAM, KOZHIKODE, PIN - 673020`** ``` 2THE VILLAGE OFFICER CHEVAYUR, PAROOPPADI, KOZHIKODE, PIN – 673012 ``` ``` BY SR.G.P.SRI.E.G.GORDEN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.33499 of 2023 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P8 order, whereby Form 5 application submitted by him has been rejected by the 1[st] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of 38 Ares and 14.22 Sq.Meters of land comprised in Sy.Nos.54/29, 54/30, 54/31, 54/32 & 54/33 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 included in the Data Bank. The petitioner filed Ext.P4 application in Form 5 of ``` W.P.(C) No.33499 of 2023 3 ``` 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.P8 order stating that as per the report of the Kerala State Remote Sensing and Environment Centre [for short, ‘the KSRSEC’], the land has the characteristics of wetland. Most areas of the subject land showed no evidence of natural conversion before 2008. The trees along the boarders of the subject land were all planted after 2008 and the middle portion of the land is recently filled with M.sand and accordingly it is convinced that there is no natural conversion of land before 2008. ``` ``` 4. The petitioner has filed this writ petition challenging Ext.P8 contending,inter alia, that ``` W.P.(C) No.33499 of 2023 4 ``` 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 has misread and misinterpreted the report of the KSRSEC in ascertaining the the exact nature of the land as on 12.02.2008, the date of coming into force of the Act, 2008. The petitioner contends that the Village Officer has, in Ext.P6 report, recommended to remove the land from the Data Bank. It is stated that Ext.P7 KSRSEC report shows that the land is boarded by a new road on the east side and was observed under scattered vegetation with plantation/trees towards the west side in the date of 2007. However, the RDO misread the KSRSEC report. ``` **`5. The relevant consideration for inclusion of`** W.P.(C) No.33499 of 2023 5 ``` 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 prepared by Central/State Scientific Technological Institutions and pass appropriate orders on the application. On a perusal of Ext.P8, it is evident that, the RDO has not considered the report of the Village Officer and has not appreciated the KSRSEC report in its ``` W.P.(C) No.33499 of 2023 6 ``` proper perspective. The presence of M.sand in the property is not a criteria to come to a conclusion regarding the nature of land as on 2008. ``` ``` 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 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. ``` W.P.(C) No.33499 of 2023 7 ``` State of Kerala and Others [2018 (1) KHC 250], relying on the decision inAsma 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 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, it should have the characteristic features and requirement as is provided under the Act, 2008. It is clear from the report ``` W.P.(C) No.33499 of 2023 8 ``` 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 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 set aside Ext.P8 with a direction to the 1[st] respondent, the RDO, to reconsider ``` W.P.(C) No.33499 of 2023 9 ``` Ext.P4 application in Form 5 and take a decision in the matter on the basis of Ext.P7 KSRSEC report, the relevant factors mentioned in Rule 4(4F), the observation of this Court and the binding precedents within a period of two months 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 1[st]respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/15/03/2024 ``` 10 W.P.(C) No.33499 of 2023 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** - **`Exhibit P1`** ``` Exhibit P1TRUE COPY OF THE SALE DEED DATED 23.04.2007 IN RESPECT OF 11.5CENTS Exhibit P2TRUE COPY OF THE SALE DEED REGISTERED ON 03.11.2007 ``` - **`Exhibit P3 TRUE COPY OF THE TAX RECEIPT ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT DATED 16.05.2022`** - **`Exhibit P4 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER IN FORM 5 BEFORE THE 1ST RESPONDENT DATED 03.11.2022`** - **`Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 23.03.2023 IN WPC NO. 10120/2023`** - **`Exhibit P6 TRUE COPY OF THE INSPECTION REPORT SUBMITTED 2ND RESPONDENT BEFORE THE FIRST RESPONDENT DATED 01.04.2023`** - **`Exhibit P7 TRUE COPY OF THE KSREC REPORT DATED 12.06.2023 FURNISHED BY THE DIRECTOR, KSREC TO THE AGRICULTURE OFFICER`** - **`Exhibit P8 TRUE COPY OF THE PROCEEDINGS DATED 14.06.2023 PASSED BY THE 1ST RESPONDENT`** - **`Exhibit P9(a) TRUE COPY OF THE PHOTOGRAPH OF THE LAND Exhibit P9(b) TRUE COPY OF THE PHOTOGRAPH OF THE LAND`**