Research › Search › Judgment

Kerala High Court · body

2024 DIGILAW 510 (KER)

C. K. P. Thahira v. Village Officer

2024-05-10

MURALI PURUSHOTHAMAN

body2024
JUDGMENT : THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN The petitioners are co-owners in possession of property having an extent of 1 Hectare 82 Ares 5 Sq. Mtr comprised in Re.Sy. Block No. 115 (old 182), Re.Sy. No.2, Re.Sy. Sub Division No. 101, old Sy. No. 18, old Sy. Sub Division No. 1 of Thiruvangad Village, Thalassery Taluk by virtue of Ext. P1 partition deed. Though the said property is classified as 'Nilam' in the Basic Tax Register, it is not included in the data bank published under Section 5 (4) (i) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 [for brevity, 'the Act, 2008']. 2. The petitioners entered into Lease agreement with one Marsook, a fisherman, to conduct fish farming activity in one acre of petitioners' property lying beside the Kuiyally river. The fish farming project is approved by the Fisheries Department. When the lessee started strengthening of the outer bunds abutting the Kuiyally river, there were obstruction from certain local people. The 1st respondent, the Village Officer, issued Ext. P7 stop memo to the petitioners under Section 12(2) (b) of Act, 2008. Ext. P7 stop memo is challenged in the writ petition. 3. The petitioners contend that since the property is not included in the data bank as paddy land or wetland, the 1st respondent cannot require them to stop the fish farming activity in the land. The petitioners rely on the decision of this Court in Deepu v District Collector, Kollam [ 2022 (5) KHC 90 ] and contend that this Court has held that a garden land, though described as paddy land/ wetland in revenue records, the land owner can use the land as garden land in more profitable way by levelling the land or by importing the red earth/ordinary earth in the unnotified land or by developing the land being used as a playground. 4. The learned Government Pleader, on instructions, submits that the petitioners' property is not included in the data bank. However, there are mangroves in the property and therefore the property is to be treated as wetland and there is prohibition for reclamation of the property. 5. Section 3 of Act, 2008 provides for prohibition for conversion or reclamation of paddy land and reads as follows: “3. However, there are mangroves in the property and therefore the property is to be treated as wetland and there is prohibition for reclamation of the property. 5. Section 3 of Act, 2008 provides for prohibition for conversion or reclamation of paddy land and reads as follows: “3. Prohibition on conversion or reclamation of paddy land.- (1) On and from the date of commencement of this Act, the owner, or the person in custody of any paddy land shall not undertake any activity for the conversion or reclamation of such paddy land except in accordance with the provisions of this Act. (2) Nothing contained in sub-section (1) shall apply to the cultivation of any intermediary crops that are cultivated without changing the ecological nature of that paddy land or the strengthening of the outer bunds for protecting the cultivation.” Section 11 deals with prohibition on reclamation of wetland and reads as follows: “11. Prohibition on reclamation of wetland-On and from the date of commencement of this Act, the wetlands of the State shall be maintained as such and there shall be a total prohibition on reclamation of such wetland and removal of sand therefrom: Provided that nothing contained in this section shall effect the removal of slurry and mud to maintain the ecological condition of such wetland.” 6. Section 12(2)(b) of Act, 2008 provides that the authorised Officer (Village Officer) appointed by the Government, to prevent the commission of any offences under the Act, may require any person to stop any act in contravention of Section 3 or Section 11. 7. Ext.P7 stop memo is issued in a non statutory standard printed form with some dotted lines filled up. It refers to both paddy land and wetland, Section 3 as well as Section 11, leaving it to the Village Officer to strike off whichever is not applicable. The Village Officer has not struck off either. This shows the non application of mind in issuing Ext. P7. 8. It refers to both paddy land and wetland, Section 3 as well as Section 11, leaving it to the Village Officer to strike off whichever is not applicable. The Village Officer has not struck off either. This shows the non application of mind in issuing Ext. P7. 8. Paddy land has been defined under Section 2 (xii) of the Act, 2008 and reads as follows: “2(xii): ‘paddy land’ means all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals;” 9.Wetland is defined under Section 2(xviii) of the Act, 2008 and reads as under: '2(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.' The definition of 'wetland' includes ‘mangroves’, with the characteristic features as provided therein. However, admittedly, the subject land is not included as a paddy land or wetland in the data bank. Section 11 provides that, from the date of commencement of Act, 2008, viz; 12.08.2008, there is total prohibition on reclamation of wetland. The prohibition applies only if the land in question is included in the data bank. If it is not included in the data bank as a wetland or paddy land, there is no prohibition under law to utilise the land for any lawful purposes. Section 12(2)(b) of Act, 2008 empowers the village officer to require any person to stop any act in contravention of Section 3 or Section 11. If the property is not included in the data bank, merely because there are mangroves in the property, the same will not attract the prohibition under Sections 3 and 11 of Act, 2008. Accordingly, Ext. P7 stop memo is set aside. The writ petition is allowed as above.