Kerala High Court
Paul J.Manjooran vs Sri. Suhas on 8 October, 2015
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939
Con.Case(C).No. 774 of 2016 (S)
--------------------------------
WP(C). 31762/2014 DATED 08-10-2015
PETITIONER(S):
-------------
1. PAUL J.MANJOORAN,
AGED 61 YEARS, S/O JOSEPH P. MANJOORAN,
MANJOORAN HOUSE, 48/425K, RAGHAVA PILLA ROAD,
ELAMAKKARA, COCHIN-26.
2. JOMY THOMAS MANJOORAN,
AGED 50 YEARS, S/O JOSEPH P. MANJOORAN,
MANJOORAN HOUSE, T.A.BEERAN KUNJU ROAD,
COCHIN-18.
BY ADVS.SRI.K.JAJU BABU (SR.)
SMT.M.U.VIJAYALAKSHMI
RESPONDENT(S)/IST RESPONDENT:
-----------------------------
SRI. SUHAS, IAS
AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONERS
REVENUE DIVISIONAL OFFICER,
FORT KOCHI, COCHIN-682001.
BY SENIOR GOVERNMENT PLEADER SRI.HANIL KUMAR M.H.
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY
HEARD ON 04-04-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
SKG
Con.Case(C).No. 774 of 2016 (S)
-------------------------------
APPENDIX
PETITIONER(S)' ANNEXURES
------------------------
A COPY OF THE JUDGMENT DATED 8.10.2015 IN WPC.NO.31762/2014
OF THIS HON'BLE COURT
B COPY OF THE PETITION NO.9948/14/K2 DATED 20.11.2014
SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT
UNDER THE CLAUSE 56 OF THE KERALA LAND UTILISATION ORDER
C COPY OF THE ORDER NO.K2-9948/14/K.DIS DATED 11.01.2016
ISSUED BY THE RESPONDENT
D TRUE COPY OF THE ORDER VIDE NO.K2-3502/16 OF THE SUB
COLLECTOR, FORT KOCHI
RESPONDENT(S)' ANNEXURES
------------------------ NIL
/TRUE COPY/
P.S. TO JUDGE
SKG
A.MUHAMED MUSTAQUE, J.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Cont.Court Case No.774 of 2016
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Dated this the 4th day of April, 2017
JUDGMENT
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 Cont.Court Case No.774 of 2016 2 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 Cl.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. Cont.Court Case No.774 of 2016 3 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 Cl.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 S.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 Cont.Court Case No.774 of 2016 4 referable under the Constitution, clearly indicates that these powers are to be exercised as enabling provisions to secure objectives of S.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.
sd/ A.MUHAMED MUSTAQUE JUDGE jm/