District Collector, Kozhikode; Revenue Divisional Officer, Kozhikode; Agriculture Production Commissioner, Thiruvananthapuram; Agricultural Officer, Thalakkulathur; Village Officer, Thalakkulathur; State of Kerala represented by Secretary to Government, Department of Agriculture v Pattarpalam-Edakkara Sheerolpadaka Sahakarana Sangham

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 25TH DAY OF JANUARY 2017/5TH MAGHA, 1938** **WA.No. 1852 of 2014 () IN WP(C).22397/2013 --------------------------------------------** **AGAINST THE JUDGMENT IN WP(C)22397/2013 DATED 15-07-2014** **APPELLANT(S):** - **------------** **1. DISTRICT COLLECTOR, KOZHIKODE - 673001** **2. REVENUE DIVISIONAL OFFICER, KOZHIKODE 673 001.** **3. AGRICULTURE PRODUCTION COMMISSIONER, THIRUVANANTHAPURAM - 695 001 (CONVNENER, STATE LEVEL MONITORING COMMITTEE) THALAKKULATHUR, P.O.THALAKKULATHUR, KOZHIKODE DIST. 673 001.** **4. AGRICULTURAL OFFICER** - **THALAKKULATHUR (CONVNENER, LOCAL LEVEL MONITORING COMMITTEE) THALAKKULATHUR P.O., KOZHIKODE DIST. 673 001.** **5. THE VILLAGE OFFICER THALAKULATHUR, PO THALAKKULATHUR, KOZHIKODE DISTRICT-673 001** **6. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVRNMENT, DEPARTMENT OF AGRICULTURE, SECRETARIAT, THIRUVANANTHAPURAM - 695 001** ## **BY SR. GOVERNMENT PLEADER SRI. V. TEKCHAND** - **RESPONDENT(S): --------------** **PATTARPALAM-EDAKKARA SHEEROLPADAKA SAHAKARANA SANGHAM, D 86(D) APCOS, RPERESENTED BY THE SECRETARY PATTARPALAM-EDAKKARA KSHEEROLPADAKA SAHAKARANA SANGAM D 86(D) APCOS EDAKKARA PO, CHELANNUR VIA. KOZHIKODE - 673 616.** **BY SRI.KALEESWARAM RAJ** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **'CR'** MOHAN M. SHANTANAGOUDAR, CJ & ANIL. K. NARENDRAN, J ---------------------------------------------------W.A. No. 1852 of 2014 ----------------------------------------------------Dated this the 25[th] day of January, 2017 ## J U D G M E N T ## Mohan M. Shantanagoudar, CJ The judgment dated 15.7.2014 passed in W.P(C). No. 22397 of 2013 is called in question in this writ appeal by the State. By the impugned judgment, the learned Single Judge set aside Ext.P11 order passed by the State Government and a direction was issued to the Agriculture Production Commissioner (the Convener of State Level Committee) to report about the factors mentioned in Section 8(3) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 to the Government. It is also observed that on receipt of the report of the State Level Committee, along with the recommendation of Local Level Committee, the State of Kerala shall consider the request of the petitioner, after affording it an opportunity of hearing. While concluding so, the learned Single Judge has made it clear that the power for recommendation is with the Local Level Monitoring Committee and not with the State Level Committee. 2 _**W.A.1852/14**_ The duty vested with the State Level Committee is to report alternative land or about ecological conditions. 2. The writ petitioner/respondent herein is a registered Cooperative Society engaged in the sale and distribution of milk. It applied for permission before the Revenue Divisional Officer for conversion of a land having an extent of 5.1835 cents in Re-survey No.49/1 of Thalakulathur Village, Edakkara Desom in Kozhikode District for the purpose of constructing a building for the society. The above land is coming under the Kerala Conversion of Paddy Land and Wet Land Act, 2008 ('the Act' for short). A request was made by the writ petitioner under Section 5(3)(i) of the Act read with Rule 5(3) of the Kerala Conversion of Paddy Land and Wetland Rules, 2008 ('the Rules' for short), before the Local Level Monitoring Committee for appropriate orders. The Local Level Monitoring Committee recommended for reclamation of the paddy land on the ground of 'public purpose'. 3. The Local Level Monitoring Committee observed that the ecological balance in the area will not be affected if paddy land is reclaimed. As per the provisions of the Act and the Rules, a State Level Committee is constituted for furnishing report to the Government, after detailed scrutiny of the applications 3 _**W.A.1852/14**_ recommended by the Local Level Monitoring Committee regarding filling up of the paddy land for public purpose or for construction of residential building for the owner of the paddy land. 4. Section 8(3) of the Act clarifies that the State Level Committee shall scrutinse each application recommended by the Local Level Monitoring Committee for filling up or reclamation of paddy land for public purpose and shall examine in detail whether any alternate land, other than paddy land, is available in that area and the ecological changes that may occur due to such filling up of paddy land. After scrutinising the entire matter as required under section 8(3), the State Level Committee shall submit a report to the Government. Section 10 of the Act empowers the State Government to grant exemption in certain cases. Ultimately, the decision lies with the State Government inasmuch as the decision needs to be taken in accordance with law, by the State Government. 5. In the matter on hand, the Local Level Monitoring Committee, by Ext.P5 report, has recommended to the concerned that permission be granted for the society to construct its own building on the land in question for public purpose. Such recommendation made by the Local Level Monitoring Committee 4 _**W.A.1852/14**_ ought to be scrutinised by the State Level Committee by applying its mind and a report should have been sent to the State. Then, it is open for the Government to take a decision in the matter based on such report. The report of the State Level Committee is not placed before the Court. Ext.P11 dated 8.4.2013 is the order issued by the Government, based on the report of the State Level Committee and the same is challenged in the writ petition. 6. The order issued by the State Government (Ext.P11) states that the State Level Committee has made the following endorsement while sending the report to the State Government: “Not recommended.” 7. In order to satisfy our conscience whether the State Level Committee has applied its mind or not, we directed the learned Government Pleader to secure the records for perusal of the Court. The relevant records are produced by the learned Government Pleader which contain the records maintained by the State Level Committee constituted under Section 8 of the Act. Such records reveal that the State Level Committee met at 3 pm on 7.3.2013 and has considered many applications inclusive of the application filed by the petitioner. It has merely stated as “not recommended”. There is no detailed report issued by the State 5 _**W.A.1852/14**_ Level Committee by assigning reasons for not recommending. Consequently, the State Government did not have opportunity on merits to go through the views of the State Level Committee. 8. The constitution of the State Level Committee cannot be treated as an empty formality. The State Level Committee is constituted under Section 8 of the Act for a definite purpose, i.e., for furnishing reports to the State Government after detailed scrutiny of the applications recommended by the Local Level Monitoring Committee regarding filling up of paddy land for public purposes. The object with which the Kerala Conservation of Paddy Land and Wetland Act was enacted is to conserve the paddy land and wetland and to restrict the conversion and reclamation thereof, in order to promote growth in the agricultural sector and to sustain the ecological system in the State of Kerala. The State Government, having taken into consideration the indiscriminate and uncontrolled reclamation and massive conversion of paddy land and wetland that were taking place in the State and finding that there is no strict law to restrict effectively such conversion and reclamation of lands, felt it necessary and expedient in the public interest to pass the Enactment in order to promote agricultural growth, to ensure food security and to sustain 6 _**W.A.1852/14**_ ecological system in the State of Kerala. The above object of the State Government should not be allowed to be frustrated. 9. Since the State Level Committee is the highest committee under the enactment to oversee the recommendatory report of the Local Level Monitoring Committee, it is not open for the State Level Committee to take decision without assigning any reason. Section 8, more particularly, sub-section(3) of Section 8 of the Act mandates that the State Level Committee shall scrutinse each application recommended by the Local Level Monitoring Committee for filling up or reclamation of paddy land for public purpose and shall examine in detail whether any alternate land, other than paddy land, is available in that area and the ecological changes that may occur due to such filling up of paddy land and submit a report to the Government. 10. A bare reading of the provision, i.e., Section 8 of the Act makes it amply clear that the State Level Committee has to independently apply its mind and come to a conclusion. The report shall contain each and every particulars, which the State Level Committee is supposed to examine. It is not open for the State level Committee to simply 'recommend' or 'not to recommend' any case. It has to scrutinise and examine every case 7 _**W.A.1852/14**_ keeping in mind the legislative intention with which the enactment is passed. The report of the State Level Committee should be a speaking report and that should be the guiding factor of the State Government. We hasten to add here itself that the State Government is the ultimate authority which will take decision in accordance with law, based on facts and circumstances of each case. 11. In **Breen v. Amalgamated Engineering Union (1971 (1) All. E.R. 1148)** Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120)** it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. 12. Following the principle laid down in the decisions referred to supra, the Apex Court in **Chairman and Managing Director, United Commercial Bank and others Vs. P.C.Kakkar (2003) 4 SCC 364)** held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it 8 _**W.A.1852/14**_ can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The 'inscrutable face of a sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance. 13. A Constitution Bench of the Apex Court has laid down in **Krishna Swami v. Union of India and others (1992 (4) SCC 605)** that, undoubtedly, in a parliamentary democracy governed by rule of law, any action, decision or order of any statutory/public authority/functionary must be founded upon reasons stated in the order or staring from the record. Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be 9 _**W.A.1852/14**_ arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21 of the Constitution of India. 14. In **B.A.Linga Reddy v. Karnataka State Transport Authority (2015 (4) SCC 515)** , the Apex Court after referring to its earlier judgments on the subject has reiterated that, the rule of reason is anti-thesis to arbitrariness in action and is a necessary concomitant of the principles of natural justice. If a statutory or public authority/functionary does not record the reasons, its decision would be rendered arbitrary, unfair, unjust and violating Articles 14 and 21 of the Constitution of India. It is the duty of such authority/functionary to give reasons and to pass a speaking order that excludes arbitrariness in action. Referring to the facts of that case, the Apex Court noticed that, there is no consideration of the objections except mentioning the arguments of the rival parties and that objections both factual and legal have not been considered much less reasons assigned to overrule them. 15. Since we find that the State Level Committee has not applied its mind, its report dated 7.3.2013 and subsequent order passed by the State Government as per Ext.P11 dated 8.4.2013 are liable to be set aside. Accordingly, they stand set aside. The 10 _**W.A.1852/14**_ State Level Committee shall reconsider the matter in accordance with law, keeping in mind the legislative intent as well as law on the issue while submitting report under Section 8(3) of the Act. The appeal stands disposed of with the above observations. Sd/Mohan M. Shantanagoudar, Chief Justice Sd/Anil. K. Narendran, Judge // True copy // sou.28/1.