Beena v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941** ## **WP(C).No.21060 OF 2019(F)** ## **PETITIONER:** ## **BEENA,** **AGED 48 YEARS, D/O. SREEDHARAN, VELIYATH VEEDU, NORTH ADUVASSERY, SOUTH ADUVASSERY, PIN 683578 NOW RESIDING @ KALLUMADATHIL, MURIKUPADAM P.O, ERNAKULAM 682 508** **BY ADV. SRI.R.KISHORE (KALLUMTHAZHAM)** ## **RESPONDENTS:** - **1 THE STATE OF KERALA TO BE REPRESENTED BY SECRETARY, MINISTRY OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **2 THE DISTRICT COLLECTOR, ERNAKULAM 682 030** - **3 THE REVENUE DIVISIONAL OFFICER, FORT COCHIN, ERNAKULAM 682 001** - **4 THE TAHSILDAR, FORT COCHIN, ERNAKULAM 682 001** - **5 THE VILLAGE OFFICER, KUNNUKARA 683578 ERNAKULAM** - **6 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KUNNUKARA, ERNAKULAM 683578** - **7 SECRETARY, KUNNUKARA GRAMA PANCHAYATH, KUNNUKARA, ERNAKULAM 683578** - **8 THE LOCAL LEVEL MONITORING COMMITTEE, (CONSTITUTED UNDER THE KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT 2008), REPRESENTED BY ITS CONVENOR (THE AGRICULTURAL OFFICER), KRISHI BHAVAN, KUNNUKARA 683578** **SRI HARISH K.P-SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)21060 OF 2019 ## **JUDGMENT** The petitioner, who is stated to be the owner in possession of a property having an extent of 8.10 Ares in Sy.No.657/3 of Kunnukara Village, covered by Ext.P1 settlement deed No.3667/2012 of the Sub Registrar Office, Chengamanad has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 2 and 3 to survey and measure the property of the petitioner and dispose of Exts.P2 and P4 applications in accordance with law, within a time frame to be fixed by this Court. The further reliefs sought for are a writ of mandamus commanding the 3[rd] respondent to pass order on Ext.P2 application, within a time frame to be fixed by this Court, in accordance with law; and a writ of mandamus commanding the 2[nd] respondent to consider Ext.P5 representation. 2. On 02.08.2019, when this writ petition came up for admission, this Court noticed that the petitioner is seeking consideration of Ext.P4 application, which is one invoking the provisions under Section 27A of the Kerala Conservation of 3 WP(C)21060 OF 2019 Paddy Land and Wetland Act, 2008, read with sub-rule (13) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008, placing reliance on Ext.P3 certificate dated 11.04.2019 issued by the 7[th] respondent, who is the Secretary of Kunnukara Grama Panchayat. The learned counsel for the petitioner was directed to address arguments with reference to the provisions under sub-rule (13) of Rule 12 of the said rules. 3. Thereafter, on 14.08.2019, when this writ petition came up consideration along with W.P(C) No.21122 of 2019, this Court passed the following order; “The applications made by the petitioners, which are placed on record as Ext.P4 in the respective writ petitions are filed under Section 27A of the Kerala Conservation of Paddy land and Wetland Act, 2008, read with sub-rule (13) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008. 2. Going by the averments in the writ petition, the properties in question are included as 'wetland' in the Basic Tax Register and also in the data-bank. 3. After arguing for some time, the learned counsel for the petitioners seeks adjournment.” 4. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for 4 WP(C)21060 OF 2019 respondents 1 to 6 and 8. 5. Kerala Conservation of Paddy Land and Wetland Act, 2008 was enacted to conserve the paddy land and wetland and to restrict the conversion or reclamation thereof, in order to promote growth in the agricultural sector and to sustain the ecological system in the State of Kerala. Clause (iii) of Section 2 of the Act define the term 'conversion' to mean the situation whereby, land that has been under paddy farming and its allied constructions like drainage channels, ponds, canals, bunds and ridges are put to use for any other purpose. Clause (xii) of Section 2 define the term 'paddy land' to mean 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; clause (xviii) of Section 2 define the term 'wetland' to mean 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 characterised by the presence of sluggishly moving or standing water, saturating the soil with water and includes 5 WP(C)21060 OF 2019 backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers. 6. Section 3 of the Act deals with prohibition of conversion or reclamation of paddy land. As per sub-section (1), on and from the date of commencement of this Act, the owner, occupier 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. As per sub-section (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. 7. Section 27A of the Act, inserted by Act 29 of 2018 with effect from 30.12.2017, deals with change of nature of unnotified land. The said provision reads thus; “27A. **Change of nature of unnotified land** .-(1) If any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission in 6 WP(C)21060 OF 2019 such manner as may be prescribed. (2) Notwithstanding anything contained in any judgment, decree or order of any Court or Tribunal or any other authority, the Revenue Divisional Officer may, after considering the reports of the Village Officer concerned, pass such orders as deemed fit and proper on such applications, ensuring that there is no disruption to the free flow of water to the neighbouring paddy lands, if any, through such water conservancy measures as is deemed necessary: Provided that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per cent of such land shall be set apart for water conservancy measures. (3) If the application is allowed, the applicant shall be liable to pay a fee at such rate as may prescribed: Provided that, no such fee shall be collected if the applicant proves that the land where the application is allowed is, filled up or naturally filled up before the 4th day of July, 1967, the date of commencement of the Kerala Land Utilisation Order, 1967, after completing such procedure, as may be prescribed. (4) If the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation of the unnotified land shall not adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation: Provided that in specifying such water conservancy 7 WP(C)21060 OF 2019 measures, the Revenue Divisional Officer may, if he deems fit, refer to satellite maps of the area maintained by Government agencies. (5) No permission under this section shall be necessary where the purpose for which the unnotified land is converted or attempted to be converted or utilized or attempted to be utilized is for paddy cultivation. (6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994), no permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 ares of land: Provided that the construction of a housing complex or complexes or flats or multi-storied residential complexes shall not come within the meaning of residential building specified in this sub-section: Provided further that this exemption shall be granted only once. (7) The exemption under sub-section (6) shall be applicable only to owners of unnotified lands under the Kerala Conservaion of Paddy Land and Wetland (Amendment) Act, 2018: Provided that if the area of the residential building or commercial building exempted under sub-section (6) is subsequently increased by new extension, the exemption under sub-section (6) shall cease to have effect and the 8 WP(C)21060 OF 2019 owner of the land as on the date of detection of the new extension shall be liable to pay fee as per sub-section (3). (8) Where conversion of an unnotified land is required for any public purpose, the Revenue Divisional Officer shall submit a report to Government outlining the measures to be adopted to ensure that the reclamation shall not disrupt the free flow of water to the neighbouring paddy lands, if any, and shall suggest such water conservancy measures as is necessary to ensure this. (9) The Government may, on receipt of a report under subsection (8), issue permission to reclaim unnotified land for public purpose: Provided that where permission is granted, the Government may make necessary modifications to the recommendations of the Revenue Divisional Officer as deemed fit: Provided further that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per cent of such land shall be set apart for water conservancy measures. (10) The order issued under sub-section (2) and (9) shall clearly indicate the survey number of the lands and the extent of the land in each survey number for which sanction has been accorded, the extent of the land in which water conservancy measures are to be adopted by the applicant and a sketch of such land indicating the aforementioned details shall be appended to the order. (11) The Revenue Divisional Officer may, either suo motu or on the application of any aggrieved party, cancel any 9 WP(C)21060 OF 2019 order issued under sub-section (2) if the conditions specified in the order issued therein are not complied by the applicant, either fully or partially. (12) No order of cancellation under sub-section (11) shall be made by the Revenue Divisional Officer unless the applicant thereof has been given an opportunity of being heard in the matter. (13) Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act.” 8. Clause (xviiA) of Section 2 of the Act inserted by Act 29 of 2018 with effect from 30.12.2017 define the term 'unnotified land' to mean the lands within the area of jurisdiction of the Committee (Local Level Monitoring Committee constituted under Section 5 of the Act) which have been included as paddy land or wetland in the basic tax register maintained in Village Offices, but are not notified as paddy land or wetland under sub-section (4) of Section 5 or where data bank has not been published under the provisions of clause (i) of sub-section (4) of Section 5, the lands which have already been filled up on the date of commencement of this Act and are not paddy land according to the report of the 10 WP(C)21060 OF 2019 Kerala State Remote Sensing Centre and the Local Level Monitoring Committee or where the report of the Kerala State Remote Sensing Centre is not available, lands which are not paddy land according to the report of the Local Level Monitoring Committee. 9. Similarly, clause (i) of Section 2 of the Act inserted by Act 29 of 2018, with effect from 30.12.2017 after renumbering the existing clause (i) as clause (iA), define 'change of nature of unnotified land' to mean such act or series of acts whereby the nature of an unnotified land is changed or has been changed irreversibly and in such a manner that it cannot be reverted back to the original condition by ordinary means. 10. Sub-rules (1) to (17) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 prescribe a detailed procedure for consideration of an application filed under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, by the Revenue Divisional Officer, after considering the report of the Village Officer concerned. As per sub-rule (1) of Rule 12, an application submitted before the Revenue Divisional Officer, in respect of a property having an 11 WP(C)21060 OF 2019 extent upto 20.23 ares shall be in Form 6, and that in respect of a property having an extent of above 20.23 ares shall be in Form 7. The documents that have to be attached along with an application filed under Rule 12 is provided in sub-rule (2) and the requisite fee is prescribed in sub-rule (3). 11. Sub-rule (13) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rules, provides that the application for change of nature of land filled up or naturally filled up before 04.07.1967 has to be submitted in Form No.9 and the documents enumerated in clauses (i) to (v) of sub-rule (13) may be accepted as evidence to prove that the land was filled up for naturally filled up before 04.07.1967. The documents enumerated in clauses (i) to (v) of sub-rule (13) are; (i) copy of title deeds which assert the fact that the land has been either naturally filled up or utilised for purposes other than agriculture before 04.07.1967 or (ii) legally valid agreements (including otti, kanam, etc.), executed in stamp paper in which it is recorded/asserted that the land has been either naturally filled up or used for purposes other than agriculture before 04.07.1967; (iii) receipt proving remittance of building tax 12 WP(C)21060 OF 2019 with the Local Self Government Institutions for a building in existence on such land prior to 04.07.1967; or (iv) licence or such documents, if any, issued by any Government Officer or Government Agency sufficient to prove that such land has been either naturally filled up or used for purposes other than agriculture prior to 04.07.1967; (v) based on the age, oldness of standing trees, houses, ancient Kaav, structures, etc. which are referred to in the application made for change of nature of unnotified land and the statement of witness in support of that fact. As per sub-rule (14) of Rule 13, the Revenue Divisional Officer shall call for an enquiry report from the Village Officer in order to take a decision in the matter and conduct site inspection, if found necessary. 12. A reading of the provisions under sub-rule (13) of Rule 12 of the Rules make it explicitly clear that an application filed in Form No.9 seeking change of nature of an unnotified land which is stated to have been filled up or naturally filled up before 04.07.1967 has to be supported by the materials referred to in clauses (i) to (v) thereof. On receipt of such application, the Revenue Divisional Officer has to call for an 13 WP(C)21060 OF 2019 enquiry report from the Village Officer and if found necessary, the Revenue Divisional Officer has to conduct site inspection. 13. In the instant case, in Ext.P3 certificate issued by the 7[th] respondent, who is the Secretary of Kunnukara Grama Panchayat, it is certified that building No.5/355 owned by Shri.Joshy, as per the building tax register for the year 201314, is 53 years old. Such a certificate has been issued after conducting enquiry with the residents in the locality, due to non-availability of building tax register for the previous years. Such a certificate issued by the Secretary of a Local Self Government Institution after conducting an enquiry with the residents in the locality as to the age of a building is not a material in terms of sub-rule (13) of Rule 12, to prove that the land has been either naturally filled up or used for purposes other than agriculture prior to 04.07.1967. Moreover, as already noticed, going by the averments in the writ petition (Ground 1) the property in question is included as wetland in the data-bank. A property notified as paddy land or wetland in the data-bank do not fall within the definition of 'unnotified land' in Clause (xviiA) of Section 2 of the Act. Therefore, no 14 WP(C)21060 OF 2019 application under Section 27A of the Act can be entertained in respect of such land. 14. In **Geo Peter v. Revenue Divisional Officer, Muvattupuzha and Another [2019 (4) KHC 400],** this Court held that an application filed under sub clause (2) of Clause 6 of the Kerala Land Utilization Order, prior to the amendment made to the Kerala Conservation of Paddy Land and Wetland Act, 2008, whereby Section 27A was inserted, with effect from 30.12.2017, has to be considered under Clause 6 of the Kerala Land Utilisation Order, without reference to the amended provisions of Section 27A or 27C of the Kerala Conservation of Paddy Land and Wetland Act. Paragraphs 18, 19 and 20 of the said decision read thus: “18. In **Renji K.Paul and another v. Revenue Divisional Officer (RDO), Muvattupuzha and others [2019 (2) KHC 241]** this Court held that, applications submitted prior to 30.12.2017 seeking permission for conversion of a paddy land need to be considered in accordance with the provisions of the Kerala Land Utilisation Order, 1967 as the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 [as inserted by the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance, 2017, i.e., Ordinance 15 WP(C)21060 OF 2019 No.41 of 2017, followed by the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, i.e., Act 29 of 2018] came into force only with effect from 30.12.2017. In the said decision, this Court was dealing with the challenge made against Ext.P10 order of the Revenue Divisional Officer, whereby the petitioners in that writ petition were granted permission under sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order, for conversion of their property to an extent of 7½ cents, on condition that the petitioners shall pay 50% of the fair value of such parcel of land for effecting changes in revenue records, in view of the provisions under subsection (3) of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act. This Court held that the condition imposed in Ext.P10 order for payment of 50% of the fair value of such parcel of land to the Government is not legal or correct. Therefore, this Court set aside Ext.P10 order and the Revenue Divisional Officer was directed to reconsider the matter in accordance with law, considering it as one submitted prior to 30.12.2017, the appointed date from which the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act came into force, and under the provisions of Kerala Land Utilisation Order, wherein there is no provision for imposing any condition for payment of fair value of such parcel of land to the State Government. This Court has made it clear that, if the petitioners are producing necessary enabling orders, the Secretary of the Municipality shall reconsider the application for building permit submitted by them [which 16 WP(C)21060 OF 2019 was rejected on the ground that the property is included as converted land in the data-bank and remaining as paddy field in the village records as well as in the Basic Tax Register], in accordance with law, also taking into account the orders, if any, produced by the petitioners as directed above. Paragraphs 3 to 5 of the said decision read thus; “ **3.** On a reading of Ext.P10 what I could gather is that, petitioners when appeared before the Revenue Divisional Officer submitted that, without set back permission may not be granted for 7½ cents. According to the petitioners, petitioners have sought permit for construction of 2650 sq.ft. building and if the entire area is not permitted to be utilised, petitioners will not be able to complete the construction in terms of the Kerala Municipality Building Rules, 1999. **4.** It is also submitted that, the application submitted by the petitioner is dated 2.3.2017, which need to be considered in accordance with the provisions of Kerala Land Utilization Order, 1967 since the amended provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008 only came into force on and w.e.f. 30.12.2017. **5.** I find force in the said contention advanced by the petitioners and therefore, the condition imposed for payment of 50% of the land value to the Government is not legal or correct. In that view of the matter, I quash Ext.P10 and direct 17 WP(C)21060 OF 2019 the Revenue Divisional Officer to re-consider the matter in accordance with law, considering it as one submitted prior to 30.12.2017, the appointed date from only the amended provisions of Act, 2008 came into force and under the provisions of Kerala Land Utilization Order, 1967 wherein there is no provision for imposing any condition for payment of land value to the State Government. A decision shall be taken in accordance with law at the earliest possible time and at any rate within two months from the date of receipt of a copy of this judgment. Needless to say, if the petitioners are producing necessary enabling orders, the Secretary of the Municipality shall consider the application submitted by the petitioners, in accordance with law, also taking into account the orders, if any, produced by the petitioners as directed above.” (underline supplied) ## 19. In **Shanmugam v. District Collector [2019 (2) KLT** **45]** , a Division Bench of this Court held that, when the permission granted in the order of the Revenue Divisional Officer [Ext.P2 order dated 19.12.2017], whereby the petitioners therein, who are the owners of 75.60 Ares of land in Re. Survey Nos.487/2A/5, 522/11A/2, 522/7C, 522/11A/1 of Block No.13632 and 13633 of Punalur Village, were permitted to make construction of a commercial building on 70.66 Ares of their property, under the provisions of the Kerala Land Utilisation Order, subject 18 WP(C)21060 OF 2019 to the conditions contained in Ext.P2, the direction issued by the learned Single Judge in the impugned judgment, whereby the writ petitioners are directed to comply with the procedure under the amended provisions of Rule 27C of the Kerala Conservation of Paddy Land and Wetland Act for getting the Basic Tax Register corrected, cannot be sustained. The Division Bench noticed that, Ext.P2 order was in pursuant to Ext.P1 judgment dated 13.9.2017 in W.P.(C)No.10034 of 2017, in which the learned Judge issued direction by adverting to a report to the effect that a substantial portion of the property has been converted prior to the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and only a small portion is remaining as paddy land. Such finding in W.P.(C)No.10034 of 2017 was not challenged by the State in further proceedings and has therefore, attained finality. Only pursuant to the above finding, Ext.P2 order was passed under sub-clause (2) of Clause 6 of the Kerala Land Utilization Order, permitting construction over a limited extent of land (70.66 Ares). In such backdrop, the Division Bench held that the learned Single Judge could not have directed re-consideration of the application in reference to the amended provisions [i.e., the provisions under Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018]. The Division Bench found the impugned direction in the judgment of the learned Single Judge unmerited, and accordingly set aside the same. The Division Bench allowed the writ appeal by directing the Tahsildar to effect consequential correction in the Basic Tax 19 WP(C)21060 OF 2019 Register concerning the land in question, based on the Ext.P2 order already passed by the Revenue Divisional Officer, without referring to the provisions of the Kerala Conservation of Paddy Land and Wetland Act. Paragraphs 2 to 5 of the said decision read thus; “ **2.** The appellants are the owners of property having an extent of 75.60 Ares of land in the ReSy.Nos.487/2A/5, 522/11A/2, 522/7C, 522/11A/1 of Block No.13632 and 13633 of Punalur Village. They submitted application before the Tahsildar (LR), Punalur seeking additional entry in the Basic Tax Register in accordance with the current lie and nature of the property. The land owners projected that they had already secured favourable order on 19.12.2017 (Ext.P2) whereby, they were permitted to make construction of commercial building on 70.66 Ares of their land, by the Revenue Divisional Officer under the Kerala Land Utilization Order, 1967, subject to the following conditions: “ ................................................ 1. The flow of water in the land shall not be disturbed. It shall not cause flow of water in the canal on the southern side and boundary wall shall be constructed to protect it. 2. Steps shall be taken for waste management which shall not affect the agricultural activities being carried on in 20 WP(C)21060 OF 2019 the neighbouring lands. 3. No concrete shall be used on the land other than the plinth area. Throughout the boundaries on all sides a three metre canal shall be constructed for collecting water and percolate it. 4. If any time any fees is prescribed for regularizing the conversion in future it has to be remitted by the applicant. ................................................ ” **3.** The learned Judge, after due consideration of the projection made from the Writ Petitioner’s side, took note of the provisions of Section 27C of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (hereinafter Paddy Act), as amended in 2018 and directed the Writ Petitioners to comply with the procedure under the amended provisions of the Paddy Act, for getting the Basic Tax Register corrected. Thus aggrieved, the present Appeal is filed by the Writ Petitioners. **4.** What is relevant in the above context is that the order permitting construction of commercial building on the land was granted under the Ext.P2 order, which was in pursuant to the judgment dated 13.9.2017 in the W.P.(C)10034/17 (Ext.P1). The learned Judge issued direction by adverting to a report to the effect that a 21 WP(C)21060 OF 2019 substantial portion of the property has been converted prior to the Paddy Act and only a small portion is remaining as paddy land. Such finding in the W.P.(C)10034/17 was not challenged by the State in further proceedings and has therefore, attained finality. Only pursuant to the above finding, the Ext.P2 order was passed under the Clause 2 of the Kerala Land Utilization Order, 1967 permitting construction over a limited extent - of land (70.66 Ares). In such backdrop, the re consideration of the application in reference to the 2018 amended provisions of the Paddy Act, could not have directed. **5.** Since the impugned direction is found to be unmerited, we deem it appropriate to set aside the said order. The Writ Appeal is accordingly allowed by directing the Tahsildar to effect the consequential correction in the Basic Tax Register concerning the land in question, based on the Ext.P2 order already passed by the Sub Collector/Revenue Divisional Officer, without referring to the provisions of the Paddy Land Act. Necessary correction in this regard should be effected within four weeks from today. It is ordered so accordingly.” 20. As already noticed, in view of the provisions under subsection (2) of Section 1 of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, the provisions under Act 29 of 2018 shall deemed to have 22 WP(C)21060 OF 2019 come into force on 30.12.2017. Section 27A deals with change of nature of unnotified land, as defined in clause (xviiA) of Section 2 of the Act and Section 27C deals with changes in records, i.e., revenue records, in relation to lands which are permitted to be converted under the provisions of Sections 8, 9, 10 or 27A of the Act. In view of the provisions under sub-section (2) of Section 1 of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 and also the law laid down by this Court in **Renji K.Paul's case** and that by the Division Bench in **Shanmugam's case** referred to supra, the - conditions contained in the proviso to sub section (2) of Section 27A of the Act to set apart ten per cent of the land for water conservancy measures, if the area of the land where the application for change of nature of unnotified land is allowed is more than 20.2 Ares and also the - condition regarding payment of fee under sub section (3) of Section 27A of the Act, at the rate prescribed in sub-rule (9) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rules, read with the Schedule to that Rules, for allowing such an application for change of nature of unnotified land, cannot be imposed while granting permission for the conversion of a paddy land (which was converted prior to the commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and not notified as paddy land in the data-bank or the draft databank; however noted as 'Nilam', 'Nanja', etc. in revenue records) based on an application submitted before the competent authority, prior to 30.12.2017 (invoking sub- 23 WP(C)21060 OF 2019 clause (2) of Clause 6 of the Kerala Land Utilisation Order), the date on which the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, as amended by the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, i.e., Act 29 of 2018 came into force.” 15. In the instant case, Ext.P5 application made by the petitioner, invoking clause 6 of the Kerala Land Utilization Order, is one dated 25.07.2019. 16. 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 there is no other 24 WP(C)21060 OF 2019 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; " **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. : **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. **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. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and 25 WP(C)21060 OF 2019 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. **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. **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. **12.** These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4** 26 WP(C)21060 OF 2019 **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: "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 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 27 WP(C)21060 OF 2019 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." 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 and apply RBI guidelines to their case." 17. **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 28 WP(C)21060 OF 2019 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; " **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 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 29 WP(C)21060 OF 2019 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. ......." 18. 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]. 19. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the petitioner cannot seek a writ of mandamus commanding the 2[nd] respondent to consider Ext.P4 application made under Section 27A of the Act, read with sub-rule (13) of Rule 12 of 30 WP(C)21060 OF 2019 the Rules since the property in question is included as wetland in the data-bank, going by the averments in the writ petition, as no mandamus can be issued to do something contrary to the statute. Similarly, the petitioner is also not entitled for consideration of Ext.P5 application made under clause 6 of the Kerala Land Utilization Order, since the property is included as wetland in the data-bank. In such circumstances, the petitioner is not entitled for the reliefs sought for in this writ petition and the writ petition is accordingly dismissed; without prejudice to the legal right, if any, of the petitioner to move an application for correction of data-bank before the appropriate authority, after complying with the statutory requirements. Sd/- **JUDGE** **yd** 31 WP(C)21060 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE SETTLEMENT DEED OF THE PETITIONER NUMBERED AS 3667 DATED 30-07-2012 EXHIBIT P2 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 1004-2019 BEFORE THE 3RD RESPONDENT EXHIBIT P3 THE TRUE COPY OF THE STATEMENT SUBMITTED BY THE 6TH RESPONDENT DT 114-2019 EXHIBIT P4 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 22-05-2019 EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 25TH JULY 2019** ## **RESPONDENT'S EXHIBITS: NIL** **TRUE COPY** **P.A. TO JUDGE**