Kerala High Court
Manoharan K vs The District Collector ,Kannur on 20 June, 2024
W. P. (C) No. 21698 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
WP(C) NO. 21698 OF 2023
PETITIONER:
MANOHARAN K., AGED 63 YEARS,
S/O. ANANDAN, PRARTHANA, KAVIYOOR, P.O.CHOKLI,
KANNUR DISTRICT, PIN - 670672.
BY ADVS.M/S.M.SASINDRAN & SREEHARI
INDUKALADHARAN
RESPONDENTS:
1 THE DISTRICT COLLECTOR ,KANNUR,
KANNUR DISTRICT, PIN - 670002.
2 THE SUB COLLECTOR/THE REVENUE DIVISIONAL
OFFICER, THALASSERY, KANNUR DISTRICT, PIN -
670101.
3 THE VILLAGE OFFICER, CHOKLI, THALASSERY, KANNUR
DISTRICT, PIN - 670101.
4 THE LOCAL LEVEL MONITORING COMMITTEE,
REPRESENTED BY ITS CONVENER, AGRICULTURAL
OFFICER, CHOKLI, CHOKLI P.O., PIN - 670101,
THALASSERY, KANNUR DISTRICT.
5 THE AGRICULTURAL OFFICER, CHOKLI, THALASSERY,
KANNUR DISTRICT, PIN - 670101.
SMT.AMMINIKUTTY K., SR.GP.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 20.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W. P. (C) No. 21698 of 2023
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MOHAMMED NIAS C. P. , J.
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W. P. (C) No. 21698 of 2023
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Dated this the 20th day of June, 2024
JUDGMENT
The petitioner is stated to be the owner of the property
comprised in Survey No.2/193 of Chokli Village in Kannur District
covered by Ext.P1 sale deed. The property was not included in the
databank. The petitioner preferred Ext.P2 application under Form
6 of the Kerala Conservation of Paddy Land and Wetland Act and
Rules, 2008, (for short 'the Act and the Rules') seeking permission for
a change of user of the property.
2. The learned counsel for the petitioner submits that Ext.P4
report submitted by the Village Officer along with a sketch clearly
shows that there was no paddy land near the petitioner's property
and that, the petitioner's property had coconut trees and other
improvements. The Revenue Divisional Officer (RDO) had, again
called for a report from the Village Officer who then reported that
the property was surrounded by mangroves. By Ext.P9, the RDO
rejected the application preferred under Form 6 holding that the
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Local Level Monitoring Committee (LLMC) had taken a decision, as
per Ext.P13, to include the property as a wetland in the databank.
The learned counsel for the petitioner challenges Ext.P9 order
passed by the RDO under Form 6 on the ground that, none of the
requirements needed for including the property as a 'wetland'
arises in this case. He also submits that, at any rate, the decision of
the LLMC, as seen from Ext.P13, to include the property in the
databank is passed without hearing the petitioner and the inclusion
of the property after it was not included earlier in the published
databank, affects the proprietary rights of the petitioner. The
factual positions were also not considered while passing Ext.P9
order as the reports of the revenue officials clearly show that there
were no paddy fields near the property and there was no chance of
the change of user affecting the water flow to nearby paddy fields.
Ext.P12 report obtained from the Agricultural Officer was totally
without jurisdiction as he had no authority to file a report in a case
where the finding was that the subject property should be treated
as a wetland.
3. The Government has filed a counter in which it is stated
that the Village Officer found that the land was recently filled up
and that the adjacent properties were wetlands apart from the
existence of mangroves near the property. The matter was referred
to the Agricultural Officer for getting the remarks of the LLMC on
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the points suggested by the Village Officer. The Agricultural Officer
submitted a report on 15.12.2021 stating that the LLMC had
inspected the property and found that the southern and western
sides of the property were filled with mangroves and the said fields
are marshy lands and that, the conversion of the land in question
would adversely affect the ecological system of the nearby
mangrove fields and hence, the LLMC decided to include the
subject land in the databank as a wetland.
4. The learned Government Pleader submits that the LLMC
was within its power to include the property in the databank under
Rule 4(5) of the Act and the Rules. The learned Government
Pleader also argues that under Rule 4(6) there is a remedy to the
petitioner for moving the LLMC within 90 days from the publication
of the databank.
5. Heard Sri.M.Sasindran, learned counsel appearing for the
petitioner and Smt.Amminikutty K., Senior Government Pleader
appearing for the respondents.
6. After having heard the learned counsel on either side, it is
to be noted that Ext.P9 was passed ignoring the earlier report of
the Village Officer and relying on the report of the Agricultural
Officer, who under the Rules was not entitled to file a report as far
as for inclusion of the property as a 'wetland' as per Rule 4(4e) of
the Rules which reads as follows:
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"If the applications received as mentioned in sub rule (4d) is
regarding paddy lands, it shall be sent to the Agricultural
Officer concerned and if it is regarding wetland, to the
Village Officer for a report and as the case may be, the
Agricultural Officer or Village Officer shall submit a report
on that within one month."
7. The learned counsel for the petitioner submits that, since
the property was not initially included in the databank, the
subsequent inclusion in the databank by the LLMC can only be with
notice to the owner as his civil rights are affected. The learned
Government Pleader submits that the Act does not contemplate a
hearing before including a property in the databank.
8. There cannot be any dispute that, including a property in
the databank has 'civil consequences' which expression is wide and
encompasses infractions of not merely property or personal rights
but of civil liberties, material deprivations and non-pecuniary
damages. In its wide umbrella comes everything that affects a
citizen in his civil life. Such an order/action cannot be taken
without giving the said person notice and disclosing to him the
materials relied on by the authorities to subsequently include the
property in the data bank. In such cases, it is of fundamental
importance to provide an opportunity for hearing before making
any decision and the same must be treated as a basic requirement
in any legal proceedings. In situations such as the one noted above,
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the fact that the statute does not provide for a hearing does not
matter at all. It is trite that the principles of natural justice must be
read into the unoccupied interstices of the statute unless there is a
clear mandate to the contrary.
9. The Hon'ble Supreme Court in Institute of Chartered
Accountants of India v. L.K. Ratna and Others [1986 KHC
706], relied on the following observations of Sir William Wade's
erudite and classic work on 'Administrative Law', that reads as
follows:
"Some of those cases are mentioned in Sir William Wade's
erudite and classic work on "Administrative Law". But as
that learned author observes, "in principle there ought to
be an observance of natural justice equally at both stages",
and "if natural justice is violated at the first stage, the
right of appeal is not so much a true right of appeal as a
corrected initial hearing: instead of fair trial followed by
appeal, the procedure is reduced to unfair trial followed by
fair trial." And he makes reference to the observations of
Megarry J. in Leary v. National Union of Vehicle
Builders, (1971) 1 Ch. 34. Treating with another aspect of
the point, that learned Judge said: "If one accepts the
contention that a defect of natural justice in the trial body
can be cured by the presence of natural justice in the
appellate body, this has the result of depriving the
member of his right of appeal from the expelling body. If
the rules and the law combine to give the member the
right to a fair trial and the right of appeal, why should he
be told that he ought to be satisfied with an unjust trial
and a fair appeal? Even if the appeal is treated as a
hearing de novo, the member is being stripped of his right
to appeal to another body from the effective decision to
expel him. I cannot think that natural justice is satisfied by
a process whereby an unfair trial, though not resulting in a
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valid expulsion, will nevertheless have the effect of
depriving the member of his right of appeal when a valid
decision to expel him is subsequently made. Such a
deprivation would be a powerful result to be achieved by
what in law is a mere nullity, and it is no mere triviality
that might be justified on the ground that natural justice
does not mean perfect justice. As a general rule, at all
events, I hold that a failure of natural justice in the trial
body cannot be cured by a sufficiency of natural justice in
an appellate body." The view taken by Megarry, J. was
followed by the Ontario High Court in Canada in Re
Cardinal and Board of Commissioners of Police of
City of Cornwall, [1974] 42 D.L.R. (3d) 323. The Supreme
Court of New Zealand was similarly inclined in Wislang v.
Medical Practitioners Disciplinary Committee, (1974)
1 N.Z.L.R. 29 and so was the Court of Appeal of New
Zealand in Reid v. Rowley, (1977) 2 N.Z.L.R. 472."
10. It is well settled that the principles of natural justice are
grounded in procedural fairness which ensures making correct
decisions. The inclusion of the property in a databank after the
property was not included in the original notification is certainly
prejudicial to the rights of the party. The opportunity to provide a
hearing before making any decision was considered to be a basic
requirement initially in court proceedings, but later extended to
other quasi-judicial authorities and tribunals and now even to
administrative actions where the decision of the authority may
result in civil consequences. Though every violation of a facet of
natural justice may not lead to the conclusion that the order passed
is always null or void, in the instant case, as stated above, the order
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certainly results in adverse civil consequences to the party.
11. Given the above, the learned Government pleader's
argument that even if the property is subsequently included, the
party will have an opportunity to agitate the same before the LLMC
and therefore, the lack of notice while including the property in the
databank will not be material has to be rejected.
12. In view of the above, Exts.P9 & P13 are quashed. In case
the LLMC decides to include the property as a 'wetland', it shall
issue a notice to the petitioner, hear him and pass appropriate
orders in terms of the Act and rules. In case the petitioner obtains
favourable orders from the LLMC, it will be open to the petitioner
to request the RDO to reconsider Ext.P2 application already filed
under Form 6 and the same shall be considered in accordance with
law without further delay. In the event the LLMC reconsiders the
issue and still decides to include the property as a wetland in the
data bank, it will be open to the petitioner to invoke the provisions
of the Act seeking deletion from the data bank.
The Writ Petition is allowed as above.
Sd/-
MOHAMMED NIAS C. P.,
JUDGE
MMG
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APPENDIX OF WP(C).NO.21698/2023
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE SALE DEED
NO.1774/2019 OF CHOKLI SRO DATED 13-
11-2019.
EXHIBIT P2 A TRUE COPY OF THE APPLICATION DATED
27-08-2020 SUBMITTED BY THE PETITIONER
BEFORE THE REVENUE DIVISIONAL OFFICER,
THALASSERY, THE FIRST RESPONDENT DATED
AUGUST 2020.
EXHIBIT P3 A TRUE COPY OF THE LETTER NO.KCPL &
WL(AMEND) ACT/683/2020-K DATED 07-09-
2020 ISSUED BY THE FIRST RESPONDENT TO
THE 2ND RESPONDENT VILLAGE OFFICER.
EXHIBIT P4 A TRUE COPY OF THE REPORT NO.32.2020
DATED 21-10-2020 ALONG WITH THE
MAHAZAR, SUBMITTED BY THE SECOND
RESPONDENT VILLAGE OFFICER, CHOKLI, TO
THE FIRST RESPONDENT RDO
EXHIBIT P5 A TRUE COPY OF THE PROFORMA REPORT
DATED 21-10-2020 SUBMITTED BY THE
VILLAGE OFFICER TO THE RDO
EXHIBIT P6 A TRUE COPY OF THE LETTER
NO.RDOTLY/1565/2020-K DATED 05-12-2020
ISSUED BY THE 2ND RESPONDENT
EXHIBIT P7 A TRUE COPY OF THE REPORT DATED
11.1.2021 SUBMITTED BY THE 2ND
RESPONDENT VILLAGE OFFICER TO THE 1ST
RESPONDENT
EXHIBIT P8 A TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT DATED 20.10.2021 IN W.P.
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EXHIBIT P9 A TRUE COPY OF THE ORDER NO.RDO
TLY/1565/2020-K DATED 12.01.2022
ISSUED BY THE 2ND RESPONDENT
EXHIBIT P10 A TRUE COPY OF THE JUDGMENT DATED
01.12.2022 OF THIS HON'BLE COURT IN
CON.CASE(C)NO.1950/2022.
EXHIBIT P11 A TRUE COPY OF THE LETTER
NO.RDOTLY/1565/2020-K DATED 08.03.2023
ISSUED BY THE STATE PUBLIC INFORMATION
OFFICER, OFFICE OF THE SUB COLLECTOR,
THALASSERY.
EXHIBIT P12 A TRUE COPY OF THE REPORT OF THE
AGRICULTURAL OFFICER, CHOKLI SUBMITTED
BEFORE THE SUB COLLECTOR, THALASSERY
ON 15.12.2021.
EXHIBIT P13 A TRUE COPY OF THE MINUTES OF THE
LOCAL LEVEL MONITORING COMMITTEE,
CHOKLI HELD ON 18.11.2021
