Dismissed

Guruvayur Municipality v. K.a.Padmakumar

Kerala HC10 Feb 2021RP/67/2021

Case brief

AI extract

What is this about?

This review petition was filed by the Guruvayur Municipality and Municipal Engineer to challenge the original judgment directing them to grant a building permit. The core issue was whether a land portion shown as a 'pond' in revenue records constituted 'wetland'/'unnotified land.' Relying on precedent, the court held garden ponds do not qualify as wetlands, dismissing the review.

What did the court decide?

Review petition dismissed; no relief granted to the respondents.

Guruvayur Municipality Vs K.a.Padmakumar — Land Acquisition | Kerala HC (2021)

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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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WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

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RP.No.67 OF 2021 IN WP(C). 33556/2019

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AGAINST THE ORDER/JUDGMENT IN WP(C) 33556/2019(T) OF HIGH COURT OF KERALA

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REVIEW PETITIONERS/RESPONDENTS 4 AND 5 IN THE WRIT PETITION:

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1 GURUVAYUR MUNICIPALITY

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GURUVAYUR P.O THRISSUR DISTRICT PIN 680 101 REPRESENTED BY ITS SECRETARY

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2 MUNICIPAL ENGINEER, GURUVAYUR MUNICIPALITY GURUVAYUR P.O, THRISSUR DISTRICT, PIN 680 101

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BY ADVS.

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SRI.K.K.CHANDRAN PILLAI (SR.) SMT.S.AMBILY

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RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 3 IN THE WRIT

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PETITION:

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1 K.A.PADMAKUMAR AGED 52 YEARS S/O. K. NARAYANAN NAIR, AKSHAYA T.C 38/1542, POOTHOLE, THRISSUR MANAGING DIRECTOR, THRISSUR BUILDERS PVT LTD TBPL ARCADE, KOTTAPPURAM ROAD, NEAR VYDHYUTH BHAVAN, THRISSUR 680 004

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2 REVENUE DIVISIONAL OFFICER, REVENUE DIVISION OFFICE, FIRST FLOOR, CIVIL STATION, CIVIL LANE ROAD, AYYANTHOLE, THRISSUR 680 003

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3 LOCAL LEVEL MONITORING COMMITTEE, GURUVAYUR MUNICIPALITY, REPRESENTED BY ITS CONVENOR, AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN, GURUVAYUR, THRISSUR DISTRICT, PIN 680 131

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4 VILLAGE OFFICER,

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GURUVAYUR VILLAGE P.O, THRISSUR DISTRICT PIN 680 101

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THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 10.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RP.No.67 OF 2021 IN WP(C). 33556/2019

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R.P. No.67 of 2021

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W.P.(C) No.33556 of 2019

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O R D E R

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Respondents 4 and 5 in the writ petition are the petitioners in this review petition.

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The parties and documents are referred to in this order, as they appear in the writ petition.

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The petitioner holds a land measuring 3.957 Ares in Guruvayoor Village. An application preferred by the petitioner for building permit to put up a building in the said land has been rejected by the fourth respondent Municipality on the ground that a portion of the land measuring 2.428 Ares is shown as a pond in the revenue records. The said decision of the Municipality was under challenge in the writ petition. This court took the view that in so far as the land of the petitioner is neither a paddy land nor a wetland, there cannot be any impediment in granting the building permit sought by the petitioner and consequently, disposed of the writ petition directing the Municipality to grant the building permit sought by the petitioner, if the application of the petitioner is otherwise in order.

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Respondents 4 and 5 in the writ petition, the Municipality and the Municipal Engineer seek review of the judgment on the ground that the portion of the land which is shown in the revenue records as pond would amount to an 'unnotified land' in terms of the provisions of the Kerala

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RP.No.67 OF 2021 IN WP(C). 33556/2019

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Conservation of Paddy Land and Wetland Act, 2008 (the Act) and a building permit can, therefore, be granted in respect of such a land only if the applicant obtains permission under Section 27A of the Act. According to respondents 4 and 5, this aspect of the matter has not been taken note of by this Court while disposing of the writ petition and hence this review.

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Heard the learned Senior Counsel for respondents 4 and 5 as also the learned counsel for the petitioner.

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No doubt, if the land of the petitioner satisfies the definition of <mark>unnotified land' in terms of the provisions of the Act, permission under Section 27A of the Act is required for seeking a building permit in respect of the said land. The short question therefore, is as to whether the portion of the land of the petitioner which is shown in the revenue records as 'pond' is liable to be treated as</mark> unnotified land' in terms of the provisions of the Act. The expression 'unnotified land' is defined in the Act thus:

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(xviiA) “unnotified land” means the lands within the area of jurisdiction of the Committee which have been included as paddy land or wetland in the basic tax register maintained in Village Offices, but are not notified as paddy land or wetland under subsection (4) of Section 5 or where data bank has not been published under the provisions of clause (i) of sub-section (4) of Section 5, the lands which have already been filled up on the date of commencement of this Act and are not paddy land according to the report of the Kerala State Remote Sensing Centre and the Local Level Monitoring Committee or where the report of the Kerala State Remote Sensing Centre is not available, lands which are not paddy land according to the report of the Local Level Monitoring Committee;”

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RP.No.67 OF 2021 IN WP(C). 33556/2019

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The case of respondents 4 and 5 is that since a portion of the land is shown as a pond in the revenue records, that portion is to be treated as a wetland under the Act and if that portion is treated as wetland, the same would satisfy the definition of 'un-notified land' since the same is not included as wetland in the data bank prepar ed under the Act. The scope of 'wetland' under the Act has been explained by this court in Suraj v. State Of Kerala, 2018 (1) KLT 1. Paragraph 11 of the said judgment reads thus:

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“11. The Act is one brought into force to conserve the Paddy land and Wetland in the State in order to promote growth in the agricultural sector and 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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As held by this Court in Asma v. District Collector (2015 (1) KLT 30), the wetlands brought under the purview of the Act are natural lands lying between terrestrial and aquatic systems. If one understands the scope of the definition in the context of the Act, It is evident that the word 'systems' contained in the definition refers to ecosystems. In other words, natural lands lying between terrestrial ecosystems and aquatic ecosystems in the State alone would fall within the ambit of the definition. If this was the legislative intention, the land which was was originally a paddy land, even if it is admitted so, would never fall within the definition of 'wetland' under the Act. The case of the organisation referred to above that the paddy land referred to by them in their report was interspersed by wetlands also would not improve the case of the petitioners in the light of the definition of 'wetland' contained in

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RP.No.67 OF 2021 IN WP(C). 33556/2019

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the Act. “(Underline supplied)

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If one understands the definition of 'wetland' contained in the Act in the light of the decision of this court in Suraj , it can be seen that a pond existing in a garden land would not satisfy the definition of 'wetland' and such lands were never intended to be brought in as wetland under the Act.

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In the said view of the matter, the ground on which respondents 4 and 5 seek review of the judgement is unsustainable and the review petition is therefore, dismissed.

Sd/-

P.B.SURESH KUMAR

JUDGE

Guruvayur Municipality v. K.a.Padmakumar

Case brief

What is this about?

What did the court decide?

Guruvayur Municipality v. K.a.Padmakumar

Case brief

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