Subaida v. Local Level Monitoring Committee Nellikuzhy and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942** ## **WP(C).No.15057 OF 2020(F)** ## **PETITIONER:** **SUBAIDA, AGED 37 YEARS** **W/O. ABDUL KHADER KUTTI NAHA, PUTHEEKKAPARAMBIL HOUSE, THIRUNALLUR P.O, THIRUNALLUR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** **BY ADV. SRI.P.M.ZIRAJ** ## **RESPONDENTS:** - **1 THE LOCAL LEVEL MONITORING COMMITTEE NELLIKUZHY REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN, NELLIKUZHY, ERNAKULAM DISTRICT, PIN 686 691** - **2 AGRICULTURAL OFFICER, KRISHI BHAVAN, NELLIKUZHY, ERNAKULAM DISTRICT PIN 686 691** - **3 THE DISTRICT LEVEL AUTHORIZED COMMITTEE, ERNAKULAM DISTRICT, REPRESENTED BY ITS CHAIRMAN, REVENUE DIVISIONAL OFFICER (RDO) MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN 686 610** - **4 THE REVENUE DIVISIONAL OFFICER (R.D.O) MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN 686 610** - **5 KERALA STATE REMOTE SENSING AGENCY AND ENVIRONMENT CENTRE (KSRSEC), VIKAS BHAVAN, C.BLOCK, THIRUVANANTHAPURAM, KERALA 695 033 REPREENTED BY ITS DIRECTOR.** ## **GP SRI K J MANURAJ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.15057 of 2020 2 ## **ALEXANDER THOMAS, J.** ## **=========================== W.P(C) No.15057 of 2020 ===========================** Dated this the 05[th] day of August, 2020 ## **JUDGMENT** ## The prayers in the above Writ Petition (Civil) are as follows : _That the petitioner is the owner in possession of property having an extent of 17.19 Ares in Sy.No.151/1C of Eramalloor Village, Kothamangalam Taluk, Ernakulam District. The said property has been classified as Nilam in the revenue records including basic tax register and data bank even though the same has been converted much prior to the introduction of Act 28 of 2008. Hence the petitioner submitted an application before the first respondent and thereby requested to correct the entry in the data bank after obtaining satellite image from the fifth respondent. Accordingly fifth respondent issued a satellite image dated 20.03.2018 and thereby certified that the property of the petitioner was observed as paddy in the Topo Sheet of 1967 and it was observed under agricultural land use in the imagery of 2009 and the same trend of land use practices were continued in the imagery of 2013 and from the imagery of 2015 and 2017 it was observed under mixed vegetation/plantation/trees. Facts being so petitioner submitted another application before the first respondent dated 3.1.2020 in the prescribed format and thereby requested to remove his property from the draft data bank. On the basis of exhibit P3 application the second respondent submitted exhibit P4 report dated 9.3.2020 as the convener of first respondent before the first respondent and thereby not recommended the change of entry in the_ W.P(C) No.15057 of 2020 3 _draft data bank and accordingly the first respondent rejected the prayer of petitioner. The reason for rejection of application of the petitioner stated in exhibit P4 and P5 is that in exhibit P2 satellite image it is stated that the land of petitioner was a fallow land on 28.3.2009. In exhibit P2 satellite image it has been stated that the survey plot was observed under agricultural land use in the imagery of 2009 and the same trend of land use practices were continued till 2013. Nowhere in exhibit P2 it is stated that the property of petitioner is cultivable fallow land on 28.3.2009 as stated in exhibit P4 and P5. So the averment in exhibit P4 and P5 are without any bonafides and made without understanding the statement of the fifth respondent. It is true that the said land of petitioner is a coconut and arecanut plantation years back and said conversion was much prior to the introduction of Act 28 of 2008. So the exhibit P4 and P5 observation made by the first and second respondents is without any basis and the same is liable to be set aside._ 2. Heard Sri.P.M.Ziraj, learned counsel appearing for the petitioner and Sri.K.J.Manuraj, learned Government Pleader appearing for the respondents. 3. The case of the petitioner is that the subject property though continues to be described ‘as Nilam/Paddy land’ in the Basic Tax Register (BTR), has been converted as garden land or purayidom, long prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land & Wetland Act, 2008). Further that the subject property has been wrongly included in the land data bank prepared as per the provisions of W.P(C) No.15057 of 2020 4 the State Act 28 of 2008 as ‘Nilam/paddy land’. Aggrieved thereby, the petitioner has filed Ext.P-3 application dated 03.01.2020 before the 1[st] respondent-Revenue Divisional Officer (RDO) in Form No.5, seeking for orders for exclusion of the subject property from the land data bank. Earlier, the petitioner had made a request in that regard, which led to the 5[th] respondent-KSRSEC furnishing Ext.P-2 satellite pictures and their expert opinion regarding the subject property as per Ext.P-2 report dated 20.03.2018. Later it appears that the 2[nd] respondent-Agricultural Officer, who is the ex-officio convener of the 1[st] respondent-LLMC has furnished Ext.P-4 dated 09.03.2020 stating the details of Ext.P-2 report of the 5[th] respondent-KSRSEC and also about the outcome of the inspection process. Thereafter, the 1[st] respondent-LLMC by Ext.P-5 proceedings dated 09.03.2020 has decided not to accept the plea of the petitioner for excluding the property from the land data bank, for the reasons stated therein. It is this proceeding that Ext.P-5 under challenge in these proceedings. 4. A reading of Ext.P-5 proceedings of the LLMC would show that the 1[st] respondent would proceed on the premise as if, Ext.P-2 report of the 5[th] respondent-KSRSEC regarding the analysis of the satellite pictures would clearly show that as on 28.03.2009, the subject property was being put to paddy land use, etc. Further, the details of the inspection referred to W.P(C) No.15057 of 2020 5 in Ext.P-4 regarding the existence of arecanut trees and coconut trees standing in the subject property are also mentioned in Ext.P-5. It is also stated that the subject property is lying as ‘tharisu’ presumably fallow and that there are water logged areas and further that there are nearby ‘thodu’ and paddy land, etc. 5. However, a reading of Ext.P-5 would clearly indicate that the main aspect which was laid in the mind of the 1[st] respondent is that Ext.P-2 report of the 5[th] respondent-KSRSEC has clearly stated that the subject property was being put to paddy land as on 28.03.2009. A reading of Ext.P-2 expert report of the KSRSEC regarding their analysis of satellite pictures would clearly show that the said fact assumed by the 1[st] respondent in Ext.P-5 is not factually correct or tenable. This would be clear from the discussion of the 5[th] respondent in the penultimate and the last page of Ext.P-2 report, the relevant portions of which are extracted herein below : ## “ **SURVEY NUMBER 151/1** As per the toposheet of 1967, the plot 151/1 was observed under paddy. The plot was observed under agricultural landuse with a small patch of mixed plantation/vegetation in the south eastern corner of the plot in the data of 28/03/2009 (Fig:3). This trend in landuse pattern was observed to continue in the plot in the data of subsequent years as in 31/01/2013 (Fig:4), 02/05/2014 (Fig:5) and 15/01/2017 (Fig:6).” ## **OBSERVATIONS & CONCLUSION** The analysis has been carried out from all available data sets of toposheet (1967) and different satellite data sets of 2009, 2013, 2014 and 2017 for the survey plot. W.P(C) No.15057 of 2020 6 As per the toposheet of 1967, the plot 151/1 was observed under paddy. The plot was observed under agricultural land use with a small patch of mixed plantation/vegetation in the south eastern corner of the plot in the data of year 2009. This trend in landuse pattern was observed to continue in the plot in the data of subsequent years as in 2013, 2014 and 2017.” 6. The abovesaid paragraph given on the penultimate page of Ext.P-2 would clearly show that according to the 5[th] respondent, that as per the toposheet of 1967, the plot 151/1 was observed under paddy. In contradistinction to this specific finding, the next sentence thereof is to the effect that the plot was observed under ‘agricultural land use’ with a small patch of mixed plantation/vegetation in the south eastern corner of the plot in the data of 28.03.2009 (figure.3) and that the said trend in land use pattern was observed to continue in the plot in the data of summary years for the subsequent periods mentioned therein. The said observations are again repeated in the last paragraph of Ext.P-2 given on last page thereof, wherein it is also reiterated that as per the top sheet of 1967, the plot in question was observed as paddy land. In contradiction to that observation, it is mentioned further therein that the plot was observed under ‘ _**agricultural land use**_ ’ with a small patch of mixed vegetable/vegetation, etc. and that the same trend of land use has continued for the subsequent periods mentioned therein. Therefore, a reading of the penultimate page and the final page of Ext.P-2 would clearly indicate that though the 5[th] respondent has clearly mentioned that as per W.P(C) No.15057 of 2020 7 the top sheet of 1967, the plot was observed under ‘paddy land use’, the said plot was observed under ‘agricultural land use’ with small patch mixed plantation/vegetation, in the data of 28.03.2009 as well as the subsequent period mentioned therein. These aspects are again reiterated in the last paragraph of Ext.P-2 extracted hereinabove. Therefore, what has been stated by the 5[th] respondent therein is only that the data of 28.03.2009 would show that the land was being put to ‘agricultural land use’, with a small patch of mixed plantation/vegetation and this does not necessarily imply that the land was being exclusively or predominantly used for paddy land use. Whereas, the 1[st] respondent has assumed in the first paragraph of Ext.P-5, as if Ext.P-2 would clearly show that the property was put to paddy land use, as per the data of 28.03.2009. The said factual assumption made by the 1[st] respondent is clearly erroneous and factually wrong and tenable. Merely because the 5[th] respondent has stated in Ext.P-2 that the data for 2009 and subsequent periods would show that the land has been put for ‘agricultural land use’ does not necessarily mean or imply that the land has been exclusively or predominantly used for paddy land purposes. Moreover, it has also been borne in mind that it is admitted both in Exts.P-4 & P-5 that now there are quite a lot of arecanut trees and coconut trees standing in the subject property. Therefore, the said factual conclusion made by the 1[st] respondent in Ext.P-5 is based on irrelevant W.P(C) No.15057 of 2020 8 consideration and not taking into account the correct and relevant factual aspects borne out from Ext.P-2. Further, there are observations in Ext.P-5 as if, there are water logged areas in the property and that there are paddy lands, etc. In that regard, it would be relevant and profitable to refer to the legal principles laid down by the Division Bench of this Court in cases as in _**Mather Nagar Residents’ Association v. District Collector**_ [2020 (2) KLT 192], wherein it has been held in paragraph Nos.22, 24 & 25 thereof, 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 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. **==> picture [108 x 23] intentionally omitted <==** 24. It is also relevant to note that, prior to the introduction of Act, 2008, there was no prohibition from reclaiming a wetland. True, prior to the introduction of Act, 2008, there was a W.P(C) No.15057 of 2020 9 prohibition contained under the Kerala Land Utilisation Order, 1967 from utilising a paddy field for other purposes other than paddy cultivation. It is an admitted fact that, the properties in question are not included in the data bank constituted as per the provisions of Act, 2008. Section 3 of Act, 2008 deals with prohibition on conversion or reclamation of paddy land. Subsection (1) thereunder read thus; _“On and from the commencement of this Act, the owner, occupier or the person in custody of any paddy land shall not undertake any activity for the conversion or reclamation of such paddy land except in accordance with the provisions of this Act.”_ 25. Therefore, it is explicit and clear that from the date of introduction of Act, 2008 i.e., 12.8.2008 onwards, a paddy field cannot be converted otherwise than in accordance with the provisions of Act, 2008. Which thus also means, Act, 2008 prohibits conversion of paddy land, only if the property in question was included in the data bank constituted for the purpose under the Act. Admittedly the properties in question are not included in the data bank constituted under Act, 2008. It is also clear from the report of the KSREC that, though the properties in question were paddy field in the toposheet of 1967, in the toposheet of 2008 onwards the properties in Sy.No.104/1 is shown as lying fallow with mixed vegetation etc. etc. and the properties situated in Sy.No.104/2 is shown as lying fallow with mixed vegetation/plantations and buildings/structures towards the eastern side. Accordingly, it is clear that the filling up of the property was done prior to the introduction of Act, 2008.” 7. In the light of the abovesaid legal principles laid down in the Division Bench of this Court in _**Mather Nagar Residents’ Association’s case**_ (supra) [2020 (2) KLT 192], more particularly, paragraph Nos.22, 24 & 25 thereof and also in the light of the abovesaid wrong factual assumptions made by the 1[st] respondent on the basis of Ext.P-2, this Court is of the considered view that the matter would require serious reconsideration at the hands of the 1[st] respondent and therefore, it W.P(C) No.15057 of 2020 10 would warrant a remit. For effectuating such a remit, the impugned Ext.P-5 proceedings will stand set aside and quashed and consequently, Ext.P-3 application will stand remitted to the 4[th] respondent-RDO, for consideration and decision afresh and consequently the 1[st] respondentLLMC has decided not to recommend in favour of the petitioner to the 4[th] respondent-RDO. 8. Accordingly, it is ordered that the 4[th] respondent-Revenue Divisional Officer will take up the matters in Ext.P-3 application for consideration afresh and should ensure that an inspection of the subject property and the nearby properties is conducted by the Village Officer concerned with due prior notice to the petitioner and the 2[nd] respondentAgricultural Officer and to ascertain as to the ground realities of the subject property as on 12.08.2008 and as to whether the subject property was suitable for cultivation as on 12.08.2008 and as to whether the subject property could fulfil the definition of ‘paddy land’ as per Sec.2(xii) of the 2008 Act as on 12.08.2008, etc. and copy of the inspection report should be given to the petitioner in advance, etc. This process shall be duly completed by the Village Officer concerned within three weeks from the date of receipt of a certified copy of this judgment and copy of the inspection so issued by the 1[st] respondent-LLMC, containing the recommendations should also be given to the petitioner in advance. Thereafter, W.P(C) No.15057 of 2020 11 the 1[st] respondent will afford opportunity of being heard to the petitioner through authorized representative/counsel, if any and to give their recommendations on the plea of the petitioner made out in Ext.P-3 for exclusion of the subject property from the land data bank to the 4[th] respondent-RDO and the matters in Ext.P-2 as well as the recommendations given by the 1[st] respondent-LLMC and after due regard to the contents of the inspection report and also having due regard to the legal principles laid down by the Division Bench of this Court in _**Mather Nagar Residents’ Association’s case**_ (supra), etc., without much delay, preferably within a period of one month from the date of receipt of the proceedings of the 1[st] respondent-LLMC containing their recommendations, as aforedirected 9. The petitioner will produce certified copies of this judgment along with copies of the Memorandum of this W.P(C) with all the exhibits before the convener of the 1[st] respondent-LLMC as well as the Village Officer concerned, 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.15057 of 2020 12 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED 11-052020 ISSUED BY THE VILLAGE OFFICER, ERAMALLOOR VILLAGE** **EXHIBIT P2 TRUE COPY OF THE SATELITE IMAGE ISSUED BY THE FIFTH RESPONDENT DATED 20-03-2018** **EXHIBIT P3 TRUE COPY OF APPLICATION DATED 3-1-2020 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT EXHIBIT P4 TRUE COPY OF THE REPORT DATED 9-3-2020 SUBMITTED BY THE SECOND RESPONDENT BEFORE THE FIRST RESPONDENT** **EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGES OF ,MINUTES OF THE FIRST RESPONDENT HELD ON 9-3-2020**