Suraj K.S vs State Of Kerala on 27 November, 2017
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
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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
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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
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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.