Merely having water logging does not qualify land as wetland; an independent assessment of land characteristics is required under the Kerala Conservation of Paddy Land and Wetland Act, 2008.

JUDGMENT :

(Ziyad Rahman A.A., J.)

The 1st petitioner is the owner in possession of property having an extent of 4.048 Ares of land in Re-Survey No.23/1G (old Survey No.25/3) of Kattooli Village, Kozhikode District. The 2nd petitioner is the owner of property having an extent of 12.24 Ares comprised in the very same Survey number. They have acquired the said properties by virtue of Exts.P1 and P2 documents. The grievance of the petitioners is that, the properties were included in the Data Bank as wetland, erroneously. In such circumstances, they submitted Exts.P8 and P9 applications in Form 5 which were considered by the 2nd respondent and Ext.P12 and P13 orders were issued. As per Exts.P12 and P13, the 2nd respondent found that the properties are wetland and therefore not liable to be excluded from the Data Bank. Challenging Exts.P12 and P13 orders this writ petition was submitted by the petitioners.

2. A statement is submitted by the respondent in response to the averments contained in the writ petition wherein, it is averred that Exts.P12 and P13 decisions were taken after inspecting the land and being found that there was water logging in the properties of the petitioners, even on non-rainy season. Therefore they sought to justify the stand taken by the 2nd respondent in Ext.P12 and P13.

3. Heard, Sri.Sandesh Raja. K, the learned counsel appearing for the petitioners and Smt. Deepa V, the learned Government Pleader appearing for the State.

4. The only question that arises for consideration is whether the Exts.P12 and P13 are legally sustainable. The specific case advanced by the learned counsel for the petitioners is that, Exts.P12 and P13 orders are non-speaking orders without specifically making any attempt to determine whether the properties of the petitioners have the characteristics of a ‘wetland’ as defined under Section 2(xviii) of Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as the 'Paddy Land Act'). The learned counsel for the petitioners also placed reliance upon the decision rendered by this Court in Mather Nagar Residents Association and Another v. District Collector, Ernakulam [2020 (2) KLT 192].

5. After carefully going through the contents of Exts.P12 and P13 orders, I find merits in the submission made by the learned counsel for the petitioners. It is discernible from the orders that, the 2nd respondent arrived at the conclusion by simply accepting the report submitted by the Village Officer, which was referred to therein as reference No.2. Apart from the adoption of the recommendations made by the Village Officer, no independent assessment of the nature of the property is seen made in the impugned orders. Besides, even going by the impugned orders, it can be seen that, what was mentioned in the report of the Village Officer was that, there is water logging in the property. In this regard it is to be noted that, the term ‘wetland’ is defined under Section 2(xviii) of the Paddy Land, which reads as follows:

“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;

6. Thus, going by the definition of the “wetland”, it is evident that, merely because, there is water logging in the area, the property cannot be treated as a wetland. It must satisfy all the characteristics specified in the definition referred to above. In this case, whether the properties of the petitioners are having the said characteristics mentioned in the definition of wetland as contained in Section 2(xviii) is not examined. The view taken by this court as above, is fortified by the observations made by a Division Bench of this court in Mather Nagar Residents Association