K.K. Joy v. Revenue Divisional Officer/Sub Collector, Fort Kochi; Local Level Monitoring Committee, Udayamperoor Grama Panchayath; Agricultural Officer, KSR Center; Village Officer, Manakunnam Village; Director, Kerala State Remote Sensing and Environment Center (KSREC)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941** ## **WP(C).No.29797 of 2018** ## **PETITIONER :** **K.K.JOY AGED 74 YEARS** **S/O.LATE KURIAKOSE, KATTADIYIL HOUSE, KUREEKKAD.P.O., ERNAKULAM DISTRICT, PIN-682 305.** **BY ADVS. SRI.P.K.SOYUZ SRI.JELSON J.EDAMPADAM** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR RDO OFFICE, FORT KOCHI, ERNAKULAM, PIN-682 001.** - **2 THE LOCAL LEVEL MONITORING COMMITTEE UDHAYAMPEROOR GRAMA PANCHAYATH, REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER, KRISHI BHAVAN, UDAYAMPEROOR, UDAYAMPEROOR P.O., ERNKULAM-682 307** - **3 AGRICULTURAL OFFICER KIRSHI BHYAVAN, UDAYAMPEROOR, UDAYMPEROOR P.O. , ERNKULAM-682 307** - **4 THE VILLAGE OFFICER MANAKUNNAM VILLAGE, UDAYAMPEROOR P.O., KANAYANNOOR TALUK, ERNAKULAM-682 307** - **5 THE DIRECTOR KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTER, 'C' BLOCK, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033** ## **BY SRI MANU RAJ K.J- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.29797 of 2018** **2** ## **JUDGMENT** The petitioner, who is stated to be the owner in possession of 39.68 Ares of land in Re.Sy.Nos.128/6 and 128/4 in Block No.19 of Manakunnam Village, Kanayannoor Taluk covered by sale deed Nos.998 of 1989 and 1542 of 2013 dated 08.05.1989 and 15.05.2013 respectively, of the Sub Registrar Office, Thripunithura, has filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that the aforesaid property is neither a paddy land nor a wetland as defined in the Kerala Conservation of Paddy Land and Wetland Act, 2008 and he is entitled to utilise the above land for any purpose including construction of building. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent Local Level Monitoring Committee to reconsider Ext.P4 application after obtaining a report from the 5[th] respondent KSREC, and review the data- **WP(C).No.29797 of 2018** **3** bank and make necessary corrections on the same by deleting the said land from the data-bank of Udayamperoor Grama Panchayat. 2. On 19.09.2018, when this writ petition came up for consideration, the 3[rd] respondent Agricultural Officer was directed to secure a report from the KSREC, if the petitioner is producing demand draft for the amount required for the purpose and also producing necessary documents before the 3[rd] respondent, at the earliest. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 4. During the course of arguments, the learned Government Pleader has made available for the perusal of this Court a report of the 5[th] respondent Director of KSRSEC in respect of the property of the petitioner in Survey Nos.128/6 and 128/4 of Manakunnam Village. The observations and conclusion in the said report read **WP(C).No.29797 of 2018** **4** ## thus; _“The analysis has been carried out from all available data sets of toposheet (1967) and different satellite data sets of 2008, 2011, 2015 and 2018 for the survey plot._ _As per the toposheet of 1967, the survey plot 128/4 was observed as paddy land. The plot was observed under crop land towards northern part and with plantations/trees towards southern part with buildings/structure towards eastern corner in the data of the year 2008. Same landuse pattern was observed in the data of the year 2011, 2015 and 2018._ _As per the toposheet of 1967, the survey plot 128/6 was observed as paddy land. The plot was observed under plantation/trees in the data of the year 2008. Same landuse pattern was observed in the data of year 2011, 2015 and 2018.”_ 5. The Kerala Conservation of Paddy Land and Wetland Act, 2008 was enacted to conserve the paddy land and wet land 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 **WP(C).No.29797 of 2018** **5** 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 defines 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 defines 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 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 **WP(C).No.29797 of 2018** **6** conversion or reclamation of paddy land. As per subsection (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. As per Clause (f) of Rule 2 of the Kerala Conservation of Paddy Land and Weltland Rules, 2008 inserted vide G.O.(P)No.85/2018/Rev. dated 15.12.2018, 'data bank' means the data bank of paddy lands and wetlands prepared under clause (i) of subsection (4) of Section 5 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Rule 4 of the **WP(C).No.29797 of 2018** **7** Rules deals with preparation of data-bank. As per subrule (1) of Rule 4, the Local Level Monitoring Committee has to prepare a data-bank. Sub-rule (2) of Rule 4 deals with the procedure that has to be followed by that Committee in the matter of preparation of data-bank. As per sub-rule (3) of Rule 4, the Committee, if found necessary, can seek technical support for preparation of data-bank under clause (a) of sub-rule (2) of Rule 4 from the Agricultural Officer, Village Officer or District Collector. 8. As per sub-rule (4) of Rule 4, the data-bank approved by the Committee as per clause (b) of subrule (2) of Rule 4, prepared in Form 4, shall be forwarded to the Secretary of the concerned Local Self Government Institution, who shall publish the same as Gazette notification. As per sub-rule (4A) of Rule 4, a copy of the data-bank published in the official Gazette shall be published by the Secretary of the Grama Panchayat/Municipality/Corporation in the notice board **WP(C).No.29797 of 2018** **8** and also in the website. As per sub-rule (4B) of Rule 4, two copies of the data-bank published as above shall be forwarded by the Secretary of the Grama Panchayat/ Municipality/Corporation to the concerned Village Officer and Agricultural Officer. As per sub-rule (4C) Rule 4, the Village Officer and the Agricultural Officer shall publish a copy of the data-bank so received in the notice board, for information to public and one copy shall be kept in safe custody so as to make available for scrutiny of land owners, as and when required. 9. As per sub-rule (4D) of Rule 4, a person feeling aggrieved by any entry in the data-bank can submit his objections by submitting an application in Form 5 to the Revenue Divisional Officer, who shall issue receipt for such application and shall keep a register of such applications. As per sub-rule (4E) of Rule 4, if an application received under sub-rule (4D) is in respect of paddy land, the same shall be forwarded to the **WP(C).No.29797 of 2018** **9** Agricultural Officer, and if such an application in respect of a wet land, the same shall be forwarded to the Village Officer, for report, and the Village Officer or the Agricultural Officer, as the case may be, shall submit a report on that application to the Revenue Divisional Officer, within one month. 10. As per sub-rule (4F) of Rule 4, on receipt of a report under sub-rule (4E), the Revenue Divisional Officer shall conduct a local inspection of the property or obtain satellite map prepared by the Central or State Science and Technological Institutions, if found necessary, and thereafter, pass appropriate orders on that application. As per sub-rule (5) of Rule 4, if any land, which is lying as paddy land/wet land is not included in the data-bank published in the official Gazette, under sub-rule (4) of Rule 4, the Local Level Monitoring Committee shall have the authority to take necessary action in this regard. 11. As per sub-rule (6) of Rule 4, if a person is **WP(C).No.29797 of 2018** **10** aggrieved by incorrect entry of his property in the data-bank published as per sub-rule (4) of Rule 4, he can make an application before the concerned Local Level Monitoring Committee, for correction, within 90 days from the date of coming into force of the Kerala Conservation of Paddy Land and Wetland (Amendment) Rules 2017. As per sub-rule (7), such an application has to be filed after affixing a Court fee stamp of Rs.100/- and that application should contain the particulars of the property in respect of which such correction is sought for and also the nature of correction sought for. Such an application for correction shall be received by the concerned Local Level Monitoring Committee and they have to issue receipts. If sufficient cause is shown, the Local Level Monitoring Committee shall have the power to entertain such application, after condoning the delay in filing those applications. 12. As per sub-rule (8) of Rule 4, on receipt of an **WP(C).No.29797 of 2018** **11** application under sub-rule (6), the Local Level Monitoring Committee shall prepare a report after conducting a local inspection as to the nature of the property in question. For that purpose, the Local Level Monitoring Committee has to take necessary steps to obtain the satellite images of the property prior to and after 12.08.2008, the date on which the Kerala Conservation of Paddy land and Wetland Act, 2008 came into force. Based on that report and also the satellite image, the Local Level Monitoring Committee shall take an appropriate decision as to the nature of the property and in cases there is any difference in the nature of the property notified in the data bank, necessary corrections shall be made and published accordingly. As per sub-rule (9) of Rule 4, for effecting such publication, the Local Level Monitoring Committee has to comply with the provisions under sub-rule (2) of Rule 4, regarding publication of data bank. As per subrule (10) of Rule 4, if the Local Level Monitoring **WP(C).No.29797 of 2018** **12** Committee finds no reason to change the nature of the land, and accordingly not to make any correction in the data bank, the same shall be intimated to the applicant. 13. Ext.P4 application made by the petitioner, which is one filed under sub-rule (6) of Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 is in respect of the property having an extent of 39.68 Ares (98.04 cents) comprised in Survey Nos.128/6 and 128/4 covered by Ext.P1 tax receipt. The land in question is classified as 'Nilam' in the basic tax register and also in the data-bank. Ext.P2 is the relevant extract of the data-bank prepared by the 2[nd] respondent. The petitioner moved Ext.P4 application for correction in the data-bank before the 2[nd] respondent Local Level Monitoring Committee, which now stands rejected by Ext.P7 communication dated 03.09.2018 issued by the 3[rd] respondent Agricultural Officer, who is the Convener of that Committee. The **WP(C).No.29797 of 2018** **13** reason for rejecting such an application is not discernible from Ext.P7 order. 14. 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. 15. Following the principle laid down in the decisions referred to above, 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 **WP(C).No.29797 of 2018** **14** face of the sphinx', it 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. 16. 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 **WP(C).No.29797 of 2018** **15** 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 arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21 of the Constitution of India. 17. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the same time, it is not the requirement that, the reasons should be as **WP(C).No.29797 of 2018** **16** elaborate as in the decision of a court of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some reasons, at least in brief, must be disclosed in the order passed by an administrative or quasi-judicial authority. 18. 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 antithesis 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 **WP(C).No.29797 of 2018** **17** 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. 19. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that Ext.P7 order dated 03.09.2018, whereby Ext.P4 application made by the petitioner for correction of the entry in the data-bank stands rejected, cannot be sustained in the absence of any reason stated therein, as per the mandate of sub-rule (10) of Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008. In such circumstances, Ext.P7 order dated 03.09.2018 of the 3[rd] respondent, based on Decision No.4 dated 25.06.2018 of the 2[nd] respondent Local **WP(C).No.29797 of 2018** **18** Level Monitoring Committee, is set aside and the 2[nd] respondent is directed to reconsider Ext.P4 application with notice to the petitioner and after affording him an opportunity of being heard, taking note of the statutory provisions referred to hereinbefore and also the report of the 5[th] respondent referred to hereinbefore. A decision in this regard shall be taken, after conducting an inspection of the property by the 2[nd] respondent, as expeditiously as possible, at any rate, within a period of six weeks from the date of receipt of a certified copy of this judgment. The legal and factual contentions raised by the petitioner are left open to be raised before the 2[nd] respondent at appropriate stage. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/19/7 **WP(C).No.29797 of 2018** **19** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 26.04.18** **EXHIBIT P2** - **TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK PREPARED BY THE 2ND RESPONDENT** **EXHIBIT P3 TRUE PHOTOGRAPH OF THE LAND OWNED BY THE PETITIONER** - **EXHIBIT P3 A TRUE COPY OF THE SATELLITE IMAGE TAKEN FROM GOOGLE EARTH DATED 06.01.2008** - **EXHIBIT P4 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P5 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 25.04.18** - **EXHIBIT P6** **TRUE COPY OF THE JUDGMENT DATED IN W.P(C) NO.16583 OF 2018 DATED 23.05.18** **EXHIBIT P7 TRUE COPY OF THE ORDER NO.KBUPR5/2018-19 DATED 03.09.2018 ISSUED BY THE 3RD RESPONDENT**