Dismissed

V.J.Thomas, v. State of Kerala

Kerala HC1 Oct 2020WA/670/2020

Case brief

AI extract

What is this about?

The High Court dismissed a writ appeal challenging an order by the Revenue Divisional Officer requiring a new application for land conversion under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The Court held that a prior direction to 'consider' an application did not bind the authority to apply a superseded provision, as authorities must decide matters in accordance

What the court decided

AI extract

V.J.Thomas, Vs State of Kerala — Land Acquisition | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942

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WA.No.670 OF 2020

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AGAINST THE JUDGMENT DATED 04.03.2020 IN WP(C) 1404/2020(A) OF HIGH COURT OF KERALA

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APPELLANT/PETITIONER:

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V.J.THOMAS, AGED 66 YEARS S/O.LATE K.T.JOSEPH, VALLAYIL KALAPPURACKAL, KUDAKKACHIRA, PALA - 686 635, KOTTAYAM DISTRICT.

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BY ADVS. SRI.MATHEW JOHN (K) SRI.MATHEW DEVASSI SRI.ABY J AUGUSTINE

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 THE CHAIRMAN LOCAL LEVEL MONITORING COMMITTEE, KAROOR PANCHAYATH, PALAI, KOTTAYAM DISTRICT, PIN - 686 575.

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3 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISION OFFICE, PALA, KOTTAYAM DISTRICT, PIN - 686 575.

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4 THE ADDITIONAL TAHSILDAR MEENACHIL TALUK OFFICE, PALA, KOTTAYAM DISTRICT, PIN - 686 575.

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5 THE VILLAGE OFFICER VALLICHIRA VILLAGE OFFICE, PALA, KOTTAYAM DISTRICT, PIN - 686 574.

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R1-5 BY SRI. ARAVINDAKUMAR BABU, SR. GOVERNMENT PLEADER

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A. No. 670/2020

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JUDGMENT

Shaji. P. Chaly, J.

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The captioned writ appeal is filed by the writ petitioner in W.P. (C) No. 1404 of 2020 challenging the judgement of the learned Single Judge dated 4^th March, 2020, whereby the writ petition was dismissed and Ext. P5 order dated 14.11.2019 passed by the Revenue Divisional Officer, Pala, the third respondent in the appeal, was upheld. Ext.P5 order is passed by the Revenue Divisional Officer holding that since the amended Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 ('Act, 2008' for short) has come into force on and with effect from 30.12.2017, the provisions of clause 6(2) of the Kerala Land Utilisation Order, 1967 has no binding force so as to entertain the application dated 13.04.2018 submitted by the appellant and accordingly directed him to submit an application in respect of the property under the provisions contained under Section 27A of the Act, 2008 shown as reference No. 7 in the order.

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The learned single Judge, after considering the contentions put forth by the writ petitioner and the Government, has dismissed the writ petition holding that the stand adopted by the Revenue Divisional Officer was in accordance with law and no manner of

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interference was required. It is, thus, challenging the legality and correctness of the judgement of the learned single Judge this appeal is preferred.

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Brief material facts for the disposal of the writ appeal are as follows:

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The appellant is the owner of an extent of 55.58 Ares of property lying in survey Nos. 217/10, 217/10/1, 217/11 and 217/11/1 of Vallichira village, Meenachil Taluk, Kottayam District. According to the appellant, the property has been a garden land even prior to the purchase of the same by the appellant and there are no paddy fields anywhere in the vicinity of the property and further that all the properties in the adjoining areas are rubber plantations. The sum and substance of the contentions of the appellant was that even though the property was a paddy field, it was converted as a dry land much prior to the introduction of the Act, 2008 and it was shown in the data bank prepared under the Act, 2008 as converted land. Apparently, the appellant submitted Ext.P2 application dated 21.07.2017, which is seen to be received by the Officer concerned as per receipt dated 11.08.2017 bearing No. 29/17-18 produced along with Ext. P2 application, before the Local Level Monitoring Committee constituted under the Act, 2008 to remove the property from the data bank. The appellant has also submitted Ext.P3 application dated 11.04.2018 presumably quoting

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clause 6(2) of the Kerala Land Utilisation Order, 1967 seeking permission to utilise the property for other purposes other than paddy cultivation and agricultural operations. Thereafter, he filed W.P.(C) No. 13787 of 2018 before this court seeking a direction to consider Exts. P2 and P3 applications by the Local Level Monitoring Committee, Karoor Panchayat, Pala and the Revenue Divisional Officer, Pala respectively and the same was disposed of as per Ext. P4 judgement of a learned Single Judge dated 13.04.2018. The operative portion of the said judgement reads thus:

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“On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I dispose the writ petition with the following directions:

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(i) The 2nd respondent shall consider and pass orders on Ext.P2 application preferred by the petitioner within a period of three months from the date of receipt of a copy of this judgment, if need be, after hearing the petitioner.

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(ii) In the event of the 2nd respondent passing an order excluding the land belonging to the petitioner from the Land Data Bank, then the 3 rd respondent shall consider Ext.P3 application preferred by the petitioner for conversion of user of the said land, and pass orders thereon within a period of one month from the date of production of the order of the 2 nd respondent, before him.

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(iii) The petitioner shall, in the event of receipt of the order from the 2nd respondent, and the order from the 3rd respondent permitting conversion under the KLU Order, produce copies of the same before the Land Tax Authorities, for causing a fresh assessment and consequential change in the classification of the land in the Basic Tax Register.”

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consequent to the directions, it is apparent from Ext. P5 order of the Revenue Divisional Officer that the Local Level Monitoring Committee as per the Act, 2008 has removed the property from the data bank holding that the property in question was converted prior to the introduction of the Act, 2008. it was thereupon that the Revenue Divisional Officer has proceeded to comply with the directions issued by this Court in Ext. P4 judgement. It is an admitted fact that Ext. P3 application seeking utilisation of the property for other purposes was dated 11.04.2018, which is after the introduction of Section 27A into the Act, 2008 on and with effect from 30.12.2017 by issuing Ordinance No. 41 of 2017 which was succeeded by Ordinance Nos. 13 of 2018 dated 12.02.2018 and 30 of 2018 dated 07.04.2018. The said Ordinance of 30 of 2018 was later replaced by the Kerala conservation of paddy land and wetland (Amendment) Act, 2018 ('Amendment Act, 2018' for brevity) on 06.07.2018, which is deemed to have effect from 30.12.2017, the date on which Section 27A and other provisions were introduced to the Act, 2008 by virtue of the Ordinances specified above. It was under the said background that Ext. P5 order was passed by the Revenue Divisional Officer, Pala that since Ext. P3 application of the appellant is filed after the coming into force of Section 27A of Act, 2008, the appellant would have to seek necessary remedy in accordance with the provisions of

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the Act, 2008. No doubt, the very same Revenue Divisional Officer is vested with powers under Section 27A of Act, 2008 to consider the application. However, in accordance with the provisions of the Rules, statutory format is prescribed for submitting applications seeking conversion. It was, thus, challenging the correctness of the order passed by the Revenue Divisional Officer that the writ petition was filed. The basic contention advanced in the writ petition was that Ext. P4 judgement was rendered by this Court in the earlier round of litigation, directing the Revenue Divisional Officer to consider writ petitioner's application in accordance with the provisions of the Order, 1967. According to the appellant, such a direction was issued since the application was submitted under clause 6(2) of the Order, 1967 and therefore, it was obligatory on the part of the Revenue Divisional Officer to adhere to the clear directions of the learned single Judge in Ext. P4 judgement. Therefore, according to the appellant, the action of the Revenue Divisional Officer by overlooking the directions was liable to be quashed, since the same was passed in flagrant violation of the imperative directions contained in Ext. P4 judgement. It was also contended that it is trite that the directions in an inter party judgement have to be strictly followed, despite any subsequent change of law or any other event. It was contended so, basically putting forth the ground that the Amendment Act, 2018 was

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introduced on 06.07.2018 by giving retrospective operation from 30.12.2017; whereas, fact remains that Section 27A and other provisions were introduced to the Act, 2008 by virtue of the Ordinance dated 30.12.2017 specified above. Anyhow, the learned single Judge has dismissed the writ petition stating that the introduction of Section 27A to Act, 2008 was binding on the appellant, since the application was submitted by the appellant on 11.04.2018.

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The paramount contention advanced by the appellant in the appeal memorandum is that Ext. P4 inter party judgement by and between the parties has become final and therefore, irrespective of Section 27A of Act, 2008, which is operative from 30.12.2017, the Revenue Divisional Officer was duty bound to comply with the directions issued by the learned single Judge to consider Ext.P3 application under clause 6(2) of the Order, 1967. it is also contended that the said issue raised by the appellant was not taken into account by the learned single Judge and therefore, the judgement of the learned single Judge is vitiated for the above reason, justifying its reversal. It is further contended that a judgement rendered by yet another learned single Judge in W.P.(C) No. 15668 of 2019 dated 20.12.2019 on the same point of law raised by the writ petitioner was not considered by the learned single Judge, correctly. It is also pointed out that the legal position

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with respect to an inter party judgement was considered in various judgements of Apex Court as well as this Court and therefore, the learned single Judge ought to have quashed Ext. P5 impugned order and allowed the writ petition. The learned Government Pleader appeared in the appeal has filed a statement dated 11.08.2020 on written instructions, whereby it is submitted that in Ext. P4 judgement, the learned single Judge has only directed the Revenue Divisional Officer to consider the application for utilisation of the property for other purposes without adjudicating on the issue as to whether the application was maintainable under clause 6(2) of the Order, 1967 consequent to the introduction of Section 27A to Act, 2008 on and with effect from 30.12.2017. it is also pointed out that consequent to the introduction of Section 27A into Act, 2008, clause 6(2) of Order, 1967 has lost its relevance and therefore, Ext. P5 order passed by the Revenue Divisional Officer was in accordance with law and the learned single Judge was right in holding so.

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We have heard learned counsel for the appellant, Sri. Mathew John and the learned Senior Government Pleader Sri. Aravindakumar Babu appeared for the respondents and perused the pleadings and materials on record. Learned counsel for the appellant has advanced arguments as is discussed above, since the subject issue revolves around clause 6(2) of the Kerala Land Utilisation Order, 1967 and Section 27A of the Act, 2008 are

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relevant to be extracted and they read thus:

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"(2) No holder of any land who cultivates any land with any food crop for a continuous period of three years at any time after the commencement of this order shall, after the said period of three years, convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector."

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[27A. Change of nature of unnotified land. - (1) If any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed.

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(2) Notwithstanding anything contained in any judgement, decree or order of any Court or Tribunal or any other authority, the Revenue Divisional Officer may, after considering the reports of the Village Officer concerned, pass such orders as deemed fit and proper, on such applications, ensuring that there is no disruption to the free flow of water to the neighbouring paddy lands, if any, through such water conservancy measures as is deemed necessary:

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Provided that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per cent of such land shall be set apart for water conservancy measures.

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(3) If the application is allowed, the applicant shall be liable to pay a fee at such rate as may be prescribed.

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Provided that no such fee shall be collected if the applicant proves that the land where the application is allowed is, filled up before the 4th day of July, 1967, the date of commencement of the Kerala Land Utilisation Order, 1967, after completing such procedure, as may be prescribed.

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(4) If the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation in the un-notified land shall not adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation:

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Provided that in specifying such water conservancy measures, the Revenue Divisional Officer may, if he deems fit, refer to satellite maps of the area maintained by Government agencies.

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(5) No permission under this section shall be necessary where the purpose for which the un-notified land is converted or attempted to be converted or utilized or attempted to be utilized is for paddy cultivation.

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(6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994), no permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square metres in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square metres situated in a maximum extent of 2.02 Ares of land:

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Provided that the construction of a housing complex or complexes or flats or multi-storied residential complexes shall not come within the meaning of residential building specified in this subSection:

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Provided further that this exemption shall be granted only once. (7) The exemption under sub-section (6) shall be applicable only to owners of un-notified lands under the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018:

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Provided that if the area of the residential building or commercial building exempted under sub-section (6) is subsequently increased by

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new extension, the exemption under sub-section (6) shall cease to have effect and the owner of the land as on the date of detection of the new extension shall be liable to pay fee as per sub-section (3)

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(8) Where conversion of an un-notified land is required for any public purpose, the Revenue Divisional Officer shall submit a report to Government outlining the measures to be adopted to ensure that the reclamation shall not disrupt the free flow of water to the neighbouring paddy lands, if any, and shall suggest such water conservancy measures as is necessary to ensure this.

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(9) The Government may, on receipt of a report under sub-section (8), issue permission to reclaim un-notified land for public purpose:

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Provided that where permission is granted, Government may make necessary modifications to the recommendations of the Revenue Divisional Officer as deemed fit:

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Provided further that, if the area of such parcel of land where the application is allowed is more than 20.2 ares, ten per cent of such land shall be set apart for water conservancy measures.

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(10) The order issued under sub-section (2) and (9) shall clearly indicate the survey number of the lands and the extent of the land in each survey number for which sanction has been accorded, the extent of the land in which water conservancy measures are to be adopted by the applicant and a sketch of such land indicating the aforementioned details shall be appended to the order.

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(11) The Revenue Divisional Officer may, either suo moto or on the application of any aggrieved party, cancel any order issued under subsection (2) if the conditions specified in the order issued therein are not complied by the applicant, either fully or partially.

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(12) No order of cancellation under sub-section (11) shall be made by the Revenue Divisional Officer unless the applicant thereof has been

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given an opportunity of being heard in the matter.

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(13) Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act.”

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It is a fact that even though Act, 2008 was introduced on

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and with effect from 12.08.2008 with the intention of conserving the paddy land and wetland and to restrict the conversion or reclamation thereof, in order to promote growth in the agricultural sector and to sustain the ecological system, in the State of Kerala, it had only prospective operation on and with effect from the date of introduction of the Act, 2008. Which thus means, any land converted prior to the introduction of the Act, 2008 or any land which was not included in the data bank constituted as per the Act, 2008 was governed by the provisions of the Kerala Land Utilisation Order, 1967. The Act, 2008 has undergone amendment as per, Act 14 of 2011 on and with effect from 06.07.2011, Act 12 of 2015, Act 19 of 2016 and finally by Act 29 of 2018. The Act 29 of 2018 was introduced by the Government for the smooth implementation of the major Government projects and also in public interest and thus, intended to amend Sections 2, 5, 8, 9, 12, 13, 14, 16, 19, 20, 23 and 25 and insert Sections 27A to 27D in the Act, 2008. As the legislative assembly of the State of Kerala was not in session, and the proposals had to be given effect to immediately, the Kerala

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Conservation of Paddy Land and Wetland (Amendment) Ordinance, 2017 was promulgated by the Governor of Kerala on 30^th December, 2017 as Ordinance No. 41 of 2017 in the Kerala Gazette Extraordinary No. 2903 dated 30.12.2017. Evidently, a bill to replace the Ordinance could not be introduced in its session commenced on the 22^nd of January, 2018 and ended on the 7^th day of February, 2018. Therefore, in order to keep alive the provisions of Ordinance, the Governor of Kerala has promulgated the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance, 2018 on the 12^th day of February, 2018, which was published in the Kerala Gazette Extraordinary No. 348 dated 12^th February, 2018. Though a bill to replace the said Ordinance by an act of the State Legislature was published as Bill No. 122 of the 14^th Kerala Legislative Assembly, the same could not be introduced in the Legislative Assembly during its session which commenced on 26^th February, 2018 and ended on the 4^th day of April, 2018. Therefore, again the Ordinance No. 30 of 2018 was published in the Kerala Gazette Extraordinary No. 919 dated 7^th April, 2018. It was the said ordinance that was replaced by the Kerala Conservation of Paddy land and Wetland Amendment Act, 2018 on 6.7.2018 on and with effect from 30.12.2017, i.e., the date of the first Ordinance No. 41 of 2017. Therefore, the contention of the appellant that the Amendment Act was introduced in 2018 and retrospective effect

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was given from 30.12.2017, can never be sustained under law, because the deeming effect to Section 27A and other amended provisions under the Amendment Act, 2018 was given, to have continued force from the date of the Ordinance dated 30.12.2017.

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Taking into account the above conspectus of the matter, it cannot be said that the application dated 11.04.2018 submitted by the appellant quoting clause 6(2) of the Kerala Land Utilisation Order, 1967 had to be considered in accordance with the provisions of the Kerala Land Utilisation Order, 1967 in respect of an unnotified land deeming that the amended provisions of the Act, 2018 and Section 27A were given retrospective effect. Therefore, we do not find any basis or foundation on such a contention advanced by the learned counsel for the appellant. But, it is contended that by virtue of Ext. P4 inter partes judgement of the learned single Judge in W.P. (C) No.13787 of 2018 dated 13.04.2018, the Revenue Divisional Officer had no other option than to consider the application under clause 6(2) of the Kerala Land Utilisation Order, 1967, being a binding direction issued under Article 226 of the Constitution of India, unable to be overlooked by a statutory authority and therefore, even assuming that Section 27A of Act, 2008 was in place on 30.12.2017, the Revenue Divisional Officer could not have directed the appellant to submit an application under Section 27A of Act, 2008.

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In that regard, learned counsel for the appellant has invited our attention to the judgement of a Division Bench of this

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Court in Union of India v. CAT, Ernakulam Bench [2002 KHC 175]. There the question considered was in respect of the binding nature of law declared by the Apex Court under Article 141 of the Constitution of India and it is held that Article 141 of the Constitution of India states that the law declared by the Supreme Court shall be binding on all courts within the territory of India and further that the judgements inter partes which have attained finality cannot be nullified and set at naught by subsequent decision of the Supreme court even though the issue involved was the same.

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Learned counsel has also invited our attention to a judgement of a Division Bench of this Court in Peirce Leslie India Ltd., v. Secretary CITU [2006 KHC 269], wherein the question considered was under Rule 78(3) of the Industrial Disputes Rules, 1957 (Kerala) with regard to the substantive right of a retrenched workmen for re-employment and it is held that the rule making authority is not empowered to take away a substantive right by limiting the liability of the employer to one year, which is beyond the scope of rule making power and hence, ultra vires the parent Act, and that since the rights of the employees have been finally adjudicated by a learned single Judge in O.P Nos. 10251 and 10745 of 1985 upholding the claim of the management under Rule 78(3) of

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the Rules, 1957 though rendered on a wrong interpretation of law, being an inter partes judgment, it was binding on both parties.

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Learned counsel has brought our attention to yet another judgement of a Division Bench of this Court in Vijayan N and others v. State of Kerala and others [2005 KHC 943], wherein the question considered was the temporary appointments made in Panchayat schools after 06.10.1995 vis-a-vis the judgement of the Supreme Court in Civil Appeal No. 6753 of 2003 and connected cases dated 03.08.2004 and it was held that the appellants in the Writ Appeal were not parties to the civil appeal and therefore, Ext. P1 judgement inter partes has become final as it was rendered prior to the judgement in the civil appeal referred to above and the judgement of the Apex Court declaring the law can only be considered prospective in terms of the decision of the Apex Court in Baburam v. C.C. Jacob and others [AIR 1999 SC 1845] etc. Relying upon the proposition of law laid down in the aforesaid judgements, it is submitted that the impugned order passed by the Revenue Divisional Officer cannot be sustained under law, and which legal position was overlooked by the learned single Judge.

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After analysing the situations, we are of the considered opinion that in Ext. P4 judgement, it was a mere direction to consider the application submitted by the appellant without adjudicating any issues raised in the writ petition on the date when

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the writ petition came up for admission itself. The learned single Judge has never directed that it was an application liable to be considered under the provisions of clause 6(2) of the Order, 1967. The said question was considered by the Apex Court in A.P.SRTC and others v. G. Srinivas Reddy and others [(2006) 3 SCC 674], wherein it was held that a direction to an authority to “consider” does not amount to an order to the authority to grant the relief sought for, rather it is a direction to the authority to “consider”, which only requires the authority to apply its mind to the facts and circumstance of the case and then to take a decision in accordance with law, which would include the power to refuse the reliefs sought. It was further held that to prevent the abuse of such directions to an authority to “consider”, the order of the court should clearly indicate whether the court is recording any finding as to the entitlement of the petitioner to the relief or whether the petition is being disposed of without examining the claim on merits.

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As pointed out by the learned Senior Government Pleader, this question was considered by a Division Bench of this court in Raveendran v. State of Kerala [2007 (3) KLT 558] in the realm of the provisions of the Kerala Co-operative Societies Act, 1969 in the matter of dispute arising in connection with employment of officers and servants of different classes of societies

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including their promotions by virtue of section 18 of Act, 1969 and held that the judgement rendered by this court would not confer any jurisdiction or authority on the joint registrar when legislature has conferred jurisdiction on the Arbitration Court and consequently held that when this Court directs consideration of a matter by the Joint Registrar, the Joint Registrar can decide that matter only in accordance with law. Therefore, taking into account the directions contained in Ext. P4 judgment, we have no hesitation to hold that it was a direction to “consider”, simpliciter and therefore, the statutory authority was expected to consider the application submitted by the appellant in accordance with law and nothing more than that.

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That apart, a question that comes to our mind is as to whether a direction can be issued by this Court to take a decision by a statutory authority overlooking the provisions of a statute. In our view, even if it is trite and settled by now that a High Court exercising jurisdiction under Article 226 of the Constitution of India has unlimited/infinite power to issue directions to the authorities, that power cannot be extended to direct an authority to take a decision overlooking or ignoring the provisions of law. If any such directions are issued, it is a direction requiring the authority to act unruly, which will be an action quite contrary to the rule of law prevailing in the country, which is a fundamental and foundational facet of democracy and the republican form of Government. No

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doubt, it is unequivocal that the power to legislate is a power exercised by the parliament and the State Legislatures and when any legislations are made to do a particular act in a particular manner, this Court is not expected to issue directions to the authority under those statutes to take a decision in a manner unknown to the statute. This question was considered by the apex court in Union of India and another v. Kirlosker Pneumatic Co.

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Ltd. [(1996) 4 SCC 453] and it is held as follows in paragraph 10:

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“ 10. According to these sub-sections, a claim for refund or an order of refund can be made only in accordance with the provisions of Section 27 which inter alia includes the period of limitation mentioned therein. Mr Hidayatullah submitted that the period of limitation prescribed by Section 27 does not apply either to a suit filed by the importer or to a writ petition filed by him and that in such cases the period of limitation would be three years. The learned counsel refers to certain decisions of this Court to that effect. We shall assume for the purposes of this appeal that it is so, notwithstanding the fact that the said question is now pending before a larger Constitution Bench of nine Judges along with the issue relating to unjust enrichment. Yet the question is whether it is permissible for the High Court to direct the authorities under the Act to act contrary to the aforesaid statutory provision. We do not think it is, even while acting under Article 226 of the Constitution. The power conferred by Articles 226/227 is

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designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who are the creatures of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. Maybe the High Court or a civil court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a civil court. No such delegation or conferment can ever be conceived. We are, therefore, of the opinion that the direction contained in clause (3) of the impugned order is unsustainable in law. When we expressed this view during the hearing Mr Hidayatullah requested that in such a case the matter be remitted to the High Court and the High Court be left free to dispose of the writ petition according to law.

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Therefore, the said precedent are clearly binding on this Court to arrive at the conclusion that a mere direction issued for consideration of an application will not stand in the way of the statutory authority considering the application taking into account the appropriate provisions of law. Further, under no circumstances, it can be hard to say that if such a method is adopted by the statutory authority, such a statutory authority had violated the

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directions issued by this Court under Article 226 of the Constitution of India.

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The question was again considered in Mafatlal Industries Ltd. and others v. Union of India and others [1997 (5) SCC 536], wherein it was held that the court, in a writ petition, has to take note of the provisions of the Act and must exercise its discretion consistent with those provisions. Proposition Nos. (i) and (x) of paragraph 108 of the said judgement is relevant to the context which read thus:

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“( i ) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff — whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter — by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 — and of this Court under Article 32 — cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their

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jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it.

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The said enactments including Section 11-B of the Central Excises and Salt Act and Section 27 of the Customs Act do constitute “law” within the meaning of Article 265 of the Constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions must be held to be collected, retained or not refunded, as the case may be, under the authority of law. Both the enactments are selfcontained enactments providing for levy, assessment, recovery and refund of duties imposed thereunder. Section 11-B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition ( ii ) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal — which is not a departmental organ — but to this Court, which is a civil court.

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( x ) By virtue of sub-section (3) to Section 11-B of the Central Excises

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and Salt Act, as amended by the aforesaid Amendment Act, and by virtue of the provisions contained in sub-section (3) of Section 27 of the Customs Act, 1962, as amended by the said Amendment Act, all claims for refund (excepting those which arise as a result of declaration of unconstitutionality of a provision whereunder the levy was created) have to be preferred and adjudicated only under the provisions of the respective enactments. No suit for refund of duty is maintainable in that behalf. So far as the jurisdiction of the High Courts under Article 226 of the Constitution — or of this Court under Article 32 — is concerned, it remains unaffected by the provisions of the Act. Even so, the Court would, while exercising the jurisdiction under the said articles, have due regard to the legislative intent manifested by the provisions of the Act. The writ petition would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it. The power under Article 226 is conceived to serve the ends of law and not to transgress them.

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Again, in U nion of India and others v. Concord

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Fortune Minerals India Pvt. Ltd. [(2018 (12 SCC 279] following

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the earlier judgements on the point, it is held that ordinarily writ jurisdiction cannot be invoked for directing the authorities to act contrary to law.

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Taking into account all these aspects, we are of the considered opinion that by the judgment inter partes by and between the appellant and the respondents, the authority was only directed to consider the application in accordance with law. The learned counsel for the appellant invited our attention to an unreported judgement of this Court in W.P.(C) No. 15668 of 2019 rendered by a learned single Judge in which Advocate Sri. Mathew john who is the counsel for the appellant herein has appeared. On going through the said judgement, we find that a judgement was secured by the writ petitioner namely one Ushakumari against the Convenor, Local Level Monitoring Committee, Thodupuzha Municipality, Idukki District and the Revenue Divisional Officer, Idukki in W.P.(C) No. 11577 of 2017 dated 5.12.2017. Apparently, an application was filed before the Local Level Monitoring Committee to remove the property from the data bank prepared under Act, 2008 and the petitioner therein approached this Court and sought for a direction for consideration of the application by the Local Level Monitoring Committee. Evidently, on the basis of the reliefs sought for by the petitioner therein, liberty was granted to the petitioner to utilise any certificate secured from the Local Level Monitoring Committee excluding the property from the data bank for approaching the additional 5^th respondent, i.e., the Revenue Divisional Officer, Idukki, the authority under the Kerala

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Land Utilization Order, 1967 for getting permission to utilise the land for other purposes . In fact, the petitioner therein did not have a case at all that any application was filed before the Revenue Divisional Officer seeking utilisation of the property for other purposes under the Kerala Land Utilization Order, 1967. Apparently, the judgement is dated 5.12.2017 and therefore, it is quite obvious and clear that the judgement was rendered prior to the introduction of the Section 27A of the Act, 2008. Since the facts and circumstances was not clear, we directed the registry to put up the Judges papers in the said writ petition before us and we find that the application for utilisation of the property for other purposes was submitted only on 27.01.2018 and it is contended that the petitioner therein had a vested right to consider her application in accordance with law as on the date of submission of the application, on the premise that Section 27A of Act, 2008 was brought into force by the Amended Act, 2018 by giving retrospective effect from 30.12.2017. Therefore, the contention therein was that the application was submitted prior to the introduction of the Amendment Act, 2018, which has come into force on publication in the Gazette dated 06.07.2018 with effect from 30.12.2017. According to us, such a contention was not sustainable under law, since we have already found that Section 27A was introduced into the Act, 2008 by virtue of an Ordinance

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dated 30.12.2017, which was succeeded by three other Ordinances and later by the Amendment Act, 2018. Anyhow, from the orders passed in the said writ petition, we find that even though clarification was sought by the Government to the effect that the direction was issued to consider the application in accordance with Section 27A of Act, 2008, it was dismissed holding that judgement was rendered in the said writ petition prior to the introduction of the Section 27A on and with effect from 30.12.2017. For more reasons than one, we are not inclined to follow the judgement in W.P.(C) No. 15668 of 2019 as a binding precedent on this Court, being one rendered by a learned Single Judge and that the facts and circumstances are entirely different from the facts and circumstances of this case in the appeal on hand. Anyhow, since the subject matter of the said writ petition is not under consideration before us, we refrain from expressing any opinion on the merits of the findings contained in the said judgement or any interim orders passed therein. We further add that there is no dispute for the appellant that consequent to the introduction of Section 27A to Act, 2008, clause 6(2) of the Kerala Land Utilization Order, 1967 has become redundant and lost its relevance, which is quite discernible from the respective provisions quoted above, which is also clear from sub-Section 13 of Section 27A that any application received for the change of nature of the unnotified land from the

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date of commencement of the Kerala Conservation of Paddy land and Wet land (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act.

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Taking into account the discussions made above on facts and settled legal position, we have no hesitation to hold that the appellant has not made out any case to interfere with the judgement of the learned single Judge upholding the order passed by the Revenue Divisional Officer, Pala, though for our own reasons.

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Resultantly, writ appeal fails and accordingly it is dismissed.

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Sd/-

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S. MANIKUMAR, CHIEF JUSTICE.

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sd/-

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SHAJI P. CHALY,

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JUDGE.