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2017 DIGILAW 660 (KER)

Paul J. Manjooran v. Suhas

2017-04-04

A.MUHAMED MUSTAQUE

body2017
JUDGMENT : A. Muhamed Mustaque, J. 1. This contempt petition has arisen from the judgment directing the Collector to pass orders under Clause 6 of the Kerala Land Utilisation Order, 1967 (hereinafter referred to as 'KLU Order' for short). This direction was not complied citing incorporation of section 3A under Act 28 of 2008 on 17.11.2016. By passage of time, on 23.11.2016, Section 3A was abrogated from Act 28 of 2008. In that scenario, the original order would survive and nothing would hinder the Revenue Divisional Officer in granting permission under Clause 6 of the KLU Order. 2. The learned Government Pleader relying on circular dated 22.12.2016, argued that the Government has restricted extent of conversion that can be made in respect of the land that was converted before 2008. The learned Government Pleader further submitted that this circular is issued in tune with the judgment of the Hon'ble Supreme Court, in Revenue Divisional Officer v. Jalaja Dileep [2015 (1) KLT 984 (SC)]. The learned Government Pleader also referred to the circular dated 1.3.2017 issued by the Revenue Department in the manner in which the application for construction of a building in a reclaimed land has to be considered and also in relation to the building constructed in such reclaimed land. 3. First of all it is to be noted the judgment of the Jalaja Dilieep's case (supra) only refers that in respect of the land, if the property is not included in the paddy land or wet land or data bank, the land is still governed by the provisions of KLU Order. It does not gives any power to the Government in the manner in which it could be restricted for the purpose of utilisation. In fact, once the land is found converted prior to 2008 and unfit for cultivation of any crops as referred in the KLU Order, the revenue authorities have no right in compelling land owner to retain the character of the property as such. This court in fact has considered the scope of power to be exercised by the revenue authorities in Archana Varghese v. District Collector, Pathanamthitta [2015 (2) KHC 39]. This court in Archana Varghese's case (supra) held as follows: "The power vested with the Collector is to compel the holder of the land to use the land for cultivation. The mode of exercise of this power is referred in Clause 7. This court in Archana Varghese's case (supra) held as follows: "The power vested with the Collector is to compel the holder of the land to use the land for cultivation. The mode of exercise of this power is referred in Clause 7. This power is to direct holder of the land to cultivate food crops which were in cultivation. If the paddy was in cultivation, the power can be exercised only to compel cultivation of paddy alone and not other food crops. When land becomes uncultivable for the paddy, the enabling power will become otiose. When the land has become unfit to produce paddy, the Collector cannot compel the land owner to cultivate paddy. The holder of land is free to use the land in accordance with law. Thus, I hold that in respect of paddy land which was converted prior to the enactment of the Act 28 of 2008 no permission is required in terms of Clause 6 of the KLU." 4. In view of the fact that power under Clause 7 cannot be invoked, and the petitioner cannot be compelled to use the land for cultivation of other crops, other than which were in cultivation, State can no longer retain their power which is traceable to Essential Commodities Act to compel the land owner to use the land in a particular manner. It was further held in Archana Varghese's case (supra) as follows (Paragraph 11): "As has been noted under clause 7 of KLUO, the power of the Collector is to direct the holder of land to cultivate those food crops which were under cultivation of the land. After the Act 28 of 2008, the Collector under Clause 7 of KLUO has no power to call upon the holder of the lad to cultivate paddy in the land which is no longer a paddy land in terms of Act 28 of 2008. There is no provision in KLUO to enable the Collector to compel a person to cultivate any other food crops other than the food crops which were under cultivation. it is to be noted that the provisions under the KLUO as noted above are only enabling provisions to secure the objectives of Section 3 of the EC Act. The power being exercised by the Collector under KLUO is only in relation to control production and distribution of food crops. it is to be noted that the provisions under the KLUO as noted above are only enabling provisions to secure the objectives of Section 3 of the EC Act. The power being exercised by the Collector under KLUO is only in relation to control production and distribution of food crops. The provisions under KLUO is only in relation to control production and distribution of food crops. The provisions under KLUO are not a fetter or imposition of a burden on the land. The source of legislation, as referable under the Constitution, clearly indicates that these powers are to be exercised as enabling provisions to secure objectives of Section 3 of the EC Act." 5. In such scenario, State will be compelled to grant such permission under Clause 6 of the KLU Order as it has become more of a formality rather relaxation of any power. Therefore, this court is of the view, that the circular dated 22.12.2016 cannot override the provisions of KLU Order or any statutory provision. Certainly, circular at best has to be understood is a guidelines on the manner in which the powers to be exercised by such authority. It cannot control the statutory provisions or any delegated legislations. If that be so, this court is of the view, the Revenue Divisional Officer is bound to grant such permission to the petitioner under Clause 6 of the KLU Order as ordered by this court. Accordingly the Revenue Divisional Officer is directed to grant permission within a period of four weeks from the receipt of this judgment. The contempt case is closed with a liberty to the petitioner to reopen, if the judgment is not complied.