Yousuf Chalil v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 25TH DAY OF JULY 2019 / 3RD SRAVANA, 1941 WP(C).No.15893 of 2019** ## **PETITIONER:** **YOUSUF CHALIL, S/O. MOHAMMED KUTTY C, AGED 45 YEARS, CHALIL HOUSE, POST NANNAMBRA, TIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.C.M.MOHAMMED IQUABAL** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE AGRICULTURAL DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 01 2 THE DISTRICT COLLECTOR, MALAPPURAM, COLLECTORATE, POST MALAPPURAM, PIN-676 505 3 THE AGRICULTURAL OFFICER, NANNAMBRA AGRICULTURAL OFFICE, POST NANNAMBRA, PIN-676 320 4 THE DISTRICT LEVEL AUTHORIZED COMMITTEE, REPRESENTED BY ITS CHAIRMAN, DISTRICT COLLECTOR, MALAPPURAM, COLLECTORATE, POST MALAPPURAM, PIN-676 505 5 THE LOCAL LEVEL MONITORING COMMITTEE, NANNAMBRA AGRICULTURAL OFFICE, POST NANNAMBRA, PIN-676 320, REPRESENTED BY ITS CONVENER** **SRI MANU RAJ K.J- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 15893 of 2019 **==> picture [91 x 10] intentionally omitted <==** ## **JUDGMENT** The petitioner, who is stated to be the owner of 4 cents of paddy land in Re.Sy.No.143/5-1 of Nannambra Village, covered by Ext.P1 sale deed No.1376/2019 dated 12.04.2019 of the Sub Registrar Office, Tanur has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to permit him to convert the paddy land covered by Ext.P1 document for constructing a residential house. The petitioner has also sought for a writ of mandamus commanding the 5[th] respondent Local Level Monitoring Committee to refer Ext.P3 application dated 17.05.2019 to the 4[th] respondent District Level Authorised Committee with necessary recommendation to consider the same within a time limit stipulated by this Court; and a writ of mandamus commanding the 4[th] respondent to consider and pass orders on Ext.P3 application within a time limit stipulated by this Court, on receipt of a recommendation from the 5[th] respondent. 2. On 11.06.2019, when this writ petition came up for W.P.(C). No. 15893 of 2019 -3- admission, the learned Government Pleader pointed out that the petitioner purchased the land in question vide Ext.P1 sale deed dated 12.04.2019, which is one executed after the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 4. The pleadings and materials on record would show that the petitioner purchased the paddy land in question, on 12.04.2019, vide Ext.P1 sale deed, much after the commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the Rules made thereunder. 5. 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 sustain the ecological system in the State of Kerala. Clause (iii) of Section 2 of the Act defines the term 'conversion' to mean the situation whereby, land that has been under paddy -4- W.P.(C). No. 15893 of 2019 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 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 W.P.(C). No. 15893 of 2019 -5- 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 (i) of sub-section (3) of Section 5 of the Kerala Conservation of Paddy Land and Wetland Act, the Local Level Monitoring Committee shall have the power, subject to the provisions of the said Act, to recommend to the District Level Authorised Committee for the reclamation of paddy land, for construction of residential building of the owner of the paddy land. As per the proviso to clause (i), the Local Level Monitoring Committee shall not recommend for filling of paddy land of more than an extent of 4.04 Ares in Panchayat or an extent of 2.02 Ares in Municipality/ Corporation area, as the case may be, for the construction of residential building of the owner of the paddy land. 8. Section 9 of the Act deal with constitution of District Level Authorised Committee. As per sub-section (1) of -6- W.P.(C). No. 15893 of 2019 Section 9, notwithstanding anything contained in Section 3, each Collector shall constitute in the District, District Level Authorised Committee for considering the applications for reclamation of paddy land for the construction of residential building to the owner of paddy land and for taking suitable decision. As per proviso to sub-section (1) of Section 9, the District Level Authorised Committee shall not take any decision granting permission for the filling up of paddy land for the construction of residential building exceeding an extent of 4.04 Ares in a Panchayat and an extent of 2.02 Ares in a Municipality/Corporation, as the case may be. As per subsection (5) of Section 9, the District Level Authorised Committee shall take decision on the recommendations made available to it within one month. 9. As per sub-section (8) of Section 9 of the Act, notwithstanding anything contained in sub-section (1), no application shall be considered by the District Level Authorised Committee, unless the Local Level Monitoring Committee has recommended that such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining -7- W.P.(C). No. 15893 of 2019 paddy land; the owner of the paddy land or his family do not own a suitable land for this purpose in that District; the building to be constructed is for his own purpose; and such paddy land is not situated surrounded by other paddy lands. As per sub-section (9) of Section 9, the order issued by the District Level Authorised Committee under sub-section (5) or the District Collector under sub-section (7) shall clearly indicate the survey number of the land and the extent of the land in each survey number for which sanction has been accorded. A sketch of such land indicating the aforementioned details shall be appended to the order. 10. As per sub-rule (1) of Rule 5 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008, an application for reclamation of paddy land for the construction of residential building for the owner of the paddy land shall be submitted before the Local Level Monitoring Committee in Form No.1, after remitting the requisite Court fee of Rs.10/-. As per sub-rule (2) of Rule 5, the Local Level Monitoring Committee has to obtain an enquiry report from the Agricultural Officer and Village Officer on the matters -8- W.P.(C). No. 15893 of 2019 enumerated in sub-section (7) of Section 9 and thereafter, place that application before the District Level Authorised Committee with its recommendations. Then, the District Level Authorised Committee shall take a decision on that recommendation made by the Local Level Monitoring Committee, within the time limit specified in sub-rule (2) of Rule 5. In the application submitted in Form No.1, the applicant has to give a declaration that such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land; the applicant, who is the owner of the paddy land or his family do not own a suitable land for this purpose in that District; the building to be constructed is for his own purpose; and such paddy land is not situated surrounded by other paddy lands. 11. In **Thankachan K.S. v. District Collector, Alappuzha and others [2017 (3) KHC 402]** , in the context of sub-section (8) of Section 9 of the Kerala Conservation of Paddy Land and Wetland Act, this Court held that the purpose of exemption is for building a residential house in a paddy land held by the owner. The specific word employed in Section -9- W.P.(C). No. 15893 of 2019 9 of the Act is 'considering the applications for reclamation of paddy land for the construction of residential building to the owner of the paddy land'. The intention is to provide the cultivator/farmer/agriculturist with a residence within his cultivable paddy land. A property purchased for the purpose of constructing residential building, after implementation of the Kerala Conservation of Paddy Land and Wetland Act, 2008, cannot be exempted. 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. If each member of the family is excluded, then the statutory restriction would be rendered in effective and otiose. Paragraphs 5, 6 and 7 of the said decision read thus; “5. The petitioner relies on a decision of this Court, -10- W.P.(C). No. 15893 of 2019 reported in Joseph Thomas v. Agricultural Officer, Alappuzha and others, 2015 (5) KHC 103. A reading of the decision indicates that 'Family' as referred under S.9(8)(ii) of the Paddy Land Act was found to be the family consisting of applicant, his wife and children and it cannot be stretched to an extent to include his father or grandfather. On facts the present case can be distinguished. In the present case, the father claims exemption and the rejection has been on the ground that the family has another property. If each member of the family is excluded according to the person before Court, then, the statutory restriction would be rendered ineffective and otiose. 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 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, -11- W.P.(C). No. 15893 of 2019 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 interdict.” 12. In the instant case, the petitioner purchased the paddy land in question on 12.04.2019, vide Ext.P1 sale deed, for the purpose of constructing a residential building, much after the enactment of the Kerala Conservation of Paddy Land and Wetland Act. The said land forms part of a larger extent of paddy land by name 'Payaningal Nilam', as evident from the schedule of Ext.P1 sale deed. The learned counsel for the petitioner would submit that, originally the petitioner purchased property in the middle of 'Payaningal Nilam' for constructing a residential building. Since no permission was granted for constructing a residential building in that property, the petitioner exchanged that property with the property -12- W.P.(C). No. 15893 of 2019 covered by Ext.P1 sale deed. When the intention of Section 9 of the Act is to provide the cultivator/farmer/agriculturist a residence within his cultivable land, the petitioner, who purchased 4 cents of paddy land for the purpose of constructing a house, that too in the year 2019, much after the enactment of the Kerala Conservation of Paddy Land and Wetland Act, is not entitled to seek any exemption from the prohibition of conversion or reclamation of paddy land imposed in Section 3 of the Act, by seeking permission under sub-section (1) of Section 9 of the Act for reclamation of that paddy land for the construction of a residential building. Viewed in the light of the law laid down in the decision referred to supra, conclusion is irresistible that the petitioner cannot invoke the provisions under sub-section (1) of Section 9 of the Act, in respect of the property covered by Ext.P1 sale deed. 13. 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 -13- W.P.(C). No. 15893 of 2019 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. 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 -14- W.P.(C). No. 15893 of 2019 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. ......." 14. 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]** . 15. When the petitioner is not entitled to seek -15- W.P.(C). No. 15893 of 2019 exemption from the prohibition of conversion or reclamation of paddy land, in respect of his property covered by Ext.P1 sale deed dated 12.04.2019, by invoking the provision under subsection (1) of Section 9 of the Act, this Court cannot direct consideration of that application in contravention of the statutory provisions, as no mandamus can be issued to do something contrary to law. In the result, the writ petition fails and the same is accordingly, dismissed. **Sd/-** **ANIL K.NARENDRAN JUDGE** das -16- W.P.(C). No. 15893 of 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF DOCUMENT NO. 1376/2019 DATED 12.4.2019 OF SRO TANUR.** **EXHIBIT P2 THE TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY NANNAMBRA VILLAGE OFFICE DATED 10.5.2019.** **EXHIBIT P3 THE TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE 5TH RESPONDENT DATED 17.05.2019.** **EXHIBIT P4 THE TRUE COPY OF THE DOCUMENT NO.3495/2014 OF SRO TANUR DATED 29/9/2014** **EXHIBIT P5 THE TRUE COPY OF THE DOCUMENT NO.1377/2019 OF SRO TANUR DATED 12/4/2019**