V.K.Abdul Hameed vs State Of Kerala
2021 Latest Caselaw 1757 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

           THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

     MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                       WP(C).No.4811 OF 2012(B)


PETITIONERS:

      1        V.K.ABDUL HAMEED
               PRESENTLY AT VILLA NO 80,STREET NO 333/24,AL SATWA
               ROAD, AL BADA AREA DUBAI, UNITED ARAB EMIRATES HAVING
               PERMANENT ADDRESS AT FLAT NO D12, ASOKA APARTMENTS,
               MARINE DRIVE, TRIKKANARVATTOM DESOM, ERNAKULAM
               VILLAGE, KANAYANNUR TALUK,KOCHI, KERALA, REP.BY HIS
               POWER OF ATTORNEY HOLDER GEORGE BABU AGED 48,
               S/O.JOHN, KOLARIKKAL HOUSE, SOUTH CHITTOOR, KOCHI
               682027

      2        MRS.LAILA HAMEED
               W/O.V.K.ABDUL HAMMED,PRESENTLY AT VILLA NO 80,STREET
               NO 333/24,AL SATWA ROAD, AL BADA AREA DUBAI, UNITED
               ARAB EMIRATES HAVAING PERMANENT ADDRESS AT FLAT NO
               D12, ASOKA APARTMENTS, MARINE DRIVE, TRIKKANARVATTOM
               DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK,KOCHI,
               KERALA, REP.BY HIS POWER OF ATTORNEY HOLDER GEORGE
               BABU AGED 48, S/O.JOHN, KOLARIKKAL HOUSE, SOUTH
               CHITTOOR, KOCHI 682027

               BY ADVS.
               SRI.LAL K.JOSEPH
               SRI.K.JAYAKUMAR (SR.)
               SMT.M.C.SANITHA
               SRI.V.S.SHIRAZ BAVA
               SRI.A.A.ZIYAD RAHMAN

RESPONDENTS:

      1        STATE OF KERALA
               REP.BY CHIEF SECRETARY, SECRETARIAT,
               THIRUVANANTHAPURAM, PIN-695001

      2        THE SECRETARY
               AGRICULTURE(NCA)DEPARTMENT, THIRUVANANTHAPURAM-695001

      3        THE DISTRICT COLLECTOR
               COLLECTORATE, KAKKANADU, ERNAKULAM PIN-682021

      4        REVENUE DIVISIONAL OFFICER
               FORT KOCHI, ERNAKULAM, PIN-682001
 WP(C).No.4811 OF 2012(B)

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       5       THE PRINCIPAL AGRICULTURE OFFICER
               ERNAKULAM DIST, CIVIL STATION, KAKKANADU, ERNAKULAM
               682050

       6       THE GRAMAM PANCHAYATH
               CHERANELLOOR, SOUTH CHITTOOR, REP.BY ITS SECRETARY,
               PIN-682027

       7       M/S.SUNCON SOMA J.V.CHERANELLOOR PANCHAYATH
               SOUTH CHITTOOR P.O,REP.BY ITS MANAGER, PIN-682027

       8       V.K.RAMESHKUMAR
               AGED 44 YEARS
               S/O.KARUPPAN, VENANATTUTHARA HOUSE, EDAYAKUNNAM,
               CHERANELLOOR VILLAGE, SOUTH CHITTOOR P.O.,KOCHI-27

       9       P.K.RADHAKRISHNAN
               S/O.LATE KANNAN, PURAVATHURA HOUSE,
               EDAYAKUNNAM,CHERANELLOOR VILLAGE, SOUTH CHITTOOR,
               KOCHI-27

               R1-R7   BY ADV.SMT.RANJITA, GOVERNMENT PLEADER
               R6 BY   ADV. SRI.S.SHANAVAS KHAN
               R7 BY   ADV. SRI.MILLU DANDAPANI
               R8-R9   BY ADV. SRI.P.G.PRAMOD
               R8-R9   BY ADV. SMT.M.A.VAHEEDA BABU
               R8-R9   BY ADV. SRI.BABU KARUKAPADATH
               R8-R9   BY ADV. SRI.JAGAN GEORGE

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-
01-2021, THE COURT ON 18-01-2021 DELIVERED THE FOLLOWING:
 WP(C).No.4811 OF 2012(B)

                                       3




                           W.P.(C) No.4811 of 2012
                 -----------------------------------------------

                               JUDGMENT

The first petitioner is the husband of the second petitioner.

Petitioners hold adjoining lands measuring 40.49 Ares in Cheranelloor

Village, as obtained by them in terms of two separate assignment

deeds namely sale deed Nos.2630 of 1996 and 2648 of 1996. The

lands aforesaid were classified in the revenue records as "Nilam",

indicating that they are paddy fields. The assignor of the petitioners

has earlier applied to the competent authority under the Kerala Land

Utilisation Order, 1967 for permission to make use of the large extent

of land including the lands assigned to the petitioners, for other

purposes. The said application was allowed by the competent

authority and accorded permission to the assignor of the petitioners

for making use of the land for other purposes. Ext.P2 is the order

passed in this regard by the competent authority under the Land

Utilization Order on 24.4.1996. Despite the permission aforesaid, the

assignor of the petitioners has not reclaimed the land. Even the

petitioners did not reclaim their portion of the land after the purchase

of the same. Later, the petitioners permitted the contractor who WP(C).No.4811 OF 2012(B)

undertook the work of Vallarpadom International Transshipment

Terminal, to dump the waste generated from the work site of the said

project in the lands of the petitioners. Ext.P4 is the consent letter

issued by the petitioners in this regard. The contractor aforesaid,

thereupon, preferred an application before the District Collector

seeking permission to dump the waste from the project site in the

lands of the petitioners. In terms of Ext.P10, the District Collector

granted the permission sought for by the contractor. Ext.P10 order of

the District Collector has been challenged by respondents 8 and 9

before the Government in a revision petition filed under Section 28 of

the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the

Act). Ext.P13 is the said revision petition. In Ext.P13 revision petition,

the Government has initially passed Ext.P14 interim order staying the

operation of Ext.P10 order. Later, in terms of Ext.P15, Ext.P13 revision

petition preferred by respondents 8 and 9 was allowed and Ext.P10

order was set aside. As per Ext.P15, the second respondent has also

directed to take action for having reclaimed the lands of the petitioners

which are included in the data bank prepared under the Act. Ext.P15

order is under challenge in the writ petition. The petitioners also seek a

declaration that they are entitled to convert or utilise the lands

covered by Ext.P2 order, for purposes other than paddy cultivation.

2. A counter affidavit has been filed in the matter by the WP(C).No.4811 OF 2012(B)

second respondent, contending that the lands of the petitioners are

paddy lands included in the data bank prepared under the Act; that the

adjacent lands are being cultivated with paddy; that lands of the

petitioners are suitable for paddy cultivation; that the lands of the

petitioners have not been reclaimed on the strength of Ext.P2 order

granted under the Kerala Land Utilisation Order; that the lands of the

petitioners which are covered by orders under the Kerala Land

Utilisation Order, but not converted prior to the coming into force of

the Act, would fall within the scope of the Act and such lands cannot

therefore be reclaimed or converted.

3. Heard the learned Senior Counsel for the petitioners,

the learned Government Pleader as also the learned counsel for

respondents 8 and 9.

4. Ext.P2 is the order obtained by the assignor of the

petitioners under clause 6(2) of the Kerala Land Utilisation Order.

Ext.P2 recites categorically that the assignor of the petitioners was

permitted to convert or utilise the land referred to therein for

cultivation of other food crops, or for other purposes. The contesting

respondents have no case that the lands covered by the assignment

deeds in favour of the petitioners are not lands covered by Ext.P2

order. The contesting respondents have also no case that Ext.P2 order

has not become final. In Kaipadath Property Development WP(C).No.4811 OF 2012(B)

Company (Pvt) Ltd v. State of Kerala, 2011(1) KLT 526, it was held

by this Court that orders issued under the Kerala Land Utilization Order

cannot be taken as inoperative or to have been nullified by the

provisions of the Act and that the rights accrued on the strength of the

orders passed under the Land Utilization Order are not affected by the

provisions contained in the Act. Paragraphs 28, 29 and 31 of the said

judgment read thus :

"28. The Act is not retrospective in operation, evidently. There is no provision in the Act which nullifies the orders issued under the Kerala Land Utilisation Order. In fact, even in a case of repeal the effect of such repeal will have to be understood in the light of the provisions of the General Clauses Act. The question is no longer res integra. Going by S.6 (c) of the General Clauses Act 1897, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed unless a different intention appears.

29. The Apex Court in Ambalal Sarabhai Enterprises Ltd.'s case ((2001) 8 SCC 397), relied upon the earlier decision of the Apex Court in M.S. Sivananda v. Karnataka S.R.T.C. ((1980) 1 SCC 149). In para 30 of the judgment, the principle has been delineated. For the applicability of S.6 of the General Clauses Act, there will be a right acquired or accrued and it should not be a mere 'hope or expectation.' The Apex Court therein further relied upon another decision of a Constitution Bench of the Apex Court in Bansidhar v. State of Rajasthan ((1989) 2 SCC 557) wherein, in para 30 it was held thus:

"For purposes of these clauses the 'right' must be 'accrued' and not merely an inchoate one. The distinction between what is and what is not a right preserved by S.6 of the General Clauses Act, it is said, is often one of great fineness.

What is unaffected by the repeal is a right 'acquired' or 'accrued' under the repealed statute and not 'a mere hope or WP(C).No.4811 OF 2012(B)

expectation' of acquiring a right or liberty to apply for a right."

It is stated that what is unaffected by the repeal is a right 'acquired' or 'accrued' under the repealed statute and not 'a mere hope or expectation' of acquiring a right or liberty to apply for a right. In para 33, their Lordships again relied upon para 12 of the judgment in M.S. Shivananda's case ((1980) 1 SCC 149) which is to the following effect:

"If, however, the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired. In order to see whether the rights and liabilities under the repealed Ordinance have been put to an end by the Act, the line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities under the repealed Ordinance but whether it manifests an intention to destroy them. Another line of approach may be to see as to how far the new Act is retrospective in operation."

Therefore, the true question is whether the new enactment manifests the intention to destroy the rights and liabilities under the Kerala Land Utilisation Order. Evidently, under the Act 28 of 2008 no such provision is there.

xxxxxx

31. This Court therein relied upon in para 18, the decision of the Apex Court in K.S. Paripoornan v. State of Kerala (1994 (2) KLT 763 (SC). The said para is extracted below:

18. Thus, even in the case of a provision which substitutes the former one, the same tests will have to be applied. In K.S. Paripoornan v. State of Kerala (1994 (2) KLT 763 (SC), their Lordships considered the effect of retrospectivity of the provisions of S.23(1A) of the Land Acquisition Act. In paragraphs 71 and 72, the following principles were laid down:

"71. A statute dealing with substantive rights differs from a statute which relates to procedure or evidence or is WP(C).No.4811 OF 2012(B)

declaratory in nature inasmuch as while a statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect, a statute concerned mainly with matters of procedure or evidence or which is declaratory in nature has to be construed as retrospective unless there is a clear indication that such was not the intention of the legislature. A statute is regarded as retrospective if it operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. By virtue of the presumption against retrospective applicability of laws dealing with substantive rights transactions are neither invalidated by reason of their failure to comply with formal requirements subsequently imposed, nor open to attack under powers of avoidance subsequently conferred. They are also not rendered valid by subsequent relaxations of the law, whether relating to form or to substance. Similarly, provisions in which a contrary intention does not appear neither impose new liabilities in respect of events taking place before their commencement, nor relieve persons from liabilities then existing, and the view that existing obligations were not intended to be affected has been taken in varying degrees even of provisions expressly prohibiting proceedings.

72. These principles are equally applicable to amendatory statutes. According to Crawford:

"Amendatory statutes are subject to the general principles relative to retroactive operation. Like original statutes, they will not be given retroactive construction, unless the language clearly makes such construction necessary. In other words, the amendment will usually take effect only from the date of its enactment and will have no application to prior transaction, in the absence of an expressed intent or an intent clearly implied to the contrary, indeed there is a presumption that an amendment shall operate prospectively.' "

WP(C).No.4811 OF 2012(B)

Evidently, in the light of the interpretation placed therein, it is safe to conclude that the orders issued under the Kerala Land Utilisation Order cannot be taken as inoperative or to have been nullified by the provisions of the Act. The accrued rights are not affected. Of course, whether the orders support the case of the petitioner on the factual situation as regards the portion of the property which is converted, is another question to be decided.

Following Kaipadath Property Development Company (Pvt) Ltd,

in W.P.(C) No.33372 of 2017, this Court repelled the contention that if a

property is not reclaimed based on the permission obtained under the

Kerala Land Utilisation Order on the date of commencement of the Act,

the said land cannot be converted thereafter. In the light of the

aforesaid decisions, the lands of the petitioners ought not have been

included in the data bank prepared under the Act. If the lands of the

petitioners are not liable to be included in the data bank prepared

under the Act, there cannot be any impediment at all in reclaiming the

lands after the commencement of the Act.

5. That apart, Ext.P10 is not an order passed by the

District Collector under any of the provisions of the Act. A revision

would lie under Section 28 of the Act only in respect of the

proceedings of the Collector under the Act. In other words, according

to me, the revision petition preferred by respondents 8 and 9 under

Section 28 of the Act is not maintainable.

In the result, the writ petition is allowed and Ext.P15 order is WP(C).No.4811 OF 2012(B)

quashed. It is declared that the petitioners are entitled to reclaim or

convert or make use of the lands covered by the assignment deeds in

their favour in terms of Ext.P2 order, notwithstanding the provisions of

the Act.

Sd/-

                                            P.B.SURESH KUMAR

Mn                                                JUDGE
 WP(C).No.4811 OF 2012(B)




                               APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1                 PHOTOCOPY OF THE POWER OF ATTORNEY DATED
                           15/02/2012.

EXHIBIT P2                 TRUE COPY OF THE ORDER DATED 24/04/1996
                           PASSED BY THE 4TH RESPONDENT.

EXHIBIT P3                 TRUE COPY OF THE RECEIPT DATED 05/07/1996
                           EVIDENCING THE PAYMENT OF THE CESS TO THE
                           7TH RESPONDENT.

EXHIBIT P4                 TRUE COPY OF THE CONSENT DATED 27/10/2008
                           GIVEN TO THE 8TH RESPONDENT.

EXHIBIT P5                 TRUE COPY OF THE REQUEST LETTER DATED

09/12/2008 SUBMITTED BY THE 8TH RESPONDENT TO THE 3RD RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 27/01/2009 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE REPORT NO. K 652/09 DATED 19/02/2009 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 29/04/2009 ISSUED TO THE NATIONAL HIGH WAY AUTHORITY WITH A COPY OF THE 8TH RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE SITE INSPECTION REPORT DATED 09/06/2009 OF THE DEPUTY COLLECTOR (LR).

EXHIBIT P10 TRUE COPY OF THE ORDER NO. C6-9857/08 DATED 17/06/2009 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE OS 255/2010 BEFORE THE HONOURABLE MUNSIFF COURT, ERNAKULAM.

EXHIBIT P12 TRUE COPY OF THE TEMPORARY INJUNCTION ORDER DATED 08/04/2010 IN IA 1587/2010 IN OS NO.255/2010 PASSED BY THE 2ND ADDITIONAL MUNSIFF COURT, ERNAKULAM.

EXHIBIT P13 TRUE COPY OF THE REVISION PETITION DATED 24/06/2010 FILED BY THE 9TH AND 10TH RESPONDENT BEFORE THE GOVERNMENT.

WP(C).No.4811 OF 2012(B)

EXHIBIT P14 TRUE COPY OF THE STAY ORDER DATED 24/06/2010 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P15 TRUE COPY OF THE GO(RT) NO.

1493/11/AGRICULTURE DATED 17/08/2011 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P16 TRUE COPY OF THE JUDGMENT DATED 11/02/2014 IN OS 255/2010 PASSED BY THE IIND ADDITIONAL MUNSIFF COURT, ERNAKULAM.

EXHIBIT P17 TRUE COPY OF THE PHOTOGRAPHS EVIDENCING THE REAL NATURE OF THE PROPERTY OWNED BY THE PETITIONERS.

RESPONDENT'S EXHIBITS:

EXHIBIT R2(A) PHOTOCOPY OF THE REPORT OF THE AGRICULTURAL OFFICER.

EXHIBIT R2(B) PHOTOCOPY OF THE RELEVANT PAGES OF THE DATA BANK REGISTER AVAILABLE IN THE VILLAGE OFFICER, CHERANELLUR.

EXHIBIT R2(C) PHOTOCOPY OF THE BASIC TAX REGISTER IN CONNECTION WITH THE DISPUTED LAND.

EXHIBIT R2(D) PHOTOCOPY OF THE CIRCULAR DATED 08/02/2013 ISSUED BY THE LAND REVENUE COMMISSIONER.

//TRUE COPY// PA TO JUDGE