Kerala High Court
Asma vs The District Collector on 25 November, 2014
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY,THE 25TH DAY OF NOVEMBER 2014/4TH AGRAHAYANA, 1936
WP(C).No. 23097 of 2014 (J)
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PETITIONER :
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ASMA, W/O.LATE ALIKUNJU, KOLLIYIL HOUSE, ERIYAD
KODUNGALLUR THRISSUR DISTRICT REPRESENTED BY
POWER OF ATTORNEY HOLDER DR.HAMEED ALI,
S/O.ALIKUNJU, RESIDING AT KOLLIYIL HOUSE, ERIYAD P.O.,
ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT.
BY ADV. SRI.P.M.ZIRAJ
RESPONDENTS :
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1. THE DISTRICT COLLECTOR,
THRISSUR, CIVIL STATION, THRISSUR-680001.
2. THE REVENUE DIVISIONAL OFFICER (R.D.O.)
THRISSUR-680001.
3. AGRICULTURAL OFFICER,ERIYAD P.O.,
KODUNGALLUR, THRISSUR DISTRICT-680666.
4. THE VILLAGE OFFICER
AZHEEKODE VILLAGE, THRISSUR DISTRICT-680666.
5. THE DISTRICT GEOLOGIST
THRISSUR DISTRICT-680001.
R1 TO R5 BY SENIOR GOVERNMENT PLEADER SRI. JOSEPH GEORGE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 25-11-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
bp
WP(C).No. 23097 of 2014 (J)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 : TRUE COPY OF THE BASIC TAX REGISTRAR DT.25-3-13 OF THE SAID
PROPERTY OF PETITIONER.
EXHIBIT P2 : TRUE COPY OF THE PONDS SITUATED IN THE PROPERTY OF THE
PETITIONER.
EXHIBIT P3 : TRUE COPY OF THE CERTIFICATE ISSUED BY R3 DT.25-4-2012 TO THE
PETITIONER CERTIFYING THAT HIS LAND IS NOT INCLUDED IN THE
DRAFT DATA BANK.
EXHIBIT P4 : TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT
DT.5-6-12 IN WPC 10985/12.
EXHIBIT P5 : TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER
BEFORE THE R2 DT.15-6-12.
EXHIBIT P6 : TRUE COPY OF THE REPORT ALONG WITH THE DOCUMENT
ATTACHED THEREWITH SUBMITTED BY THE ADDITIONAL TAHSILDAR,
KODUNGALLUR DT.4-7-12 BEFORE THE R2.
EXHIBIT P7 : TRUE COPY OF THE REPORT SUBMITTED BY THE R3 BEFORE THE R2
ALONG WITH THE COPY OF THE DRAFT DATA BANK DT.3-8-12.
EXHIBIT P8 : TRUE COPY OF THE ORDER DT.14-8-12 ISSUED BY THE R2 TO THE
PETITIONER.
RESPONDENT(S)' EXHIBITS : NIL.
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//TRUE COPY//
P.A.TO JUDGE
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A.MUHAMED MUSTAQUE, J.
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W.P.(C).No.23097 /2014
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Dated this the 25th Day of November, 2014
J U D G M E N T
The petitioner claims to be the owner of an extent of 2 Acres of property comprised in Survey Nos.60/1, 60/2 and 65 of Azheekode Village, Eriyad Panchayat in Thrissur District.
2. It is admitted that the property mentioned as above is included as wetland in the draft data bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, the "Act 28 of 2008").
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 W.P.(C).No.23097/2014 -:2:- 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. 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 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 pond dug in a dry land for the purpose of aquaculture.
W.P.(C).No.23097/2014 -:3:-
4. In the counter itself it is stated that the property in Survey No.65 is shown as nilam in the basic tax register. However, it is seen from Ext.P6 report of the Additional Tahsildar to the Revenue Divisional Officer that though the property in Survey No.65 is shown as nilam in the basic tax register, it is converted long before the enactment of the Act and further that the land situated in Survey Nos.60/1 and 2 is classified as purayidam in the basic tax register.
5. Therefore, I am of the view that the property situated in Survey Nos.60/1 and 2 is purayidam and the petitioner is free to reclaim the land and undertake any other construction activities in accordance with law. The inclusion of the land in Survey Nos.60/1 and 2 as wetland in the draft data bank is set aside. It is hereby declared that for all practical purposes, the property in Survey Nos.60/1 and 2 is declared as purayidam.
6. The property situated in Survey No.65 is shown as nilam in the basic tax register. Considering the W.P.(C).No.23097/2014 -:4:- fact that this property is reclaimed long ago before the enactment of the Act 28 of 2008, I am of the view that this property cannot also be included either as a paddy or as a wetland in the draft data bank. However, for the purpose of utilising the land in Survey No.65, petitioner requires permission under the Kerala Land Utilisation Order from the Collector. In that view of the matter, the petitioner shall approach the Collector for permission to utilise the land for other purposes. If the land in Survey No.65 is lying contiguous to the land in Survey Nos.60/1 and 2, necessary permission shall be granted to the petitioner to utilise the land for other purposes along with the other land in Survey Nos.60/1 and 2. Therefore, if the petitioner approaches the District Collector, Thrissur under Clause 6 of the KLUO seeking permission to utilise the land situated in Survey No.65 for other purposes within a period of 2 weeks from the date of receipt of a copy of this judgment, the application shall be considered in the light of the above within a further period of four weeks.
W.P.(C).No.23097/2014 -:5:- The writ petition is disposed of as above. No costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms