John Mathew v. Village Officer, Mylapra, Pathanamthitta; Thahasildar, Konni, Pathanamthitta; Revenue Divisional Officer, Adoor, Pathanamthitta

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 27TH DAY OF NOVEMBER 2017/6TH AGRAHAYANA, 1939** **WP(C).No. 33372 of 2017 (V) ----------------------------** **PETITIONER: ----------** **JOHN MATHEW, S/O.K.M.J0HN,KEEPALLY HOUSE, KUDASANAD P.O.,PALAMEL, MAVELIKKARA, REP.BY ITS POWEER OF ATTORNEY HOLDER SRI.JUSTIN JACOB, S/O.K.A.JACOB, AGED 44 YEARS,RESIDING AT KANDATHIL HOUSE, KUDASANAD,PANDALAM,MANELIKKARA.** **BY ADV. SRI.DEEPU THANKAN** ## **RESPONDENTS:** **-----------** **1. THE VILLAGE OFFICER, MYLAPRA, PATHANAMTHITTA -689678. 2. THE THAHASILDAR, KONNI, PATHANAMTHITTA DISTRICT-689678. 3. REVENUE DIVISIONAL OFFICER, ADOOR, PATHANAMTHITTA DISTRICT-689678.** **BY GOVERNMENT PLEADER SRI.RAVI KRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **WP(C).No. 33372 of 2017 (V)** ## **----------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXHIBIT P1**|<br>**TRUE COPY OF THE SALE DEED NO.2837/2005 OF THE SUB REGISTRAR**| ||**OFFICE, PATHANAMTHITTA STAND IN THE NAME OF THE PETITIONER**| |**EXHIBIT P2**|<br>**TRUE COPY OF THE SALE DEED NO.935/2005 OF SUB REGISTRAR**| ||**OFFICE,PATHANAMTHITTA STAND IN THE NAME OF THE PETITIONER**| |**EXHIBIT P3**|<br>**TRUE COPY OF THE SALE DEED NO.936/2005 OF SUB REGISTRAR**| ||**OFFICE,PATHANAMTHITTA STAND IN THE NAME OF THE PETITIONER**| |**EXHIBIT P4**|<br>**TRUE COPY OF THE SALE DEED NO.937/2005 OF SUB REGISTRAR**| ||**OFFICE,PATHANAMTHITTA STAND IN THE NAME OF THE PETITIONER**| |**EXHIBIT P5**|<br>**TRUE COPY OF THE TAX RECEIPT OF THE PETITIONER FOR THE YEAR**| ||**2016-2017 AND 2017-2018 DATED 26/7/2017**| |**EXHIBIT P6**|<br>**TRUE COPY OF THE TAX RECEIPT OF THE PETITIONER FOR THE YEAR**| ||**2016-2017 AND 2017 -2018 DATED 26/7/2017**| |**EXHIBIT P7**|<br>**TRUE COPY OF THE TAX RECEIPT OF THE PETITIONER FOR THE YEAR**| ||**2017-2018 DATED 26/7/2017**| |**EXHIBIT P8**|<br>**TRUE COPY OF THE LETTER ISSUED BY THE PUBLIC INFORMATION**| ||**OFFICER OF THE RDO,ADOOR DATED 30/8/2017**| |**EXHIBIT P9**|<br>**TRUE COPY OF THE REPLY RECEIVED BY THE PETITIONER AND ALSO A**| ||**COPY OF THE THANDAPPER REGISTER MAINTAINED BY THE 1ST**| ||**RESPONDENT DT.NIL**| |**EXHIBIT P10**|<br>**TRUE COPY OF THE PROHIBITION ORDER ISSUED BY THE 1ST**| ||**RESPONDENT ON 19/7/2017**| |**EXHIBIT P11**|<br>**TRUE COPY OF THE LETTER ISSUED BY THE VILLAGE OFFIER,DATED**| ||**16/8/2017.**| **RESPONDENT(S)' EXHIBITS -----------------------** ## **NIL** **TRUE COPY** **EL** **P.S. TO JUDGE** ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **W.P.(C) No.33372 of 2017** ## **----------------------------------------------Dated 27[th] November, 2017.** ## **J U D G M E N T** Ext.P10 order issued by the first respondent under Section 12(2)(b) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the Act), preventing the petitioner from making use of the property referred to therein for purposes other than paddy cultivation, is under challenge in this writ petition. 2. The specific case of the petitioner is that the petitioner has applied for and obtained permission from the competent authority under the Kerala Land Utilization Order, 1967 for making use of the property for other purposes and therefore, Ext.P10 order is one issued without jurisdiction. 3. Heard the learned counsel for the petitioner as also the learned Government Pleader. WPC No.33372 of 2017 2 4. It is stated by the petitioner that the Revenue Divisional Officer, Adoor has accorded permission to the petitioner for making use of the property for other purposes, in terms of his orders bearing Nos.5294/2005/K3 and K.Dis.6697/2005/B3 dated 31.10.2005 and 10.5.2006 respectively. It is also stated by the petitioner that the particulars of the said orders have been endorsed in the Thandaper account of the petitioner pertaining to the property. The petitioner, however, has not produced those orders stating that the same are misplaced. The petitioner, however, has produced Ext.P9 information furnished to him by the village officials under the Right to Information Act to substantiate his case that he has obtained permission of the competent authority under the Land Utilization Order for use of the property for other purposes. 5. The learned Government Pleader submitted that even if it is admitted that the petitioner had been granted permission by the competent authority under the Land Utilisation Order for use of the property for other purposes, WPC No.33372 of 2017 3 since the property has so far not been converted, the provisions of the Act would apply to the same. 6. It is seen that this Court has held in **Kaipadath Property Development Company (Pvt) Ltd v. State of Kerala** (2011(1) KLT 526) 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 WPC No.33372 of 2017 4 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 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. x x x x x x x WPC No.33372 of 2017 5 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 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. WPC No.33372 of 2017 6 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.' ” 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.” In the light of the aforesaid judgment, the contention raised by the learned Government Pleader is only to be rejected. 7. The learned Government Pleader has also submitted that a contrary view has been taken by the Division Bench of this Court in **Adani Infrastructure & Developers Pvt. Ltd., Mumbai v. State of Kerala and others** [2015(1) KHC 469 (DB)]. Paragraph 10 of the said judgment reads thus : “10. S.3 prohibits conversion or reclamation of paddy land. S.3 indicates that on and from the date of commencement WPC No.33372 of 2017 7 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 RDO. Of course, the RDO 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. The said judgment cannot be understood as having taken a contrary view in the matter as the same was a case where the Revenue Divisional Officer has exercised power under the Land Utilization Order in respect of a property included in the Data Bank prepared under the Act. After the coming into force of the Act, the Revenue Divisional Officer has absolutely no jurisdiction to deal with a property which is included in the Data Bank. Only the aforesaid aspect has been clarified by the Division Bench in the said case. WPC No.33372 of 2017 8 In the circumstances, the writ petition is disposed of directing the first respondent to verify whether the orders viz, Nos.5294/2005/K3 and K.Dis.6697/2005/B3 dated 31.10.2005 and 10.5.2006 respectively mentioned in Ext.P9 are orders passed by the Revenue Divisional Officer under the Land Utilisation Order. If it is found that the same are orders issued under the Land Utilisation Order, the impugned stop memo shall be withdrawn. This shall be done within one week from the date of receipt of a copy of this judgment. ## **Sd/-** **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)