Febina Navas v. Local Level Monitoring Committee and District Level Monitoring Committee and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **FRIDAY, THE 31ST DAY OF MAY 2019 / 10TH JYAISHTA, 1941** ## **WP(C).No. 13575 of 2019** ## **PETITIONER:** **FEBINA NAVAS, AGED 40 YEARS W/O. NAVAS, THEENATTU HOUSE, THAIKKATUKARA P.O, ALWAYE, ERNAKULAM DIST.** **BY ADV. SRI.V.M.KRISHNAKUMAR** ## **RESPONDENTS:** - **1 THE LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, CHOORNIKKARA KRISHI BHAVAN, ALWAYE, ERNAKULAM DIST. PIN 683501.** - **2 THE DISTRICT LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CHAIRMAN, REVENUE DIVISIONAL OFFICER, FORTKOCHI PIN 682 001.** ## **SRI MANU RAJ K.J.-GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.13575 of 2019** ## **:-2-:** ## **J U D G M E N T** The petitioner, who is stated to be the owner in possession of 2.02 Ares of property in re-survey No.483/4-2 (old Sy.No.398/4/2) of Choornikkara Village, covered by Ext.P1 tax receipt dated 28.12.2018, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent to consider Ext.P2 application dated 24.4.2019 and to do the needful as provided under sub-section (3) of Section 5 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. 2. On 10.5.2019, when this writ petition came up for admission, the same was ordered to be listed after vacation for the learned Government Pleader to get instructions. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader ## **W.P.(C)No.13575 of 2019** ## **:-3-:** appearing for the respondents. 4. During the course of arguments, on a query made by this Court, the learned counsel for the petitioner would submit that the petitioner purchased the property in question after 2008, i.e., after the commencement of Kerala Conservation of Paddy Land and Wetland Act, 2008. 5. In **Thankachan v. District Collector (2017** **(3)KLT 35)** , this Court held that the provisions under Section 9 of the Kerala Conservation of Paddy Land and Wetland Act has no application in respect of the land which is purchased after the implementation of the said Act. Paragraphs 6 and 7 of the said judgment read thus; “6. 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 ## **W.P.(C)No.13575 of 2019** ## **:-4-:** 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. 7. 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 has declined the claim and a contrary direction would go against the clear statutory ## **W.P.(C)No.13575 of 2019** ## **:-5-:** interdict.” 6. In view of the law laid down in **Thankachan's case (supra)** , the 1[st] respondent Local Level Monitoring Committee cannot make a recommendation under clause (1) of Section 3 of the Kerala Conservation of Paddy Land and Wetland Act to the 2[nd] respondent District Level Authorised Committee for reclamation of a paddy land purchased after the commencement of the said Act, for construction of a residential building for the owner of that paddy land. 7. 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 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 ## **W.P.(C)No.13575 of 2019** ## **:-6-:** 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; " **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 ## **W.P.(C)No.13575 of 2019** ## **:-7-:** Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC 1210] and Dr. Umakant Saran v. State of 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) 8. 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 ## **W.P.(C)No.13575 of 2019** ## **:-8-:** 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 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 ## **W.P.(C)No.13575 of 2019** ## **:-9-:** 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 ## **W.P.(C)No.13575 of 2019** ## **:-10-:** 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. **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 ## **W.P.(C)No.13575 of 2019** ## **:-11-:** 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 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 ## **W.P.(C)No.13575 of 2019** ## **:-12-:** 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 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 ## **W.P.(C)No.13575 of 2019** ## **:-13-:** 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." 9. In **State of U.P. v. Harish Chandra [(1996)** **9 SCC 309]** the Apex Court held that, u nder the Constitution, a mandamus can be issued by the Court when the applicant establishes that he has a legal right to perform legal duty by the party against ## **W.P.(C)No.13575 of 2019** ## **:-14-:** 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; " **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 ## **W.P.(C)No.13575 of 2019** ## **:-15-:** 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 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. ......." 10. 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 ## **W.P.(C)No.13575 of 2019** ## **:-16-:** 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]** . 11. In view of the law laid down in the decisions referred to supra, this Court finds that no writ of mandamus can be issued for consideration of Ext.P2 application by the 1[st] respondent Local Level Monitoring Committee, since the property in question is one purchased by the petitioner after the commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008, in respect of which the 1[st] respondent cannot make a ## **W.P.(C)No.13575 of 2019** ## **:-17-:** recommendation to the 2[nd] respondent District Level Authorised Committee in view of the law laid down by this Court in **Thankachan's case (supra)** . In such circumstances, this writ petition fails and the same is accordingly dismissed; however, without prejudice to the right, if any, of the petitioner to invoke the provisions under amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, and the Rules made thereunder, as amended by the Amendment Act of 2018. Sd/- **ANIL K.NARENDRAN** **JUDGE** ami/ ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT FOR THE YEAR 2018-19 DATED 28-12-2018.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION FORM DATED 24-04-2019 SUBMITTED BEFORE THE 1ST RESPONDENT.**