SANTHAMMA @ DHEEMATHI AMMA v. THE DISTRICT COLLECTOR KOZHIKODE, THE REVENUE DIVISIONAL OFFICER KOZHIKODE, THE TAHSILDAR KOZHIKODE TALUK, AND THE VILLAGE OFFICER, PERUMANNA VILLAGE

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 19TH DAY OF AUGUST 2019 / 28TH SRAVANA, 1941** ## **WP(C).No.3233 OF 2019(D)** ## **PETITIONER:** **SANTHAMMA@DHEEMATHI AMMA, AGED 69 YEARS W/O.APPU NAIR, VILAKATHU HOUSE, PERUMANNA P.O., KOZHIKODE-673019.** **BY ADVS. SRI.DIPU.R SRI.K.S.BAIJU SMT. DEVI KRIPA R. SMT.K.P.SUSMITHA SMT.DHANYA BABU SMT.P.A.PRIYA** ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR, KOZHIKODE,**| |---|---| ||**CIVIL STATION, (COLLECTORATE),**| ||**KOZHIKODE-673020.**| |**2**|**THE REVENUE DIVISIONAL OFFICER (RDO),**| ||**KOZHIKODE, OFFICE OF THE REVENUE DIVISIONAL**| ||**OFFICER, CIVIL STATION BUILDING, KOZHIKODE-**| ||**673020.**| |**3**|**THE TAHSILDAR, KOZHIKODE TALUK,**| ||**KOZHIKODE TALUK OFFICE,KOZHIKODE-673001.**| |**4**|**VILLAGE OFFICER, PERUMANNA VILLAGE,**| ||**PERUMANNA VILLAGE OFFICE, PERUMANNA P.O.,**| ||**KOZHIKODE-673019.**| ## **SRI PAUL ABRAHAM VAKKANAL- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 3233 of 2019 ## **JUDGMENT** The petitioner, who is stated to be the owner in possession of property having an extent of 9 Ares and 20.67 sq.m. of land comprised in Sy.No.132/15 (Re.Sy.No.182/1 in Block No.2) of Perumanna Village in Kozhikode Taluk, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondent to correct the mistake crept in the revenue records relating to description of that property. The petitioner has also sought for a writ of mandamus commanding respondents 1 to 3 to take appropriate action upon Ext.P3 representation dated 22.11.2018 before the 3[rd] respondent and Ext.P5 representation dated 04.12.2018 before the 2[nd] respondent, within two months after hearing the petitioner. 2. Going by the averments in the writ petition, the petitioner's property is classified as 'Nancha' in the revenue records, as evident from Ext.P2 tax receipt dated 04.07.2018. During the course of arguments, the learned counsel for the petitioner would submit that the said property is classified as -3- W.P.(C). No. 3233 of 2019 'paddy land' in the draft data-bank, published as per the provisions under the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the rules made thereunder. Ext.P3 application made by the petitioner before the 3[rd] respondent Tahsildar, Kozhikode Taluk is one invoking the provisions under Section 27C of the said Act for correction of revenue records, and as evidenced by Ext.P4 receipt, it was submitted in the Taluk Office, Kozhikode on 23.04.2018. Ext.P5 is another request dated 04.12.2018 submitted before the 2[nd] respondent Revenue Divisional Officer, as evidenced by Ext.P6 receipt dated 04.12.2018, invoking Section 27C of the Act for correction of revenue records. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for respondents. 4. 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 -4- W.P.(C). No. 3233 of 2019 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 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; 5. Section 3 of the Act deals with prohibition of -5- W.P.(C). No. 3233 of 2019 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. 6. 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 sub-section (4) of Section 5 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Rule 4 of the Rules deals with preparation of data-bank. As per sub-rule (1) of Rule 4, the Local Level Monitoring Committee has to prepare a data-bank. Sub-rule (2) of Rule 4 deals with the -6- W.P.(C). No. 3233 of 2019 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 subrule (2) of Rule 4 from the Agricultural Officer, Village Officer or District Collector. 7. As per sub-rule (4) of Rule 4, the data-bank approved by the Committee as per clause (b) of sub-rule (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 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 -7- ## W.P.(C). No. 3233 of 2019 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. 8. 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 Agricultural Officer, and if such an application in respect of a wetland, 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. 9. As per sub-rule (4F) of Rule 4, on receipt of a -8- W.P.(C). No. 3233 of 2019 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/wetland 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. 10. As per sub-rule (6) of Rule 4, if a person is 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 -9- ## W.P.(C). No. 3233 of 2019 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. 11. As per sub-rule (8) of Rule 4, on receipt of an 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 -10- W.P.(C). No. 3233 of 2019 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 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. 12. The provisions under the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the rules made thereunder, referred to hereinbefore, make it explicitly clear that if the petitioner is feeling aggrieved by any entry in the data-bank, he has to invoke statutory remedy under Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules, by approaching the competent authority. Only after obtaining a favourable order under Rule 4, the petitioner can seek correction of revenue records, by submitting an application, -11- W.P.(C). No. 3233 of 2019 invoking the provisions under Section 27C of the Act. Admittedly, it is without obtaining such a favourable order, the petitioner has moved Exts.P3 and P5 applications under Section 27C of the Act. 13. **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145]** a ThreeJudge 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 compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions with in 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 -12- W.P.(C). No. 3233 of 2019 public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions with in 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 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) 14. 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 -13- W.P.(C). No. 3233 of 2019 some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed 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. 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 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 -14- W.P.(C). No. 3233 of 2019 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 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 -15- W.P.(C). No. 3233 of 2019 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 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** -16- W.P.(C). No. 3233 of 2019 **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 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 -17- W.P.(C). No. 3233 of 2019 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." 15. 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 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 -18- W.P.(C). No. 3233 of 2019 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 direction to recruit the respondents who were included in the select list -19- W.P.(C). No. 3233 of 2019 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. ......." 16. 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 the 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]** . 17. In **Vinod Kumar v. District Geologist and others [2019 (3) KHC 79]** in the context of Rule 14 of the Kerala Minor Mineral Concession Rules, 2015, this Court held that if the application made seeking permission under sub-rule -20- W.P.(C). No. 3233 of 2019 (2) of Rule 14 for mineral transit pass is not supported by the mandatory documents as per the proviso to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, it cannot be said that there is any failure on the part of the District Geologist in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus for considering that application. When the application made by the petitioner is not supported by the mandatory documents, as per the provisos to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, this Court cannot direct the District Geologist to consider that application in contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law. 18. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that no mandamus can be issued for consideration of Ext.P3 and P5 applications for correction of revenue records filed under -21- W.P.(C). No. 3233 of 2019 Section 27C of the Act, without obtaining favourable orders under Rule 4 of the Rules, as no writ of mandamus can be issued to do something, which is contrary to law. 19. The learned counsel for the petitioner would submit that the petitioner shall file a proper application, invoking the provisions under Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules, for correction of data-bank. In such circumstances, the writ petition is dismissed for the aforesaid reason; however, without prejudice to the right of the petitioner to invoke the statutory remedy under Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules before the appropriate authority and to pursue that application, in accordance with law. ## **Sd/-** ## **ANIL K.NARENDRAN JUDGE** das -22- W.P.(C). No. 3233 of 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE POSSESSION CERTIFICATE WITH NO.K.DIS.1934/18, DATED 8.11.2018 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE LAND TAX PAYMENT RECEIPT WITH NO.KL 11014005394/2018, DATED 4.7.2018, WITH THANDAPPER NO.11917 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P3 TRUE COPY OF APPLICATION DATED 22.11.2018 SUBMITTED BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF RECEIPT WITH NO.42144/18/G1 DATED 23.11.2018.** - **EXHIBIT P5 TRUE COPY OF APPLICATION DATED 4.12.2018 SUBMITTED BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF RECEIPT WITH NO.177/31/18 DATED 4.12.18.** - **EXHIBIT P7 TRUE COPY OF APPLICATION DT.19.2.2019.** - **EXHIBIT P8 TRUE COPY OF APPLICATION DT.5.3.2019 SUBMITTED BEFORE THE 2ND RESPONDENT** - **EXHIBIT P9 TRUE COPY OF RECEIPT WITH No.8913/19.G, DT.15.3.2019.**