Kerala High Court
Aji R vs The District Collector on 3 March, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941
WP(C).No.3987 OF 2020(W)
PETITIONERS:
1 AJI R.,
AGED 42 YEARS
S/O. RAJAN, KAIPPALLIL, THALEERADI, KADUVINAL P.O.,
VALLIKUNNAM, ALAPPUZHA, PIN-690501.
2 GOKUL G.,
AGED 18 YEARS
S/O. GOPINATHAN PILLAI, KUNNATHU, THALEERADI,
KADUVINAL P.O., VALLIKUNNAM, ALAPPUZHA, PIN-690501.
3 ABHILASH B.,
AGED 31 YEARS
S/O.BHADRAN, ABHILASH BHAVANAM, THALEERADI,
KADUVINAL P.O., VALLIKUNNAM, ALAPPUZHA, PIN-690501.
4 SUBHASH B.,
AGED 35 YEARS
S/O. BALACHANDRAN, SUBHASH BHAVANAMM, THALEERADI,
KADUVINAL P.O., VALLIKUNNAM, ALAPPUZHA, PIN-690501.
5 SANTHI I.,
AGED 35 YEARS
D/O. INDIRAMMA, PRASAD MANDIRAM, THALEERADI,
KADUVINAL P.O., VALLIKUNNAM, ALAPPUZHA, PIN-690501.
6 JILU SANTHAN V.,
AGED 34 YEARS
W/O. SHABHU, PADINJARE THAYYIL, MEENATHU,
VALLIKUNNAM P.O., ALAPPUZHA-690501.
7 SOUMYA S.,
AGED 30 YEARS
W/O. PUSHPODAYAN, KANDIYIL VADAKKATHIL,
THEKKEMURIYIL, VALLIKUNNAM P.O., ALAPPUZHA,
PIN-690501.
8 ASWATHY,
AGED 33 YEARS
W/O. ASHOKA KUMAR, PATTATHIL VADAKKAHIL, MEENATHU,
VALLIKUNNAM, ALAPPUZHA, PIN-690501.
W.P(C) No.3987 of 2020
2
BY ADVS.
SRI.M.V.THAMBAN
SRI.R.REJI
SMT.THARA THAMBAN
SRI.B.BIPIN
SRI.ARUN BOSE
SMT.DEEPA SREENIVASAN
RESPONDENTS:
1 THE DISTRICT COLLECTOR,
COLLECTORATE, ALAPPUZHA-688001.
2 THE REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICE, CHENGANNOOR,
ALAPPUZHA DISTRICT, PIN-689121.
3 THE TAHSILDAR,
TALUK OFFICE, MAVELIKKARA, ALAPPUZHA DISTRICT,
PIN-691101.
4 THE VILLAGE OFFICER,
VILLAGE OFFICE, VVALLIKUNNAM, ALAPPUZHA,
PIN-690501.
SRI.K.J.MANU RAJ, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) No.3987 of 2020
3
ALEXANDER THOMAS, J.
===========================
W.P(C) No.3987 of 2020
===========================
Dated this the 03rd day of March, 2020
JUDGMENT
The case projected in this Writ Petition (Civil) is as follows:
The petitioners have purchased 1 Hector, 45 Ares and 45 Square Meters of property lying in Re-survey No.638/3, 638/4, 638/5, 638/6, 638/7, 638/8, 638/9, 638/10, 638/11, 639/3, 639/4, 639/5 of Vallikunnam Village, Mavelikkara Taluk. In the abovesaid property, there is a huge pond extending to more than 3.5 Ares which is formed due to excavation of clay. In the surrounding properties, there is hardly any agriculture activities are being conducted for the past more than 15 years. The petitioners purchased the above properties with a view to venture fish farming. The Fisheries Deputy Director has issued Ext.P-3 certificate of registration for conducting fish farming. Before getting registration from fisheries department, petitioners approached the 2nd respondent and filed Ext.P-4 application seeking permission to strengthen the mud boundary walls of the pond for the purpose of starting fish farming. On submission of Ext.P-4, the 2nd respondent has called for a report from 3rd and W.P(C) No.3987 of 2020 4 4th respondents. The 3rd and 4th respondents submitted detailed reports as evidenced by Exts.P-5 & P-6 respectively opining that there is no ecological imbalance if fish farming is permitted and that there is little agricultural activities are going on in the area. It was further reported that permission if any granted for fish farming in the area will not cause any hindrance to the natural ground water stream to the neighbouring properties. It was also stated in the report that permission for strengthening the mud boundary walls of the pond without causing any room for excavation of soil can be permitted in the area. However, the 2 nd respondent on an incorrect appreciation of the issue and is without any application of mind, rejected the proposal for starting aquaculture by Ext.P-7 order, by stating that since the properties are included in the data bank, the land cannot be permitted to be converted or changed. In the light of these averments and contentions, the petitioners have filed the instant Writ Petition with the following prayers:
"i) To issue a declaration that the Exhibit P7 impugned order issued by the 2nd respondent is without any application of mind, illegal and hence unsustainable in law.
ii) To issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading upto Exhibit P7 order and quash the same.
iii) To issue a writ of mandamus or any other appropriate writ or order directing the 2nd respondent to grant the reliefs sought in Exhibit P3 application.W.P(C) No.3987 of 2020 5
iv) To issue such other further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of this case."
3. Heard Sri.M.V.Thamban, learned counsel appearing for the petitioners and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents.
4. The case projected in this Writ Petition is essentially to the effect that there is a huge pond extending more than 3.5 Acres is formed due to excavation of clay and agricultural activities were being conducted in the said land for the past more than 15 years and that the petitioners have purchased the said properties with a view to undertake fish farming, for which they have obtained Ext.P-3 certificate of registration issued by the Fisheries Deputy Director for conducting fish farming. Now the petitioners wanted to do some reinforcement work, in order to strengthen the boundary wall of the pond, for which Ext.P-4 application has been submitted by the petitioners, pursuant to which Exts.P-5 & P-6 reports have been submitted by the 3 rd respondent-Tahsildar and the 4th respondent-Village Officer respectively in favour of the petitioners. However, now the request of the petitioners made out in Ext.P-4 has been rejected by the 2nd respondent-Revenue Divisional Officer as per the impugned Ext.P-7 order dated 27.01.2020 on the ground that such W.P(C) No.3987 of 2020 6 permission cannot be granted, as the activity proposed to be undertaken by the petitioners might result in change of the nature of the land, etc. It is the order at Ext.P-7 that is under challenge. From a perusal of the pleadings and materials on record and after hearing both sides, it is seen that the subject property was a pond, which was found due to excavation of clay. If that be so, prima facie it is really doubtful whether the subject property would fulfill the definition of "wetland" as per Sec.2(xviii) of the Kerala Conservation of the Paddy Land and Wet Land Act, 2008, which reads 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;"
5. The parameters for the fulfillment of the definition of Wet Land as per Sec.2(xviii) of the abovesaid 2008 Act has been dealt with in detail by this Court in various decisions as in Suraj K.S and another v. State of Kerala and others [2018 (1) KLT 1 = 2018 (1) KHC 250], Asma v. District Collector, Thrissur and others [2015 (1) KLT 30 = 2015 KHC 2389], etc. Prima facie, this Court also would venture to hold that merely because such a land is classified as wet land in the land data bank prepared as per the provisions of the 2008 Act, the same need not necessarily fulfill W.P(C) No.3987 of 2020 7 the definition of wet land as per Sec.2(xviii) of the said Act. On the other hand, it has to be verified and ascertained by the competent authority of the 2008 Act, as to whether such a subject property actually fulfills the various ingredients of the definition of the wet land as per Sec.2(xviii) of the 2008 Act and then only should include such subject property in the land data bank prepared as per the provisions of the 2008 Act as wet land. Be that as it may, it is the case of the petitioners that they owned the property and that they have secured necessary certificate of registration as per Ext.P-3 from the Deputy Director of Fisheries concerned, who undertaking fish farming in the said man made pond. According to the petitioners, as the owners of the said property, they want to take steps to ensure that necessary reinforcements is made, so as to strengthen the mud boundary of the said pond, for which Ext.P-4 application seeking such permission was submitted before the 2nd respondent-Revenue Divisional Officer. The 2nd respondent-RDO has now denied the said request as per Ext.P-7, taking the view that the activity sought for by the petitioner might result in change of the nature of the land. From a reading of the pleadings and materials on record as well as the impugned Ext.P-7 order, this Court is of the considered view that various relevant aspects of the matters has not been duly taken into consideration by the 2 nd respondent-RDO. So W.P(C) No.3987 of 2020 8 long as the competent officials of the Fisheries Department has granted permission to the petitioners to undertake fish farming in the said property. The activity of fish farming in the said pond cannot be said to be in any manner resulted in a situation of change of the nature of the land or change of the user of the land. On the other hand, the activity of fish farming may only augment the proper use of the said property. The issue as to whether the action on the part of the petitioners in making reinforcement, so as to strengthen the mud boundary of the pond would result in change of the nature of the land, cannot be decided by the 2nd respondent with any degree of expert precision. So long as, the activity proposed by the petitioners is only for strengthening the mud boundary of the pond, it cannot be said that the said activity would in any manner change the nature of the land or change the user of the land. Therefore, the matter requires serious re-consideration at the hands of the 2 nd respondent and it warrants a remit. For effectuating such a remit, the impugned Ext.P-7 order will stand set aside and rescinded. Ext.P-4 application will stand remitted to the 2nd respondent, for consideration and decision afresh. The petitioners may submit a fresh proposal to the 2nd respondent stating the nature of the steps that will be taken for strengthening the boundary of the mud wall. If the said steps to be taken by the petitioners is only for W.P(C) No.3987 of 2020 9 reinforcing and strengthening the mud boundary of the pond, it cannot be said to be in any manner changing the nature of the land or changing the user of the land. However, in case, the 2nd respondent will also take into consideration Exts.P-5 & P-6 reports submitted by the 3 rd respondent- Tahsildar and the 4th respondent-Village Officer.
6. In the light of these aspects, the matter should be reconsidered afresh by the 2nd respondent and necessary orders should be passed on Ext.P-4 application in the light of Exts.P-5 & P-6 reports, without much delay, preferably within a period of four weeks from the date of production of a certified copy of this judgment.
With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.
Sd/-
ALEXANDER THOMAS JUDGE vgd W.P(C) No.3987 of 2020 10 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SALE DEED DATED
29/01/2019.
EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT FOR THE YEAR
2018-2019.
EXHIBIT P3 TRUE COPY OF THE CERTIFICATE OF
REGISTRATION DATED 26/03/2019.
EXHIBIT P4 TRUE COPY OF THE APPLICATION SUBMITTED
BEFORE THE 2ND RESPONDENT DATED 06/03/2019.
EXHIBIT P5 TRUE COPY OF THE REPORT OF THE TAHASILDAR
DATED 08/05/2019.
EXHIBIT P6 TRUE COPY OF THE REPORT OF THE VILLAGE
OFFICER DATED 11/03/2019.
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION ISSUED BY
THE 2ND RESPONDENT DATED 27/01/2020.