Quashed

Shahid v. the Village Officer

Kerala HC17 Nov 2020WP(C)/19752/2020

Case brief

AI extract

What is this about?

The High Court of Kerala examined stay memos issued by the Village Officer against petitioners constructing on dry lands classified as such in revenue records. The Court held that ponds in lands recorded as dry lands do not constitute wetlands under the Act and quashed the memos for lack of jurisdiction.

What did the court decide?

Quashed impugned stop memos Exts.P4 and P5 for want of jurisdiction.

Shahid Vs the Village Officer — Environment and Pollution | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942

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WP(C).No.19752 OF 2020(T)

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PETITIONERS:

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1 SHAHID AGED 50 YEARS S/O. SYED MUHAMMED, ERATTAKULATHINGAL, ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR - 680666.

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2 SILBA

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AGED 47 YEARS

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W/O. SHAHID, ERATTAKULATHINGA, ERIYAD VILLAGE, KODUNGALLUR TALUK, TRISSUR - 680666.

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BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR

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RESPONDENTS:

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1 THE VILLAGE OFFICER ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR - 680000.

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2 THE AGRICULTURAL OFFICER KRISHI BHAVAN, ERIYAD VILLAGE,

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THRISSUR - 680666.

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R1-2 BY GOVERNMENT PLEADER

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SRI.PAUL ABRAHAM VAKKANAL – GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-112020, THE COURT ON 17-11-2020 DELIVERED THE FOLLOWING:

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WP(C).No.19752 OF 2020(T)

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P.B.SURESH KUMAR, J.

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W.P.(C) No.19752 of 2020

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Dated this the 17^th day of November, 2020.

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J U D G M E N T

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Petitioners are husband and wife. Among them,

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the first petitioner owns 1.72 ares of land and the second petitioner owns 2.02 ares of land. The lands of the petitioners are lying contiguous. It is stated by the petitioners that their lands are shown as dry lands in the Basic Tax Register, and the same are not included in the

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data bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008(the Act). The petitioners propose to put up a building in their lands. It is alleged by the petitioners that when they made the preparatory works in their lands for the construction proposed, the first respondent, the Village Officer has

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WP(C).No.19752 OF 2020(T)

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issued Exts.P4 and P5 stop memos alleging that they have partially filled up a pond existed in their lands, contravening the provisions of the Act. It is stated by the petitioners that Exts.P4 and P5 stop memos have been issued on the premise that the pond existed in the lands of the petitioners is a “wetland” falling within the scope of the Act. The petitioners challenge the stop memos in the writ petition. The case set out by the petitioners in the writ petition is that the pond existed in their lands would not fall within the scope of "wetland" as defined in the Act.

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A report has been filed by the first respondent in the matter stating, among others, that the petitioners attempted to reclaim the pond existed in their lands and if the pond in the lands is permitted to be reclaimed, the same would affect the water source of the people and lead to water logging in the area. It is stated in the report that the pond in the lands of the petitioners would fall within the scope of "wetland" in terms of the

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WP(C).No.19752 OF 2020(T)

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provisions of the Act.

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Heard the learned counsel for the

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petitioners as also the learned Government Pleader.

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Ext.P1 is the relevant page of the Basic Tax Register concerning the lands of the petitioners. Ext.P1 indicates that the lands of the petitioners are dry lands in terms of the entries in the Basic Tax Register. Ext.P2 series are the land tax receipts issued to the petitioners under the Land Tax Act. Ext.P2 series recite that the lands of the petitioners are dry lands. Ext.P3 is the notified data bank prepared under the Act in respect of the lands in the village. Ext.P3 does not contain the lands of the petitioners.

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As noted, the stand taken by the first respondent to justify the impugned stop memos is that the pond existed in the lands would fall within the scope of "wetland" in terms of the provisions of the Act. The question to be considered therefore is as to whether the pond, if any, existed in the lands of the petitioners would

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WP(C).No.19752 OF 2020(T)

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fall within the scope of "wetland" in terms of the provisions of the Act.

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The Act is one brought into force, among

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others, to sustain the ecological system. Section 2(xviii) of the Act defines “wetland” thus:

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(xviii) “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;”

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It is explicit from the extracted definition that the wetlands brought under the Act are natural lands lying between terrestrial and aquatic systems. The word 'systems' contained in the definition refers to ecosystem. In other words, natural lands lying between terrestrial ecosystems and aquatic ecosystems in the State alone are brought under the Act. Further, Rule 4(2)(a) of the Kerala Conservation of Paddy Land and Wetland Rules,

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WP(C).No.19752 OF 2020(T)

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2008 provides categorically that the "wetlands" to be included in the data bank prepared under the Act are "wetlands" shown in the revenue records as "wetlands".

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Rule 4(2)(a) of the said Rules reads thus :

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ഡഡററബറങങ തയറററകൽ - (1) x x x x x (2) (1)-)o ഉപചട്ടപ്രകറരരം നനിലവനിലുള്ള കൃഷനിഡയറഗഗ്യമറയ നനൽവയലുകളനടയരം തണണതടങളനടയരം വനിശദവനിവരങളടങനിയർ ഡഡററബറങങ തയറററക്കുന്നതനിഡലകങ തറനഴെപ്പറയന്ന നടപടനിക്രമരം പറലനിഡകണ്ടതറണങ, അതറയതങ:(എ ) സമനിതനികങ അധനികറരനിതയള്ള പ്രഡദശനത, നനിലവനിലുള്ള റവനന റനികറഡകർ ൾ പ്രകറരരം കൃഷനിഡയറഗഗ്യമറയ നനൽവയലറയനി ഡരഖനപ്പടതനിയനിടള്ള ഭമനിയനട വനിശദറരംശങൾ ബനനപ്പട്ട വനിഡലജങ ഓഫണസർ ബനനപ്പട്ട കൃഷനി ഓഫണസകങ നർ ൽഡകണ്ടതരം ഇതനിനന അടനിസറനതനിൽ കൃഷനി ഓഫണസർ, ഓഡരറ സലവരം പരനിഡശറധനിചങ പ്രസത സലരം ഇഡപ്പറൾ നനൽകൃഷനികങ അനഡയറജഗ്യമറയ നനൽവയൽ ആഡണറനയന്നങ പരനിഡശറധനിചരം തണണതടങനള സരംബനനിച റവനന റനികറഡകളനട അടനിസറനതനിർ ർ ൽ വനിഡലജങ ഓഫണസർ സലപരനിഡശറധന നടതനിയരം ഡബറദഗ്യനപ്പഡടണ്ടതരം അപ്രകറരരം പരനിഡശറധന നടതനി ഡബറദഗ്യനപ്പട്ട വനിവരങളനട അടനിസറനതനിൽ, കൃഷനി ഓഫണസറരം വനിഡലജങ ഓഫണസറരം കൂടനി നനൽവയലുകളനടയരം തണണതടങളനടയരം ഒര കരടങ ഡഡററബറങങർ തയറററകനി സമനിതനിയനട പരനിഗണനയങ സമപ്പനിഡകണ്ടതമറണങർ .

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The ponds and other similar water bodies in registered lands described in the Basic Tax Register as “dry lands”

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WP(C).No.19752 OF 2020(T)

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would not therefore, fall within the scope of "wetland" as

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defined in the Act.

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The impugned stop memos are therefore, vitiated for want of jurisdiction and the same are, accordingly, quashed. The writ petition is disposed of accordingly.

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Sd/P.B.SURESH KUMAR, JUDGE.

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WP(C).No.19752 OF 2020(T)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE BASIC TAX REGISTER (2 PAGES), MAINTAINED BY THE 1ST RESPONDENT, DATED 16.09.2020.

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EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE LAND TAX RECEIPTS(2 NOS) ISSUED BY THE 1ST RESPONDENT, DATED 30.04.2020 AND 08-07-2010.

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EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES OF THE DATA BANK PUBLISHED IN THE KERALA GAZETTE, EXTRAORDINARY. VOL. 57, DATED 24.03.2012 CERTIFIED BY THE 2ND RESPONDENT THAT THE PETITIONERS LANDS ARE NOT INCLUDED IN THE DATA BANK.

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EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE STOP MEMO ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER, DATED 16.09.2020.

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EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE STOP MEMO ISSUED BY THE 1ST RESPONDENT TO THE 2ND PETITIONER, DATED 16.09.2020.

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RESPONDENTS' EXHIBITS: NIL

Shahid v. the Village Officer

Case brief

What is this about?

What did the court decide?

Shahid v. the Village Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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