Dr. V.G.Pradeep Kumar vs The Revenue Divisional Officer
2021 Latest Caselaw 16640 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
  WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
                      WP(C) NO. 16715 OF 2020
PETITIONER:

          DR. V.G.PRADEEP KUMAR
          AGED 51 YEARS
          S/O GOVINDANKUTTY NAIR, 28/248 A, SAKETHAM,
          POTTAMMAL JUNCTION, CHEVARAMBALAM P.O.KOZHIKODE-673
          017.
          BY ADVS.
          SRI.T.KRISHNANUNNI (SR.)
          SHRI.ANISH ANTONY ANATHAZHATH
          SHRI. SUNIL KUMAR M.


RESPONDENT:

          THE REVENUE DIVISIONAL OFFICER
          REVENUE DIVISIONAL OFFICE, TIRUR, MALAPPURAM-676
          101.
          BY GOVERNMENT PLEADER SRI.SHYAMJI RAM.

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.16715/2020                   2

                                                              (C.R.)
                                JUDGMENT

The petitioner is the owner in possession of a total extent of 44.76

Ares of land comprised in Re.Sy.No.87/1 and 87/3 of Thavanur Village,

Ponnani Taluk, Malappuram District. It is stated that, though the lands are

classified in the revenue records as 'nilam' for about nearly 30 years, the

lands were garden land with coconut, various plantains and other trees.

Through Ext.P1 notice dated 9.5.2014, the District Collector, Malappuram

directed the petitioner to restore the land situated in Re-Sy.No.87/3 to its

original condition as 'paddy land'. This order was challenged before this

Court through W.P.(C)No.13290/2014. That writ petition was disposed of

as under:-

"3. Learned counsel for the petitioner has relied upon the judgment reported in 2010 (2) KLT 617 (Praveen v. Land Revenue Commissioner) wherein it is held that the application of the Act is confined to paddy land and wetland alone and as per Section 3, except in accordance with the provisions of the Act, the owner or occupier or the person in custody of any paddy land shall not undertaken any activity for conversion or reclamation of such paddy land, after coming into force of the Act. It has been made clear that, if the land is not a paddy land or wet land as on the date of commencement of the Act, relief can be granted with reference to Clause 6 of the Kerala Land Utilisation Order.

4. Heard learned Government Pleader as well.

5. After going through the pleadings and proceedings, this Court finds that the matter requires reconsideration, more so, when the petitioner was never given any opportunity of hearing before passing Ext.P1. In such circumstances, Ext.P1 is

set aside and the respondent is directed to reconsider the matter afresh after affording an opportunity of hearing to the parties concerned. The proceedings shall be finalized in accordance with law, as early as possible, at any rate, within a period of two months from the date of receipt of a copy of the judgment. Petitioner shall produce a copy of the judgment before the respondent for compliance.

Accordingly, writ petition is disposed of."

Pursuant to Ext.P2, the District Collector, Malappuram issued Ext.P3 order

holding that the property is 'nilam' and directed the maintenance of status

quo in respect of the property. Thereupon, the petitioner filed Ext.P4

application seeking correction of the entry classifying the property as 'nilam'

in the Basic Tax Register. He also filed W.P.(C)No.32945/2014, which was

disposed of directing the Local Monitoring Committee, Thavanur to conduct

an inspection of the property and further directing that, if the land cannot

be classified as 'paddy land', to carry out necessary corrections in the draft

data bank. By a majority opinion, the Local Level Monitoring Committee,

through Ext.P6 proceedings, held that the property had been converted

much prior to the commencement of Kerala Conservation of Paddy Land

and Wetland Act, 2008 (hereinafter referred to as the '2008 Act' for short)

and that the coconut trees in the property were at least 20 years old.

Despite the finding of the Local Level Monitoring Committee nothing

further was done in the matter. The writ petitioner thereupon approached

this Court alleging violation of the directions contained in W.P.

(C)No.32945/2014. By Ext.P7 order in Contempt Case (C)No.1971/2016,

this Court opined that the decision of the Local Level Monitoring Committee

must be that of its majority and the Agricultural Officer, who was the lone

dissenter cannot take a view outside the decision of the Committee. This

Court also directed the petitioner to deposit the charges for obtaining

satellite images of the property without prejudice to the contention of the

petitioner that the majority decision of the Local Level Monitoring

Committee will prevail over that of the Agricultural Officer. On coming to

know that a fresh data bank is under preparation, the petitioner submitted

Ext.P8 application again for correction of the entry in the data bank. The

Contempt of Court Case (C) was also withdrawn with liberty to pursue the

fresh application filed by the petitioner. The Local Level Monitoring

Committee, through Ext.P10, again by the majority, took the view that the

property of the petitioner is to be excluded from the data bank. The

Agricultural Officer, Thavanur and the Village Officer, Thavanur expressed

their dissent in the matter. Thereafter, the respondent vide his proceedings

dated 7.1.2020 rejected the findings of the majority of the members of the

Local Level Monitoring Committee and held that the properties comprised

in Re.Sy.No.87/3, is to be retained as 'nilam' in the data bank (Ext.P11).

Ext.P12 is the report of the Kerala State Remote Sensing & Environment

Centre (KSREC), which has been relied upon in Ext.P11. This writ petition

has been filed challenging Ext.P11 order of the Revenue Divisional Officer,

Tirur, who is the sole respondent in this writ petition.

2. I have heard Sri. T. Krishnanunni, the learned senior counsel

instructed by Sri. Anish Antony, for the writ petitioner and Sri. Syamji Ram,

the learned Government pleader appearing for the respondent.

3. The learned senior counsel with reference to Ext.P1, to Ext.P2

judgment of this Court and to Exts.P6 and P10 proceedings of the Local

Level Monitoring Committee constituted under the provisions of the 2008

Act, would contend that the respondent Revenue Divisional Officer could

not have ignored the finding of the majority of members of the Local Level

Monitoring Committee to hold that the lands comprised in Re.Sy.No.87/3 of

Thavanur Village, in the ownership and possession of the writ petitioner

should be classified as 'paddy land' in the data bank prepared under the

provisions of the 2008 Act. The learned senior counsel would also refer to

Ext.P12 to contend that even in the report of the KSREC, there is no

categoric finding to establish that the lands comprised in Re.Sy.No.87/3

were 'paddy lands' even on the date of commencement of 2008 Act. He also

submits that inspection stated to have been carried out by the respondent

prior to the issuance of Ext.P11 order was carried out without any notice to

him.

4. The learned Government Pleader, on the other hand, contends

that the land in question was properly identified as 'paddy land' going by the

description in the revenue records and with reference to Ext.P12 report of

the KSREC. He submits that the respondent had also conducted a site

inspection and upon such inspection, he had been convinced that the land

was properly to be classified as 'paddy land' in the data bank prepared under

the provisions of the 2008 Act.

5. I have considered the rival contentions. Section 5 of the 2008

Act deals with the Constitution of the Local Level Monitoring Committee for

each Panchayat or Municipality and sets out the powers and functions of the

said Committee. Section 5(4) reads as follows:-

"5. Constitution of Local Level Monitoring Committee.- (1) xxxx xxx xxx xxx (4) The Committee shall perform the following functions, namely:-

(i) to prepare the data-bank with the details of the cultivable paddy land and wetland, within the area of jurisdiction of the Committee, with the help of the map prepared or to be prepared by the State Land Use Board or Centre-State Sciene and Technology Institutions on the basis of satellite pictures by incorporating the survey numbers and extent in the data-bank and get it notified by the concerned Panchayat/Municipality/Corporation, in such manner as may be prescribed, and exhibit the same for the information of the public, in the respective Panchayat/Municipality/Corporation Office and in the Village Office/Offices;

Provided that any person aggrieved by the entries in the data bank so exhibited, may prefer an application to the Revenue Divisional Officer concerned and the Revenue Divisional Officer shall dispose of such application within a period of three months after following such procedure, as may be prescribed,and in case the Revenue Divisional Officer finds that the land included as paddy land or wetland in the said data bank is not paddy land or wetland, it shall be deemed to have been removed from the data bank.

(ii) to make alternate arrangements under Section 16 where a paddy land is left fallow without taking steps in spite of the instructions given by the Committee under item (iv) of sub- section (3);

(iii) to prepare detailed guidelines for the protection of the paddy lands/wetlands in the areas under the jurisdiction of the Committee."

It is clear from the provisions of sub-section (4) of Section 5 that the duty

for the preparation of the data bank and the inclusion of lands in the data

bank as cultivable paddy land or wetland vest with the Committee. The

proviso to Section 5(4) (i) makes it clear that any person aggrieved by the

entries in the data bank may apply to the Revenue Divisional Officer for

correction of the records. In the facts of the present case, the Local Level

Monitoring Committee had itself found, through Ext.P6 and through

Ext.P10 prepared at different points of time, that the land comprised in

Re.Sy.N.87/3 ought to be excluded from the data bank. It is no doubt true

that both Exts.P7 and P10 were the decisions taken by a majority of the

Committee. But, as observed by this Court in Ext.P7, that fact does not in

any manner mean that the decision taken by the majority of the members

should not be seen as the decision of the Committee. Shackleton on the

Law and Practice of Meetings (Eleventh Edition), 2010 opines

thus:-

"7-30. Majority is a term signifying the greater number. In legislative and deliberative assemblies, it is usual to decide questions by a majority of those present and voting. This is sometimes expressed as a "simple" majority, which means that a motion is carried by the mere fact that more votes are

cast for than against, as distinct from a "special" majority where the size of the majority is critical.

The principle has long been established that the will of a corporation or body can only be expressed by the whole or a majority of its members, and the act of a majority is regarded as the act of the whole.

Twelve persons were incorporated to elect a chaplain for a church, and by arrangement three of the 12 were permitted to make the choice subject to the consent of the major part of the inhabitants of the parish. At a meeting, two out of the three, with the assent of the major part of the inhabitants, agreed to a proposal but the third objected. In confirming the appointment, Lord Chancellor Hardwicke said "It cannot be disputed, that whenever a certain number are incorporated, a major part of them may do any corporate act; so if all are summoned, and part appear, a major part of those that appear may do a corporate act, though nothing be mentioned in the charter of the major part". (Att-Gen v. Davy (1741) 2 Atk

212)

The above decision was followed in Grindle v. Barker where it was held that if a power of a public nature be committed to several people, who all meet for the purpose of executing it, the act of the majority will bind the minority.

It has been held that the same rule will not apply where no duty of a public nature is involved...................

A majority vote binds the minority

7-31Unless there is some provision to the contrary in the instrument by which a corporation is formed, the resolution of the majority, upon any question, is binding on the minority and the corporation, but the rules must be followed............."

In State of M.P. v. Mahendra Gupta, (2018) 3 SCC 635, it was held: -

"15. The multi-member body transacts its business after debate, consultation and discussion. The view of multi-member body is expressed unanimously or by votes. For various kind of decisions by multi-member body special majorities are also provided for acceptance of the decision. Normally, all decisions of a multi-member body are expressed by opinion of majority

of the members present except where the special majorities are provided in the statute itself."

Thereafter, referring to Shackleton on the Law and Practice of

Meetings it was held: -

"17. Although the 1994 Rules do not expressly provide that decision of the State Transport Authority shall be taken in accordance with the opinions of the majority but there being no special majority provided for decision to be taken in the meeting of the State Transport Authority, normal rule that decision by majority of the members present has to be followed. In the present case when three members were present and quorum was complete, the decision taken by majority i.e. opinion of two members shall form the valid decision of the State Transport Authority."

It is not the law that the decision of the Local Level Monitoring Committee

must be by some special majority or that it must necessarily bear the stamp

of approval of its official members. Therefore P.6 and P.10 decisions taken

by the majority of the members should be seen as the decision of the

Committee.

6. In Adani Infrastructure Developers Pvt. Ltd., Mumbai

and others v. State of Kerala and others; 2015(1)KLT 651, a Division

Bench of this Court held as follows:

"10. Section 3 prohibits conversion or reclamation of paddy land. S.3 indicates that on and from the date of commencement of the Act, the owner or the occupier or any person in custody of any paddy land shall not undertake any activity for conversion or reclamation of the paddy land except in accordance with the provisions of the Act. S.5(1) deals with constitution of LLMC. Their power is specifically dealt with under sub-section (3) of S.5 and one of the functions specified under sub-section (4) of S.5 is to prepare the data bank with

the details of the cultivable paddy land and wet land within their jurisdiction and get it notified by the concerned Panchayath/ Municipality/Corporation in the manner prescribed and to exhibit the same for information of the public. Apparently, when this property is included in the draft data bank prepared by the LLMC, it has to be assumed that the property is paddy land which cannot be converted or reclaimed other than in accordance with the provisions of the Act. When the land has been included in the draft data bank, there is no relevance to the report prepared by the R.D.O. Of course, the R.D.O. has powers under the Act which is clearly specified, which do not include the power to form an opinion as to whether the land in question is paddy land or not. Therefore, his opinion in Ext.P7(a) and P7(b) will have no relevance, as matters stand now, since the property have already been included in the draft data bank."

Therefore, I am of the view that there is merit in the contention raised by

the Senior Counsel for the petitioner that the Revenue Divisional Officer

could not have ignored the findings of the Local Level Monitoring

Committee in Exts.P6 and P10 to take the view that the land comprised in

Re.Sy.No.87/3 should be retained as 'paddy land' in the data bank prepared

under the provisions of the 2008 Act. Ext.p12 report of the KSREC does not

conclusively state as to whether the land was remaining as a 'paddy land' on

the date of coming into force of the 2008 Act. I must also notice that even in

Ext.P1 proceedings dated 9.5.2014, it was the categoric assertion of the

District Collector that the lands belonging to the petitioner in Re.Sy.No.87/3

of Thavanur Village had been converted at least 10 years prior to the date of

that notice which shows that the land remains converted much prior to

coming into force of the 2008 Act. Therefore, Ext.P11 is quashed. The

respondent is directed to take a fresh decision in the matter in the light of

the aforesaid observations, within a period of three months from the date of

receipt of a certified copy of this judgment, after affording an opportunity of

hearing to the petitioner or his duly authorized representative.

sd/-

GOPINATH P.

JUDGE acd

APPENDIX OF WP(C) 16715/2020

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 9.5.2014 ISSUED BY THE DISTRICT COLLECTOR, MALAPPURAM

EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 2.6.2014 IN WPC 13290/2014

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 16.8.2014 PASSED BY THE DISTRICT COLLECTOR, MALAPPURAM

EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 3.9.2014 SUBMITTED BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICE, TIRUR

EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 21.12.2015 IN WPC NO 32945/2014

EXHIBIT P6 TRUE COPY OF THE MINUTES OF THE LOCAL LEVEL MONITORING COMMITTEE, THAVANUR, DATED 19.2.2016

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 21.3.2017 PASSED IN CONTEMPT CASE (CIVIL) NO 1971 /

EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 22.8.2017 SUBMITTED BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICE, TIRUR

EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 5.10.2017 IN CONTEMPT CASE (CIVIL) NO 1971/2016

EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS OF THE LOCAL LEVEL MONITORING COMMITTEE, THAVANUR AND ITS DECISION DATED 29.8.2019

EXHIBIT P11 TRUE COPY OF THE ORDER DATED 7.1.2020 PASSED BY THE REVENUE DIVISIONAL OFFICER, TIRUR

EXHIBIT P12 TRUE COPY OF THE REPORT SUBMITTED BY THE KERALA STATE REMOTE SENDING AND ENVIRONMENT CENTRE (KSREC)