Dismissed

Yaser v. the Revenue Divisional Officer

Kerala HC7 Aug 2019WP(C)/19743/2019

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a writ petition filed by a landowner seeking a mandamus to allow construction of a residential house on paddy land acquired in 2015. The Court held that since the Act prohibiting such construction was in force at the time of acquisition, no statutory guarantee provides a legal right to be directed to carve an exception to the law, and thus a writ cannot be issued to

What did the court decide?

Writ petition dismissed; no relief granted to the petitioner to construct a residential house on the paddy land.

Yaser Vs the Revenue Divisional Officer — Land Acquisition | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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WEDNESDAY, THE 07TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941

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WP(C).No.19743 OF 2019(P)

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PETITIONER/S:

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YASER AGED 35 YEARS S/O.MUHAMMADALI,CHEMBAKASSERY HOUSE, COLONYPADY,ESTATE ROAD,ERUMATHALA.P.O, KEEZHMADU,ALUVA-683112.

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BY ADVS. SRI.RENJITH B.MARAR SRI.SADCHITH.P.KURUP SRI.P.B.SUNEER SMT.LAKSHMI.N.KAIMAL SMT.SINDHU K.S. SRI.C.P.ANIL RAJ

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RESPONDENT/S:

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1 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE,FORT KOCHI-682002.

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2 THE DISTRICT LEVEL AUTHORISED COMMITTEE, REPRESENTED BY ITS CONVENER,PRINCIPAL AGRICULTURAL OFFICER,ECHAMUKU, KUNNUMPURAM,PADAMUGHAL,VAZHAKKALA, KAKKANAD-682030.

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3 THE LOCAL LEVEL MONITORING COMMITTEE, REP.BY ITS CONVENER,AGRICULTURAL OFFICER,KRISHI BHAVAN,KUNNUKARA, ERNAKULAM DISTRICT-683578.

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4 THE VILLAGE OFFICER, KUNNUKARA VILLAGE OFFICE, KUNNUKARA-683578.

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OTHER PRESENT:

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SRI. MANURAJ K.J., GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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The petitioner, who is stated to be the owner in possession of a land having an extent of 02.71 Ares comprised in survey No.623/3 of Kunnukara Village, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the second respondent to take a decision on the recommendation sent by the third respondent as regards the case of the petitioner and dispose of the same in accordance with law within a time limit to be prescribed by this Court. The petitioner has also sought for a writ of mandamus commanding the respondents to allow the application preferred by the petitioner by allowing him to construct residential house in his property having an extent of 02.71 Ares comprised in survey No.623/3 of Kunnukara Village in Ernakulam District.

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On 19.07.2019, when this writ petition came up

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for admission, the learned Government Pleader sought time to get instruction.

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On 05.08.2019, when this writ petition came up

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for consideration, the learned Government Pleader on instruction submitted that the petitioner had purchased the property covered by Ext.P1 application in the year 2015, after the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008.

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Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents.

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The averments in the writ petition would show that the petitioner had earlier approached this Court in W.P. (C)No.11627 of 2016 seeking an order directing the concerned Local Level Monitoring Committee to consider and take a decision on his application for correction of data-bank and the said writ petition was disposed of by directing that Committee to take decision, within the time limit stipulated in that judgment.

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Though, in this writ petition, the petitioner has not disclosed the date on which he purchased the property in question, the learned Government Pleader would point out that, as seen from Ext.P4 location sketch prepared by the Village Officer, the petitioner acquired title over the property, on the strength of document No.4168/2015 of the Sub Registrar Office, Chengamanadu. The fact that the petitioner acquired the property in question only in the year 2015 is not disputed by the learned counsel for the petitioner.

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As per clause (i) of sub-section (3) of Section 5 of the Kerala Conservation of Paddy Land and Wetland Act, the Local Level Monitoring Committee shall have the power, subject to the provisions of the said Act, to recommend to the District Level Authorised Committee for the reclamation of paddy land, for construction of residential building of the owner of the paddy land. As per the proviso to clause (i), the Local Level Monitoring Committee shall not recommend for filling of paddy land of more than an extent of 4.04 Ares

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in Panchayat or an extent of 2.02 Ares in

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Municipality/Corporation area, as the case may be, for the construction of residential building of the owner of the paddy land.

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Section 9 of the Act deal with constitution of District Level Authorised Committee. As per sub-section (1) of Section 9, notwithstanding anything contained in Section 3, each Collector shall constitute in the District, District Level Authorised Committee for considering the applications for reclamation of paddy land for the construction of residential building to the owner of paddy land and for taking suitable decision. As per proviso to sub-section (1) of Section 9, the District Level Authorised Committee shall not take any decision granting permission for the filling up of paddy land for the construction of residential building exceeding an extent of 4.04 Ares in a Panchayat and an extent of 2.02 Ares in a Municipality/Corporation, as the case may be. As per sub-section (5) of Section 9, the District Level Authorised Committee shall take decision on

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the recommendations made available to it within one

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month.

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As per sub-section (8) of Section 9 of the Act, notwithstanding anything contained in sub-section (1), no application shall be considered by the District Level Authorised Committee, unless the Local Level Monitoring Committee has recommended that such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land; the owner of the paddy land or his family do not own a suitable land for this purpose in that District; the building to be constructed is for his own purpose; and such paddy land is not situated surrounded by other paddy lands. As per sub-section (9) of Section 9, the order issued by the District Level Authorised Committee under sub-section (5) or the District Collector under sub-section (7) shall clearly indicate the survey number of the land and the extent of the land in each survey number for which sanction has been accorded. A sketch of such land indicating the aforementioned details

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shall be appended to the order.

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As per sub-rule (1) of Rule 5 of the Kerala

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Conservation of Paddy Land and Wetland Rules, 2008, an application for reclamation of paddy land for the construction of residential building for the owner of the paddy land shall be submitted before the Local Level Monitoring Committee in Form No.1, after remitting the requisite Court fee of Rs.10/-. As per sub-rule (2) of Rule 5, the Local Level Monitoring Committee has to obtain an enquiry report from the Agricultural Officer and Village Officer on the matters enumerated in sub-section (7) of Section 9 and thereafter, place that application before the District Level Authorised Committee with its recommendations. Then, the District Level Authorised Committee shall take a decision on that recommendation made by the Local Level Monitoring Committee, within the time limit specified in sub-rule (2) of Rule 5. In the application submitted in Form No.1, the applicant has to give a declaration that such reclamation shall not adversely

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affect the ecological condition and the cultivation in the adjoining paddy land; the applicant, who is the owner of the paddy land or his family do not own a suitable land for this purpose in that District; the building to be constructed is for his own purpose; and such paddy land is not situated surrounded by other paddy lands.

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In Thankachan K.S. v. District Collector, Alappuzha and others [2017 (3) KHC 402] , in the context of sub-section (8) of Section 9 of the Kerala Conservation of Paddy Land and Wetland Act, this Court held that the purpose of exemption is for building a residential house in a paddy land held by the owner. The specific word employed in Section 9 of the Act is 'considering the applications for reclamation of paddy land for the construction of residential building to the owner of the paddy land'. The intention is to provide the cultivator/farmer/agriculturist with a residence within his cultivable paddy land. A property purchased for the purpose of constructing residential building, after

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implementation of the Kerala Conservation of Paddy Land and Wetland Act, 2008, cannot be exempted. Such an exercise could lead to gross misuse, since, then, large extents of paddy land could be cut up into small properties and sold to different individuals, who could then separately seek exemption. Different members of a family could also claim exemption for small tracts of land, out of a commonly held paddy land; citing a desire to have an independent existence. That would be defeating the very object of the enactment, which has the preservation of paddy lands at its core. If each member of the family is excluded, then the statutory restriction would be rendered in effective and otiose. Paragraphs 5, 6 and 7 of the said decision read thus;

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“5. The petitioner relies on a decision of this Court, reported in Joseph Thomas v. Agricultural Officer, Alappuzha and others, 2015 (5) KHC 103. A reading of the decision indicates that 'Family' as referred under S.9(8)(ii) of the Paddy Land Act was found to be the family consisting of applicant, his wife and children and it cannot be stretched to an extent to include his father or grandfather. On facts the

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present case can be distinguished. In the present case, the father claims exemption and the rejection has been on the ground that the family has another property. If each member of the family is excluded according to the person before Court, then, the statutory restriction would be rendered ineffective and otiose.

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It is also to be noticed that the purpose of exemption is for building a residential house in a paddy land held by the owner. The specific words employed in Section 9 of the Paddy Land Act is '... considering the applications for reclamation of paddy land for the construction of residential building to the owner of paddy land' (emphasis supplied). The intention is to provide the cultivator/farmer/ agriculturist with a residence within his cultivable paddy land. Here, about 10 cents of paddy land was purchased by the petitioner for the purpose of constructing a residential building, that too, in 2014 after the implementation of the Kerala Conservation of Paddy Land and Wetland Act, 2008. It is the said land which was sought to be exempted.

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Such an exercise could lead to gross misuse, since, then, large extents of paddy land could be cut up into small properties and sold to different individuals, who could then separately seek exemption. Different members of a family could also claim exemption for small tracts of land, out of a commonly held paddy land; citing a desire to have an independent existence. That would be defeating the very object of the enactment, which has the preservation of paddy lands at its core. This Court is not inclined to permit such exemption, especially since both the LLMC and DLAC

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has declined the claim and a contrary direction would go against the clear statutory interdict.”

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In Vinod Kumar v. District Geologist and

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others [2019 (3) KHC 79] in the context of Rule 14 of the Kerala Minor Mineral Concession Rules, 2015, this Court held that if the application made seeking permission under sub-rule (2) of Rule 14 for mineral transit pass is not supported by the mandatory documents as per the proviso to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, it cannot be said that there is any failure on the part of the District Geologist in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus for considering that application. When the application made by the petitioner is not supported by the mandatory documents, as per the provisos to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of subrule (3) of Rule 14, this Court cannot direct the District

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Geologist to consider that application in contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law. Paragraphs 9 to 16 of the said decision read thus;

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“9. A reading of the provisions under sub-rules (2) and (3) of Rule 14 of the Kerala Minor Mineral Concession Rules make it explicitly clear that an application for mineral transit passes for transportation of ordinary earth shall be accompanied by a valid building permit for construction of building, obtained from the Local Self Government authority concerned; land development permit obtained from the Local Self Government authority concerned, in cases where the levelling of the land and extraction of earth is involved; and possession and enjoyment certificate of the land issued by the Village Officer concerned. As per the second proviso to sub-rule (2), in cases where the levelling of the land and extraction of ordinary earth is involved, the building permit shall be accompanied by an approved building plan obtained from the Local Self Government authority concerned, which shall contain the area of the land to be developed for the construction of the building and quantity of ordinary earth to be extracted for such construction.

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As per sub-rule (3) of Rule 14, a person who applies for mineral transit passes for transportation of ordinary earth under Rule 14 shall also submit along with the application, a sworn affidavit in stamped paper to the

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effect that he will carry out the proposed construction as per the building plan and building permit and shall complete at least the construction of basement of the building within one year from the date of issuance of mineral transit passes and intimate the same to the competent authority.

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In the instant case, the fact that Ext.P3 application made by the petitioner before the 1^st respondent for issuance of mineral transit passes is not supported by any of the documents as per the mandate of the provisos to sub-rule (2) of Rule 14 and also an affidavit as per the mandate of sub-rule (3) of Rule 14 of the Kerala Minor Mineral Concession Rules is not in dispute. Though Ext.P3 application is one dated 04.02.2019, the same was sent by speed post to the office of the 1^st respondent only on 20.02.2019, as evidenced by Ext.R1(a) envelop, which was received in the office of the said respondent only on 23.02.2019. The said fact is also not in dispute. During the course of arguments, the submission made by the learned counsel for the petitioner is that the petitioner is prepared to produce Ext.P1 building permit, Ext.P2 development permit and also an affidavit as per the mandate of sub-rule (3) of Rule 14 before the 1^st respondent, within a time limit to be fixed by this Court. 12. In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145] a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer

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concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. Paragraph 15 of the said decision reads thus;

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" 15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute to enforce its performance. (See Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer [1966 (1) SCR 120 : AIR 1966 SC 334], Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC 1210] and Dr. Umakant Saran v. State of

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Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]. In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." (underline supplied)

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In Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280] the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when

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there is no other adequate and specific legal remedy and without which there would be a failure of justice. Paragraphs 11 and 12 of the said decision read thus;

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" 11. The principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. :

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Note 187 .- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duly to which the party applying for the writ is entitled of legal right to have performed.

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Note 192 .- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice.

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The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.

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Note 196 .- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well settled principles which have been established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which private litigants are apt to over look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.

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Note 206 .- .......... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.

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These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145 : AIR 1977 SC 2149] , after referring to the earlier decisions in Lekhraj Satramdas Lalvani v. N.M. Shah [AIR 1966 SC 334] , Dr. Rai Shivendra Bahadur v. Nalanda College [AIR 1962 SC 1210] and Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964] , this Court observed as follows in paragraph 15 of the reports:

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"15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions

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within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. ......... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same."

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Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. The respondents have not been able to show that there is any statute or rule having the force of law which casts a duty on the appellant bank to declare their account as NPA from 31^st March, 2000

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and apply RBI guidelines to their case."

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In State of U.P. v. Harish Chandra [(1996) 9 SCC 309] the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. Paragraph 10 of the said decision reads thus;

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" 10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the court came to hold that the list does not expire after a period of one year which on the face of its erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The

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duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. ......."

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In Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been injected by law. Vide: State of Punjab v. Renuka Singla [(1996) 8 SCC 90], State of U.P. v. Harish Chandra [1996 (9) SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SCC 560].

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In the instant case, as borne out from the pleadings and materials on record, the petitioner filed this writ petition before this Court on 22.02.2019, even before the receipt of Ext.P3 application for mineral transit passes by the 1^st respondent. Moreover, the said application is not supported by the mandatory documents, as per the provisos to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14. In such circumstances, it cannot be said that there is any failure on the part of the 1^st respondent in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking a writ of mandamus for consideration of Ext.P3 application. When Ext.P3 application made by the petitioner is not one supported by the mandatory documents as per the provisos to subrule (2) of Rule 14 and also an affidavit as per the mandate of sub-rule (3) of Rule 14, this Court cannot direct the 1^st respondent to consider that application in contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law.”

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In view of the law laid down in the decisions referred to supra, no writ of mandamus can be issued for consideration of Ext.P2 application made by the petitioner, under sub-section (1) of Section 9 of the Kerala

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Conservation of Paddy Land and Wetland Act, 2008, for reclamation of the paddy land in question acquired by the petitioner on the strength of document No.4186/2015 of the Sub Registrar Office, Chengamanadu, since that property is one acquired by the petitioner after the implementation of the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. This Court cannot direct consideration of that application by the second respondent, in contravention of the statutory provisions, as no writ of mandamus can be issued to do something contrary to law.

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In the result, this writ petition fails and the same is accordingly dismissed.

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Sd/-

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shg

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ANIL K.NARENDRAN JUDGE

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF APPLICATION DATED 23.3.2O17 GIVEN BY PETITIONER. EXHIBIT P2 A TRUE COPY OF THE AFFIDAVIT DATED 23.3.2017

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EXHIBIT P3 A TRUE COPY OF THE LAND TAX RECEIPT DATED 7.6.2016 ISSUED BY 4TH RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE LOCATION SKETCH DATED 21.1.2016 ISSUED BY 4TH RESPONDENT.

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EXHIBIT P5 A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 9.3.2017 ISSUED BY 4TH RESPONDENT.

Yaser v. the Revenue Divisional Officer

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Yaser v. the Revenue Divisional Officer

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