Mohammed Bava K.K. v. District Collector Kozhikode and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 26TH DAY OF JULY 2019 / 4TH SRAVANA, 1941** ## **WP(C).No.18639 of 2019** ## **PETITIONER/S:** **MOHAMMED BAVA.K.K, AGED 57 YEARS S/O. MAMMED KUNHI K.K, KANHIRAKANDIYIL HOUSE, CEHVARAMBALAM (P.O), KOZHIKODE 673 017** **BY ADV. SRI.K.PRAVEEN KUMAR** ## **RESPONDENT/S:** - **1 THE DISTRICT COLLECTOR KOZHIKODE 673 020** - **2 THE REVENUE DIVISIONAL OFFICER, KOZHIKODE 673 020** - **3 THE LOCAL LEVEL MONITORING COMMITTEE, KOZHIKODE CORPORATION, REPRESENTED BY ITS CONVENER, (THE AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN, PUTHIYARA, PUTHIYARA (P.O), KOZHIKODE 673 004)** - **4 THE TAHASILDAR, KOZHIKODE TALUK, CIVIL STATION (P.O), KOZHIKODE 673 020.** - **5 THE VILLAGE OFFICER, CHEVAYUR VILLAGE, KOZHIKODE 673 017** - **6 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **7 KOZHIKODE CORPORATION, REPRESENTED BY ITS SECRETARY, KOZHIKODE 673 032** - **BY ADV. SRI.G.SANTHOSH KUMAR, SC, KOZHIKODE MUNICIPAL CORPORATION** ## **OTHER PRESENT:** ## **SRI MANU RAJ K.J- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.C.18639/2019 2 ## **JUDGMENT** The petitioner who is stated to be the absolute owner in possession of 12.60 cents of land comprised in Re-survey No.274/4A in Chevayur Village in Kozhikode Taluk has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P4 order passed by the 2[nd] respondent Revenue Divisional Officer and a writ of mandamus commanding the 2[nd] respondent to allow the request of the petitioner for conversion/or regularisation of the conversion of subject land as per the decision of this Hon'ble Court in **Shivadasan v. Revenue Divisional Officer [2017** **(4) KHC 191]** , applying the provisions of the pre- amended Act, as expeditiously as possible. The petitioner has also sought for a declaration that the revenue authorities are bound to re-assess the subject property of the petitioner and effect consequential changes in the nature of the W.P.C.18639/2019 3 property in Basic Tax Register, since the provisions of the Kearla Conservation of Paddy Land and Wetland Act, 2008 are not applicable to the said property. 2. Going by the averments in the writ petition, the petitioner's property covered by Ext.P1 possession certificate is situated in a commercial area, which is not included in the data-bank published by the 3[rd] respondent. However, the category of that land is described as 'nilam' in Basic Tax Register. In Ext.P2 certificate dated 29.10.2016 the Agricultural Field Officer, Krishi Bhavan, Kozhikode has certified that the property in Re-survey No.274/4A is not included in the draft data-bank. The petitioner moved an application dated 15.05.2017 before the 2[nd] respondent RDO, invoking the provisions under sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order, 1967 seeking permission to convert that land for non-agricultural purposes. Based on that W.P.C.18639/2019 4 application, the 2[nd] respondent called for a report from the Agricultural Field Officer, who is the Convener of the 3[rd] respondent Local Level Monitoring Committee, who has submitted Ext.P3 report dated 03.07.2017 in the prescribed proforma. However, the 2[nd] respondent by Ext.P4 order dated nil rejected that application on the ground that there is no provision under the Kerala Land Utilisation Order, whereby conversion can be granted for commercial purpose. 3. In paragraph No.15 of the writ petition, the petitioner has also offered explanation as to the delay in challenging Ext.P4 order. It is stated that, in view of the amendment brought by the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance, 2017, i.e., Ordinance No.41 of 2017, followed by the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 i.e., Act 29 of 2018, the petitioner was confused as to whether the amended provisions, especially sub-section (13) of W.P.C.18639/2019 5 Section 27 of the Act has application in the case of the petitioner. 4. On 09.07.2019, when this writ petition came up for admission, the learned Government Pleader and also the learned Standing Counsel for the respondent Corporation sought time to get instructions. 5. Heard the learned counsel for the petitioner, the learned Government Pleader for respondents 1 to 6 and also the learned Standing Counsel for the 7[th] respondent Kozhikode Corporation. 6. The issue that arises for consideration in the writ petition is as to whether any interference is warranted on Ext.P4 order of the 2[nd] respondent Revenue Divisional Officer, which is one issued in exercise of his powers under sub-clause (2) of Clause 6 of Kerala Land Utilisation Order, especially in view of the statutory remedy of appeal provided under Clause 11 of the said order. W.P.C.18639/2019 6 7. A mere perusal of Ext.P4 order would make it explicitly clear that such an order has been passed by the 2[nd] respondent by filing the blanks in a cyclostyled order by merely inserting the file number, the name of the petitioner, the date of application and thereafter, ticking one of the grounds for rejection, that is ground No.4. 8. **In Santhu Thomas v. Joint Regional Transport Officer [2018 (1) KHC 437],** this Court held that passing of orders in exercise of the quasi judicial power under Section 19 of the Motor Vehicles Act, in the form of cyclostyled order with some insertions indicate total non- application of mind by the authority on the issues raised before it, which has to be termed as one issued in violation of the principles of natural justice. Paragraphs 6 to 12 of the said decision reads as follows: _“6. Section 19 of the Act deals with the power of the licensing authority to disqualify a person from holding a driving_ W.P.C.18639/2019 7 _licence or to revoke such licence. As per sub-section (1) of Section 19 of the Act, if a licensing authority is satisfied, after giving the holder of a driving licence an opportunity of being heard, that he (a) is a habitual criminal or habitual drunkard; or (b) is a habitual addict to any narcotic drug or psychotropic substance within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985; or (c) is using or has used a motor vehicle in the commission of a cognizable offence; or (d) has by his previous conduct as driver of a motor vehicle shown that his driving is likely to be attended with danger to the public; or (e) has obtained any driving licence or a licence to drive a particular class or description of motor vehicle by fraud or misrepresentation; or (f) has committed any such act which is likely to cause nuisance or danger to the public, as may be prescribed by the Central Government, having regard to the objects of the Act; or (g) has failed to submit to, or has not passed, the tests referred to in the proviso to sub-section (3) of Section 22; or (h) being a person under the age of eighteen years who has been granted a learner's licence or a driving licence with the consent in writing of the person having the_ W.P.C.18639/2019 8 _care of the holder of the licence and has ceased to be in such care, it may, for reasons to be recorded in writing, make an order (i) disqualifying that person for a specified period for holding or obtaining any driving licence to drive all or any classes or descriptions of vehicles specified in the licence; or (ii) revoke any such licence. Rule 21 of the Central Motor Vehicles Rules, 1989 provides that for the purpose of clause (f) of sub-section (1) of section 19 of the Act, the Commission of the acts made mention in clauses (1) to (25) of Rule 21 by a holder of a driving licence shall constitute nuisance or danger to public._ _7. As per sub-section (3) of Section 19 of the Act, any person aggrieved by an order made by a licensing authority under subsection (1) may, within thirty days of the receipt of the order, appeal to the prescribed authority, and such appellate authority shall give notice to the licensing authority and hear either party if so required by that party and may pass such order as it thinks fit and an order passed by any such appellate authority shall be final. The appellate authority notified under sub-section (3) of Section 19 of the Act is the Deputy Transport Commissioner._ W.P.C.18639/2019 9 _8. The provisions under sub-section (1) of Section 19 of the Act makes it explicitly clear that, for disqualifying a person for a specified period for holding or obtaining any driving licence to drive all or any classes or descriptions of vehicles specified in the licence, or for revoking any such licence, the satisfaction of the licensing authority, after giving the holder of such licencee an opportunity of being heard, of the existence of any of the circumstances made mention in clauses (a) to (h) of sub-section (1) is a prerequisite. Further, the licensing authority has to record the reasons in writing for disqualifying a person for a specified period for holding or obtaining any driving licence to drive all or any classes or descriptions of vehicles specified in the licence, or for revoking any such licence._ _9. In the instant case, Ext.P3 proceedings of the respondent dated 27.10.2017 is on a printed/cyclostyled proforma with some insertions here or there and by filling the blanks, whereby the petitioner is disqualified under sub-section (1) of Section 19 of the Act from holding driving licence bearing No.40/2480/2005 for a period of one year, from 27.10.2017 to 26.10.2018. Ext.P3 proceedings, shows a mechanical_ W.P.C.18639/2019 10 _exercise of power by the licensing authority and as such, the same is vitiated by total non-application of mind. The mandatory prerequisites for an order under sub-section (1) of Section 19 of the Act, consistent with the principles of natural justice, are missing in Ext.P3._ _10. In_ _**Woolcombers of India Ltd. v.**_ _**Woolcombers Workers Union, [(1974) 3 SCC 318]** the Apex Court, while considering the challenge made against an award under Section 11 of the Industrial Disputes Act, 1947 held that the giving of reasons in support of their conclusions by judicial and quasi judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfitness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well known principle that justice should not only be done but should also appear to be done._ 11 _Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decisions of judicial and quasi judicial authorities to the Apex Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court. The Court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. Therefore, the Apex Court emphasised that judicial and quasi judicial authorities should always give the reasons in support of their conclusions._ _11. In_ _**Assistant Commissioner, Commercial Tax Department v. Shukla and Brothers, [(2010) 4 SCC 785]** the Apex Court held that, the principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could, in the_ 12 _given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the Court should meet with this requirement with higher degree of satisfaction._ _12. Though an appeal is provided under subsection (3) of Section 19 of the Act before the appellate authority, Ext.P3 proceedings of the licensing authority, which is under challenge in this Writ Petition, virtually makes the appellate jurisdiction nugatory and ineffective, inasmuch as, such an order passed in a mechanical exercise of power will be of little assistance to the appellate authority while analysing the reasoning essential to such a decision. Therefore, no purpose will be served by relegating the petitioner to avail the statutory remedy provided under sub-section (3) of Section 19 of the Act against an order issued by the licensing authority under sub-section (1) of Section 19 of the Act on a printed/cyclostyled performa with some insertions here or there and by filling the blanks.”_ 9. In **Malu M. and others v. State of Kerala** **and others [ILR 2015 (3) Kerala 869]** , this Court held that the object underlying the rules of W.P.C.18639/2019 13 natural justice is to prevent the 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 the degree of fairness in the process of decision 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. 10. In the case on hand Ext.P4 order passed by the 2[nd] respondent in exercise of his powers under sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order is appealable before the appellate authority under the provisions of Clause 11 of the said Order. Ext.P4 order which is under challenge in this writ petition, virtually makes the appellate jurisdiction under Clause 11 nugatory and ineffective, inasmuch as, such an order passed in a mechanical exercise of W.P.C.18639/2019 14 power will be of little assistance to the appellate authority while analysing the reasoning essential to such a decision. Therefore, no purpose will be served by relegating the petitioner to avail the statutory remedy provided under Clause 11 of the Kerala Land Utilisation Order against Ext.P4 order issued under Clause 6 of the said Order on a printed or cyclostyled performa with some insertions here or there and by filling the blanks. 11. The State Government made the Kerala Land Utilisation Order, 1967, with the prior approval of the Central Government, in exercise of the powers conferred by sub-section (1) and clause (b) of sub-section (2) of Section 3 of the Essential Commodities Act, 1955, read with the notification dated 09.12.1957 of the Government of India, Ministry of Food and Agriculture. As per sub-clause (a) of Clause 2, unless the context otherwise requires, 'Collector' means the Collector of the district concerned and includes W.P.C.18639/2019 15 a Revenue Divisional Officer of the division concerned. As per sub-clause (b), substituted by S.R.O.No.240/86 published on 12.02.1986, 'food crops' includes paddy, fish, sugarcane, vegetables, tapioca, yam, tea, coffee, cardamom, pepper, groundnut, cocoa and banana plantain. 12. Clause 6 of the Kerala Land Utilisation Order provides that, land cultivated with any food crop not to be cultivated with any other food crop. Sub-clause (1) of Clause 6 provides that, no holder of any land, which has been under cultivation with any food crop for a continuous period of three years immediately before the commencement of Kerala Land Utilisation Order, shall convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector. As per the Explanation, for the purpose of subclause (1) and sub-clause (2), removal of tree- W.P.C.18639/2019 16 growth, whether partial or total, on any land cultivated with cardamom shall be deemed to be an attempt to convert or utilise such land for a purpose other than cultivation of cardamom. 13. Sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order provides that, no holder of any land who cultivates any land with any food crop for a continuous period of three years at any time after the commencement of the Kerala Land Utilisation Order shall, after the said period of three years, convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector. The first proviso to subclause (2), substituted by S.R.O.No.240/86, provides that except in the case of lands under cardamom cultivation, no permission under sub- clause (1) or sub-clause (2), shall be necessary where the cultivation for which the land is 17 converted or attempted to be converted or attempted to be converted or utilised or attempted to be utilised is paddy cultivation or fish culture. The 2[nd] proviso to sub-clause (2), inserted by S.R.O.No.240/86, provides further that the lands under cultivation of paddy should not be converted or attempted to be converted or utilised or attempted to be utilised for fish culture permanently, but only seasonally. 14. In **Sivadasan M.K and others v. Revenue** ## **Divisional Officer and others [2017 (4) KHC 191]** this Court held that the authorities under the Kerala Land Utilisation Order cannot decide as to whether conversion is for making a residential or commercial building. When land is found to be not cultivable, it is the holder's choice to put it to any legitimate use. Paragraph 24 of the said decision reads thus; “24. While setting aside the Circular, this Court cannot but make some observations on how the applications, for conversion of user, under Clause 6 of the W.P.C.18639/2019 18 KLU Order have to be dealt with. Paddy Land Act never contemplated inclusion of lands which are not cultivable, but inclusions have been made of converted lands too, merely for the reason that they are so described in the revenue records. When such lands are sought to be used for any other purpose, then the only consideration possible under Clause 6 of the KLU Order is as to whether the lands, as they exist now are cultivable and whether there was cultivation for a continuous period of three years. The cultivation for three continuous years will have to be specifically established by the District Collector/RDO on reports obtained from the Village Officer and the Agricultural Officer. If the lands are not cultivable and exist as converted, the District Collector/RDO has to necessarily permit conversion of user. There is also no power conferred on the authority to permit conversion for use in a particular manner. The authority under the KLU Order cannot decide as to whether the conversion is for making a residential or commercial building. When the land is found to be not cultivable, it is the land holders' choice to put it to any legitimate use, as has been held by the Hon'ble Supreme Court. W.P.C.18639/2019 19 The Data Bank prepared have to be revamped including only cultivable lands and the State has a duty through the District Collectors to put the land into cultivation by itself or through third parties.” In the result, this writ petition is disposed of by setting aside Ext.P4 order dated nil for the reasons stated hereinbefore and by directing the 2[nd] respondent to re-consider the application dated 15.05.2017 filed under Clause 6 of the Kerala Land Utilisation Order, with notice to the petitioner and after affording him an opportunity of being heard, strictly in accordance with law, taking note of the decisions referred to supra and also the observation contained in this judgment, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Sd/- ## **ANIL K.NARENDRAN** DG ## **JUDGE** W.P.C.18639/2019 20 W.P.C.18639/2019 21 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 25-4-2017 IN RESPECT OF THE PROPERTY OF THE PETITIONER** **EXHIBIT P2 TRUE COPY OF THE LETTER DATED 29-102016 ISSUED BY THE AGRICULTURAL FIELD OFFICER, THE CONVENER OF THE 3RD RESPONDENT** **EXHIBIT P3 TRUE COPY OF THE REPORT OF THE AGRICULTURAL FIELD OFFICER, THE CONVENER OF THE 3RD RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS NO. 8176/2017/KDIS DATED NIL OF THE 2ND RESPONDENT.**