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IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
C.K.P. Thahira And Ors. – Petitioners
Versus
Village Officer And Ors. – Respondents
WP(C) NO. 15993 OF 2024
Decided On : 10-05-2024
KEYWORD - PROPERTY LAW - Kerala Conservation of Paddy Land and Wetland Act, 2008 - Sections 3, 11, 12(2)(b), 2(xii), 2(xviii) - The court interpreted the Kerala Conservation of Paddy Land and Wetland Act, 2008, emphasizing that the prohibition on reclamation of paddy land and wetland applies only to lands included in the data bank. The definitions of 'paddy land' and 'wetland' were crucial in determining the applicability of the law. The court concluded that since the petitioners' property was not included in the data bank, the stop memo issued by the Village Officer was invalid.
Fact of the Case:
The petitioners, co-owners of a property classified as 'Nilam', entered into a lease for fish farming. The Village Officer issued a stop memo under the Kerala Conservation of Paddy Land and Wetland Act, claiming the property was wetland due to the presence of mangroves.
Finding of the Court:
The court found that the property was not included in the data bank as paddy land or wetland, and thus the stop memo issued by the Village Officer was not valid. The definitions of paddy land and wetland were critical in this determination.
Issues: Whether the stop memo issued under the Kerala Conservation of Paddy Land and Wetland Act was valid given that the property was not included in the data bank as paddy land or wetland.
Ratio Decidendi: The court held that the prohibition on reclamation of paddy land and wetland only applies to lands included in the data bank. Since the petitioners' property was not included, the stop memo was set aside.
Final Decision: The writ petition was allowed, and the stop memo was set aside.
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:
(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. Paddy land has been defined under Section 2 (xii) of the Act, 2008 and reads as follows:
AI
The court determined that a stop memo issued under the Kerala Conservation of Paddy Land and Wetland Act is illegal if the property is not included in the official data bank.
A stop memo requiring permission for agricultural intent was overturned as the intention was deemed sufficient without prior registration under the Act.
The court emphasized the importance of respecting previous judgments and orders, and the impermissibility of reopening concluded judgments.
Authorised officer must independently assess land nature on 12.08.2008 using inspection or satellite imagery before rejecting exclusion from paddy land databank.
The main legal point established is that the Revenue Divisional Officer must independently assess the status of the land and consider the impact of removing the land from the Data Bank on paddy culti....
The court emphasized the need for independent assessment of the status of the land and consideration of its impact on paddy cultivation and wetlands when deciding on the exclusion of land from the Da....
The assessment of land suitability for paddy cultivation must be substantiated by comprehensive evaluations, including prior agricultural use and relevant statutory principles.
The competent authority must thoroughly assess the nature and suitability of the land for paddy cultivation before making exclusion decisions under conservation laws.
The authorized officer must conduct an independent inspection and evaluation of land character prior to exclusion from paddy land data bank.
Authorized officer must comply with statutory requirements when assessing land use classification under the Kerala Conservation of Paddy Land and Wetland Act.
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