Dismissed

The Local Level Monitoring Committee for Kozhicode Corporation v. P.v.Ali Mubarq

Kerala HC29 Sept 2021WA/1239/2021

Case brief

AI extract

What is this about?

En banc, the High Court dismissed a writ appeal challenging a Single Judge's order quashing the inclusion of a petitioner's dry land in the data bank under the Kerala Conservation of Paddy Land and Wetland Act, 2008, affirming the property did not constitute a wetland.

What did the court decide?

The appeal is dismissed as the appellant failed to establish error of jurisdiction by the learned Single Judge.

The Local Level Monitoring Committee for Kozhicode… — Land Acquisition | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 29^TH DAY OF SEPTEMBER 2021 / 7TH ASWINA, 1943 WA NO. 1239 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 13297/2019 DATED 18.02.2021 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANT/S:

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THE LOCAL LEVEL MONITORING COMMITTEE FOR KOZHICODE CORPORATION REPRESENTED BY ITS CONVENER, THE PRINCIPAL AGRICULTURAL OFFICE/AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN, PUTHIYARA, KZHIKODE-673 004

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BY SRI. S.RANJITH, SENIOR GOVERNMENT PLEADER

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RESPONDENT/S:

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P.V.ALI MUBARQ AGED 50 YEARS S/O. ALAVIKUTTY, PEE VEE HOUSE, NILAMBUR P.O., MALAPPURAM DISTRICT-679 3030

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SRI. BINOY VASUDEVAN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA NO. 1239 OF 2021

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JUDGMENT

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SHAJI P.CHALY, J.

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The sole respondent in W.P.(C).No.13297/2019 has filed this appeal challenging the judgment of the learned Single Judge dated 18.02.2021, whereby, the learned Single Judge quashed Ext.P12 order issued by the Agricultural Field Officer, Krishi Bhavan, Kozhikode, dated nil, whereby, a decision was taken that, since the property owned by the writ petitioner is surrounded by wetland, the property of the writ petitioner cannot be removed from the data bank constituted as per the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, (in short, 'the Act, 2008) and also that the property of the writ petitioner is an ecologically fragile land and if it is reclaimed, it would seriously affect the mangroves in the vicinity and it would adversely affect the ecosystem therein. Learned Single Judge, after taking into account the rival submissions, has arrived at the conclusion that the order passed by the Agricultural Officer for and on behalf of the appellant, cannot be sustained under law, since the property in question belonging to the writ petitioner can never be said to be a wetland in accordance with the provisions of the Act, 2008. Brief material facts for the disposal of the appeal are as follows:

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It was the contention of the writ petitioner that he was holding an extent of 2.05 acres in resurvey Nos 989/1 and 989/2 of Kasaba village, Kozhikode Taluk, which is a pucca dry land and is located in the heart of Kozhikode town. He submitted an application for the construction of a commercial building in the property before the Secretary of the Kozhikode Municipal Corporation. The Secretary of the Corporation rejected the application submitted by the petitioner by Ext.P5 order on the ground that, the property is located in a paddy zone as per the detailed town planning scheme of the said authority, and also on the ground that it is described as “Asthira Puncha” in the possession certificate. Petitioner challenged Ext.P5 before this Court and as per Ext.P6 judgment dated 13.08.2015, the writ petition was allowed and Ext.P5 order was quashed, and accordingly, directed the Corporation to reconsider the application submitted by the petitioner for building permit de hors Ext.P5 order, within a period of one month from the date of receipt of a copy of the judgment. Writ petitioner was also directed to cure the other defects pointed out by the Secretary of the Corporation within the time period specified by the respondent Municipality.

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It is the case of the petitioner that, at that time, the Corporation informed the petitioner that, since the property is included in the data bank constituted as per the Act, 2008, the application cannot be

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considered . Petitioner immediately preferred Ext.P7 application dated 10.09.2015, seeking to remove the property from the data bank. Apparently, since the application was not considered, a writ petition was filed and secured Ext.P8 judgment dated 15.10.2015 in W.P.(C). No.3060/2015, whereby, the appellant was directed to consider the application submitted by the writ petitioner within two months from the date of receipt of a copy of the judgment. However, the appellant rejected the application submitted by the petitioner which was challenged by the petitioner preferring W.P.(C). No.6760/2016. In the said writ petition, an Advocate Commissioner was appointed, who had submitted a report indicating that the property is a dry land. Thereafter, as per an interim order, the report of the Kerala State Remote Sensing and Environment Centre (KSREC) was also called for. However, the report was not submitted by the appellant. It seems, the petitioner himself applied for the report under the provisions of Right to Information Act, and produced before the writ court. After verifying the report, the order of the appellant was set aside and directed to reconsider the application, on the basis of the reports, of KSREC, the Advocate Commissioner, and after hearing the petitioner as well. Since no action was initiated, a contempt application was preferred in which the convenor of the appellant was directed to appear in person, and at that point of time, without hearing

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the petitioner and without adverting to the report of the Advocate Commissioner, Ext.P12 order was passed. It was thus challenging the legality and correctness, the writ petition in question was preferred and the writ court has set aside the order and directed the appellant to remove the property from the data bank.

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In this appeal, the legality and correctness of the judgment of the learned Single Judge is challenged, basically contending that the Local Level Monitoring Committee is the competent authority to include a property in the Data Bank, either as Paddy Land or WetLand ; that Section 5 of the Kerala Conservation of Paddy Land and WetLand Act, 2008 has given power to the Local Level Monitoring Committee to prepare a Data Bank and publish the same in the Gazette ; that the filling up of Paddy Lands/WetLands, are prohibited in the Act ; that all cultivable paddy lands and wetlands are to be included in the data bank ; that the Local Level Monitoring Committee has to consider the status of the land alone and ; that if at all the property is classified as dry land in the revenue records like the Basic Tax Register, the Local Level Monitoring Committee has power to include the property in the data bank, if the same is either a paddy land or wetland. Therefore according to the appellant , the finding of the learned Single Judge is contrary to law and is liable to be set aside. It is further submitted that there are full

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Mangroves in and around the property and in the KSREC report, the property is referred to as “Mixed Vegetation” only due to the presence of Mangroves, however the learned Single Judge misunderstood the findings recorded in the KSREC report and held that the property is a converted land. The learned Single Judge ought to have found that the property has the characteristics of a wetland in the light of the KSREC report and also on the basis of the report of the Agricultural Field Officer. It is also contented that the petitioner attempted to fill up the property by depositing red soil and the Village Officer issued a stop memo. The same would show that the petitioner attempted to convert the property after 2008. Therefore, the learned Single Judge ought to have upheld the decision of the Local Level Monitoring Committee. It is further submitted that if the property of the petitioner is allowed to be filled up, the same will adversely affect the ecological balance in the area; that there is a canal on the side of the property of the petitioner and ; that flow of water is adversely affected due to illegal filling up of the property. However, it is submitted that the learned Single Judge fell in error in allowing the writ petition and setting aside the findings of the Local Level Monitoring Committee.

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We have heard, learned Senior Government Pleader, Sri. S. Ranjith, and the learned Counsel appearing for the writ petitioner, Sri.

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Binoy Vasudevan and perused the pleadings and materials on record.

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The sole question emerging for consideration is whether any interference is required to the judgment of the learned Single Judge. In order to have a clear understanding for appreciation of the facts, circumstances and the law, it is better that English translation of Ext.P12 order passed by the statutory authority in vernacular is extracted, it reads thus:

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“ The land consisting of 2 acres and 5 cents in resurvey No; 989/1, 989/2 of Kasaba Village mentioned in your petition mentioned in reference no.1 is examined by LLMC members.

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There are almost 40 years old 25 coconut trees and other miscellaneous trees is there on the side of the land mentioned in the petition. One acre of wetland consisting of mangrove is situated on its northern side. One acre of wetland consisting of mangrove is situated on its south-east side and a canal is situated on its southern side. A converted land is there at its western side and bye-pass road is situated on its eastern side. KP Chandran road is situated approximately 30 meters east away from the northern side of this land. The nature of the land was marked as Asthira Puncha in village records. The mangrove forest is situated nearby is also marked in the category of Asthira Puncha in the village records.

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It was explained by KSREC Director in report No.A/172/2015/KSREC dated 12/02/2018 that since 1967 fallow

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mixed vegetation is practised in the land in resurvey number 989/1 and which is continued in this land till 2007.

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It was explained by KSREC data of 2003 that fallow mixed vegetation is practised in the land of resurvey number 989/2 and which is continued in this land till 2007.

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The water flow of the canal situated on the eastern side of this land is blocked due to filling with soil. It is seen that a stop memo was issued by the village officer against the filling of the land by gradual filling of soil since 2008. This is to inform that the committee for conservation of paddy land and wetland of Kozhikode Corporation presided over by Sree Thottathil Raveendran, worshipful mayor, Kozhikode corporation has unanimously decided that this land should not be removed from the data bank since this land is surrounded by wetland; it is an ecologically fragile land and if it is reclaimed it would seriously affect the mangroves in the vicinity and it would adversely affect the ecosystem therein.”

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On a perusal of the said order, what we could gather is that, the property in and around the property belonging to the petitioner are fallow lands, paddy fields, wet lands, water courses, etc. However, the property belonging to the petitioner is dry land, even though in the Village records it is shown as “Asthira Puncha”. This Court had occasion to consider the inclusion of the property in the data bank as constituted under the Act, 2008, and having found that there was justification on the part of the writ petitioner in challenging the previous order passed by the Secretary of the

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Kozhikode Corporation and the order passed by the appellant, an Advocate Commissioner was appointed in order to ascertain the nature and lie of the property in question and also sought for the report from the KSREC. Taking into account the facts and circumstances and the law involved, the appellant was directed to reconsider the application submitted by the petitioner after setting aside the order passed. It is also clear from the material on record that, when a contempt petition was filed, overlooking the directions contained in Ext.P11 judgment in W.P. (C).No.6760/2016 dated 27.09.2018, without hearing the writ petitioner, an order was passed. It is also equally important to note that the findings rendered by the appellant shows that the property in question is remaining as dry land, even though the properties in and around the property in question are paddy fields/wet land/water courses. Wet land is defined under Section 2 (xviii) as follows:

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“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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Merely because the property is lying nearby a property having the

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characteristics of a paddy land/wet land or water channels, or water accumulating in the property seasonally would not in any manner interfere and alter the characteristics of a dry land enjoyed by an owner of the property. Further, the definition of wetland under the Act 2008 shows that in order to constitute a property as a wetland, it should lie between the 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, etc, but does not include paddy land and rivers. The definition further exemplifies that a property should have such characteristics in order to constitute a wetland and not due to nearby properties having the features of wetland. This was exactly the point considered by the learned Single Judge and arrived at the conclusions in order to quash Ext.P12 impugned order passed by the statutory authorities. Even though learned Senior Government Pleader pointed out that the appellant is not bound to look into the report of the KSREC, we cannot agree with the same because a draft data bank is prepared and thereafter, enquiry will have to be conducted in contemplation of the act also securing a report from the KSREC. It was after conducting a threadbare analysis of the provisions of the act 2008 and the rules thereto, the learned Single Judge has arrived

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at the conclusions . It is significant to note that in the final data bank constituted under the Act, 2008, the property is shown as unoccupied dry land and if that was so, the appellant could not have included the property in the data bank.

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Taking into account the above said factual and legal aspects, we are of the considered opinion that the appellant has not made out any case of error of jurisdiction in exercising the discretion by the learned Single Judge conferred under Article 226 of the Constitution of India, or any other legal infirmities calling for our interference in an intra court appeal.

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The appeal fails and accordingly it is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY JUDGE

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29.09.2021

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WA NO. 1239 OF 2021

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APPENDIX OF WA 1239/2021

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PETITIONER ANNEXURE

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Annexure A1 PHOTOGRAPHS SHOWING THE

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LIE AND NATURE OF THE PROPERTY

The Local Level Monitoring Committee for Kozhicode Corporation v. P.v.Ali Mubarq

Case brief

What is this about?

What did the court decide?

The Local Level Monitoring Committee for Kozhicode Corporation v. P.v.Ali Mubarq

Case brief

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