IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 WP(C).No. 15687 of 2009(E) -------------------------- PETITIONER(S): ------------------ ABDUL SALAM, PALANJI KOCHUTHARAYIL, PADANAIRKULANGARA SOUTH, KARUNAGAPPALLY. BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL RESPONDENT(S): ------------------- *1. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. (*)THE NAME OF THE 1ST RESPONDENT IS DELETED FROM PARTY ARRAY AS PER ORDER DT.1.7.09 IN IA 7743/09) 2. REVENUE DIVISIONAL OFFICER, R.D.O OFFICE, CHENGANNOOR. 3. VILLAGE OFFICER, VILLAGE OFFICE, KRISHNAPURAM 4. AGRICULTURE OFFICER, AGRICULTURE OFFICE, KRISHNAPURAM, KAYAMKULAM. GOVERNMENT PLEADER SRI.DILEEP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.15687/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: A TRUE COPY OF THE SALE DEED DT 6.1.09. EXT.P2: A TRUE COPY OF THE SALE DEED DT 15.1.09. EXT.P3: A TRUE COPY OF THE PROPERTY TAX RECEIPT NO.12925. EXT.P4: A TREU COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P5: A TRUEC OPY OF THE 3RD RESPONDENT'S REPORT. EXT.P6: A TRUE COPY OF THE JUDGMENT DT20.3.09 IN WPC NO.9035/09. EXT.P7: A TRUE COPY OF THE 4TH RESPONDNET'S REPORT. EXT.P8: A TRUE COPY OF THE ORDER DT 4.5.09. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 15687 OF 2009 (E) ===================== Dated this the 9th day of September, 2009 J U D G M E N T The challenge in this writ petition is against Ext.P8. 2. Briefly stated, the facts of the case are that petitioner is the owner of 24 ares of land covered by Exts.P1 and P2 sale deeds which show that the property, which is situated in different survey numbers, is essentially a coconut garden. 3. According to the petitioner, although the land is a fully developed coconut garden, by lapse of time, the heaps of soil around the coconut trees had eroded and in order to maintain the plantation, he wanted to heap sand at the foot of the coconut trees and for that purpose, made Ext.P4 application to the 2nd respondent. 4. On Ext.P4, Ext.P5 report was obtained from the 3rd respondent, which shows that the 3rd respondent found that in the land in question, there was no paddy cultivation and that the land is a fully developed coconut garden. It is also stated that in the circumstances, for maintenance of the coconut garden, the request made by the petitioner was essential and should be WPC 15687/09 :2 : granted. Even thereafter, there was no progress in the matter and therefore the petitioner approached this Court by filing WP(C) No.9035/09 resulting in Ext.P6 judgment directing consideration of Ext.P4 in the light of Ext.P5 report submitted by the Village Officer. 5. After receipt of Ext.P6 judgment, again the 2nd respondent called for a report from the 4th respondent. Accordingly, the 4th respondent submitted Ext.P7 report which shows that the land in question is not suitable for paddy cultivation and that the request made by the petitioner was necessary for conservation of the coconut garden. 6. Thereafter the 2nd respondent passed Ext.P8, a final order stating that in view of the provisions contained in the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (Act 28 of 2008), he is not the competent authority to consider the request made by the petitioner. It is thereupon that this writ petition was filed challenging Ext.P8. 7. The main contention raised by the counsel for the petitioner is that to apply the provisions of Act 28 of 2008, the land in question should either be a paddy land or a wet land. It is contended that the land is neither a paddy land nor a wet land WPC 15687/09 :3 : and therefore the view taken in Ext.P8 is erroneous. 8. On the other hand, the learned Government Pleader contended that the land in question is a paddy land as per the entries in the revenue records and at any rate was a paddy land at some point of time in the past and therefore the view taken in Ext.P8 is justified. 9. I have considered the submissions made by both sides. 10. Evidently, Ext.P8 shows that the request of the petitioner was considered in the light of the provisions contained in Act 28 of 2008. Therefore, the correctness of Ext.P8 will depend upon the applicability of the provisions of the said Act to the land in question. To apply the provisions of the Act, the land in question should either be a paddy land or a wet land. Paddy land has been defined in Section 2(xii) of the Act and in terms of which the land should be one where paddy is cultivated atleast once in a year or it should be suitable for paddy cultivation but uncultivated and left fallow. A reading of Exts.P5 and P7 reports show that neither is the land cultivated with paddy nor is it suitable for paddy cultivation. If that be so, the land in question do not answer the description of paddy land as defined in Section 2(xii) of Act 28 of 2008. WPC 15687/09 :4 : 11. Wet land has been defined in Section 2(xviii) as 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. Going by what is stated in Ext.P8 or Exts.P5 and Ext.P7 reports, by no stretch of imagination can it be said that the land answers the description of Wet land as defined in the Act. 12. Consequently, the view taken in Ext.P8 that the request of the petitioner should be dealt with in terms of the provisions contained in Act 28 of 2008 cannot be sustained. Therefore, Ext.P8 will stand set aside and the 2nd respondent is directed to reconsider Ext.P4 in the light of Exts.P5 and P7 reports submitted by respondents 3 and 4 and pass orders thereon. This shall be done, as expeditiously as possible, at any rate within 4 weeks of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp