Allowed

K.Sreedharan Namboothiri, v. the District Collector

Kerala HC6 Jun 2023WP(C)/12364/2022

Case brief

AI extract

What is this about?

In a writ petition, the High Court of Kerala set aside an order rejecting a petitioner's Form 5 application to remove his land from the wetland data bank due to lack of supporting material and directed reconsideration after proper inquiry.

What did the court decide?

Impugned order set aside; direction to reconsider Form 5 application after inquiries, notice to petitioner, and obtaining reports from Agricultural and Village Officers within three months.

K.Sreedharan Namboothiri, Vs the District Collector — Environment and Pollution | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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TUESDAY, THE 6TH DAY OF JUNE 2023 / 16TH JYAISHTA, 1945

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WP(C) NO. 12364 OF 2022

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PETITIONER:

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K.SREEDHARAN NAMBOOTHIRI, AGED 65 YEARS S/O. VISHNU NMBOOTHIRI, KIZHINIPURATH ILLAM, VELLIPARAMB P.O., KUTTIKATTOOR VILLAGE, KOZHIKODE 673 008.

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BY ADVS.
SUNIL KUMAR M.
ANISH ANTONY ANATHAZHATH
T.KRISHNANUNNI (SR.)

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR, CIVIL STATION P.O., KOZHIKODE 673 020.

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2 THE REVENUE DIVISIONAL OFFICER, CIVIL STATION P.O., KOZHIKODE 673 020.

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3 THE TAHSILDAR, TALUK OFFICE, CIVIL STATION P.O., KOZHIKODE 673 020.

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4 THE VILLAGE OFFICER, KUTTIKKATTOOR VILLAGE OFFICE, KOZHIKODE 673 008.

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5 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, PERUVAYAL, KOZHIKODE 673 008. SMT.DEEPA NARAYANAN, SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO.12364 OF 2022

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JUDGMENT

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Dated this the 6^th day of June, 2023

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This writ petition is filed seeking the following prayers:

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“(i) to issue a writ of mandamus or any other appropriate writ, order or direction to set aside the Exhibit P6 order issued by the 2^nd Respondent in the Exhibit P4 (Form 5) application submitted by the petitioner.

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(ii) Issue a writ of Mandamus or any other appropriate order, writ or direction directing the 2^nd respondent to pass orders for allowing Form 5 application submitted by the petitioners and making necessary corrections in the revenue records after removing the properties of the petitioners from the data bank”

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Heard the learned counsel for the petitioner and the learned

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Government Pleader.

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It is submitted by the learned counsel for the petitioner that the petitioner had submitted an application in Form 5 for removal of his property having an extent of 41.27 Ares in Re-Survey No.6/2 of Kuttikatoor Village in Kozhikode Taluk from the data bank prepared under the provisions of the Kerala Conservation of Paddy Land and

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Wetland Act, 2008 (hereinafter referred as ‘the 2008 Act’). It is submitted that the application had been considered as directed by this Court and the petitioner had obtained a KSREC report which is

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WP(C) NO.12364 OF 2022

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produced as Ext.P5. It is stated in Ext.P5 that the land in possession was fallow land in the satellite image taken in the year 2002 and that it was observed that the same trend in land-use practices continued with constructional activities towards northern side in the year 2015 and 2017. It is submitted by the learned counsel for the petitioner that the rejection of the application submitted by the petitioner by Ext.P6 is on the finding that the inclusion in the data bank is correct. It is submitted that Ext.P5 report does not support such a finding. It is stated that the petitioner’s property is included in the data bank as wetland and the finding in Ext.P5 is that it was observed as paddy land in 1967 and was observed as fallow land in the data of the year 2002. The learned counsel for the petitioner submits that if the property is recorded as wetland, then, the fact that it was found to have been lying fallow in 2002 would lead to the conclusion that it had lost its character as wetland long before the enactment of the 2008 Act. It is submitted that there was no prohibition for reclamation of the wetland before the 2008 Act came into force and that the nature and lie of the land when the Act came into force is what is to be considered while considering

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WP(C) NO.12364 OF 2022

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an application for removal of the property from the data bank. It is contended that the definition of wetland as given in Section 2(xviii) of the 2008 Act would make it clear that it is completely distinct and different from paddy land and that the order passed stating that the property was fallow land in 2002 would make it clear that it could not have been wetland.

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Reliance is placed on the decisions of a Division Bench of this Court in Jafarkhan v. K.A. Kochumakkar and others [2012 (1) KHC 523] and pointedly on a decision of this Court in Mather Nagar Residents Association v. The District Collector, Ernakulam [2020 (2) KHC 94]. The learned counsel for the petitioner would place specific reliance on paragraphs Nos.20, 21 and 22 of the said judgment to contend that in case a property has been included in the data bank as wetland, it must answer the definition of wetland as contained in Section 2(xviii) and if not, orders exempting the property are liable to be passed.

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Having considered the contentions advanced on either side and

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in the light of the definition of wetland in Section 2(xviii) of the 2008

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WP(C) NO.12364 OF 2022

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Act as also the decisions of this Court relied on by the learned counsel for the petitioner, I am of the opinion that the findings in Ext.P6 are unsupported by any material and are totally unjustifiable.

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The impugned order is therefore set aside. There will be a direction to the respondents to reconsider the application submitted by the petitioner in Form 5 after obtaining due instructions from the Village Officer and after ascertaining the actual categorization of the land in the Basic Tax Register. The petitioner shall also be put on notice and heard before orders are passed. Appropriate orders shall be passed after considering the KSREC report as also looking into the Basic Tax Register and all relevant documents and obtaining reports of the Agricultural Officer and the Village Officer within a period of three months from the date of receipt of a copy of this judgment.

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This writ petition is ordered accordingly.

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Sd/-

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ANU SIVARAMAN

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JUDGE

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NP

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WP(C) NO.12364 OF 2022

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APPENDIX OF WP(C) 12364/2022

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PETITIONER’S EXHIBITS
Exhibit P1TRUE COPY OF DOCUMENTS NO 1009/1993 OF SRO
MAVOOR DATED 18.05.1993.
Exhibit P2TRUE COPY OF POSSESSION CERTIFICATE DATED
16.09.2020 ISSUED BY VILLAGE OFFICER TO
PETITIONER.
Exhibit P3TRUE COPY OF TAX RECEIPT DATED 21/5/2022
ISSUED TO THE PETITIONER.
Exhibit P4TRUE COPY OF FORM 5 APPLICATION DATED 22.9.20
SUBMITTED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT.
Exhibit P5TRUE COPY OF KSREC REPORT DATED 11.02.2021
ISSUED TO THE PETITIONER.
Exhibit P6TRUE COPY OF THE REJECTION ORDER DATED
1.7.2021 ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONER.
EXHIBIT P7TRUE COPIES OF PHOTOGRAPHS OF LAND
EXHIBIT P8A TRUE COPY OF SATELLITE IMAGE OF THE LAND
AND SURROUNDINGS
RESPONDENTS’ EXHIBITS: NIL

K.Sreedharan Namboothiri, v. the District Collector

Case brief

What is this about?

What did the court decide?

K.Sreedharan Namboothiri, v. the District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

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