Allowed

V.K.Abdul Hameed v. State of Kerala

Kerala HC18 Jan 2021WP(C)/4811/2012

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing a government order that barred petitioners from reclaiming land. The Court held that rights under the Kerala Land Utilisation Order were not nullified by the subsequent Kerala Conservation of Paddy Land and Wetland Act. The Court declared the petitioners entitled to use the land as per their earlier permission.

What did the court decide?

The writ petition was allowed, the impugned order (Ext.P15) was quashed, and it was declared that petitioners are entitled to reclaim or convert the lands in terms of Ext.P2 order.

V.K.Abdul Hameed Vs State of Kerala — Land Acquisition | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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

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

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PETITIONERS:

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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

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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

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

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RESPONDENTS:

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

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

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

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4 REVENUE DIVISIONAL OFFICER FORT KOCHI, ERNAKULAM, PIN-682001

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

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

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

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

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

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

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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

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1101-2021, THE COURT ON 18-01-2021 DELIVERED THE FOLLOWING:

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

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

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J U D G M E N T

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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

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

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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.

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A counter affidavit has been filed in the matter by the

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

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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.

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Heard the learned Senior Counsel for the petitioners,

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the learned Government Pleader as also the learned counsel for respondents 8 and 9.

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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

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

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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 :

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“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.

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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:

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“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

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

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expectation’ of acquiring a right or liberty to apply for a right.”

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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:

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“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.”

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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.

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x x x x x x

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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:

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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:

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“71. A statute dealing with substantive rights differs from a statute which relates to procedure or evidence or is

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

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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.

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

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“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.’ ”

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

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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.

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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.

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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.

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In the result, the writ petition is allowed and Ext.P15 order is

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

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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

JUDGE

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

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	PHOTOCOPY OF THE 15/02/2012.	POWER OF ATTORNEY DATED
EXHIBIT P2	TRUE COPY OF THE PASSED BY THE 4TH	ORDER DATED 24/04/1996 RESPONDENT.
EXHIBIT P3	TRUE COPY OF THE EVIDENCING THE PA 7TH RESPONDENT.	RECEIPT DATED 05/07/1996 YMENT OF THE CESS TO THE
EXHIBIT P4	TRUE COPY OF THE GIVEN TO THE 8TH	CONSENT DATED 27/10/2008 RESPONDENT.
EXHIBIT P5	TRUE COPY OF THE 09/12/2008 SUBMIT TO THE 3RD RESPON	REQUEST LETTER DATED TED BY THE 8TH RESPONDENT DENT.
EXHIBIT P6	TRUE COPY OF THE 27/01/2009 ISSUED THE 4TH RESPONDEN	COMMUNICATION DATED BY THE 3RD RESPONDENT TO T.
EXHIBIT P7	TRUE COPY OF THE 19/02/2009 ISSUED	REPORT NO. K 652/09 DATED BY THE 4TH RESPONDENT.
EXHIBIT P8	TRUE COPY OF THE 29/04/2009 ISSUED AUTHORITY WITH A RESPONDENT.	COMMUNICATION DATED TO THE NATIONAL HIGH WAY COPY OF THE 8TH
EXHIBIT P9	TRUE COPY OF THE DATED 09/06/2009 (LR).	SITE INSPECTION REPORT OF THE DEPUTY COLLECTOR
EXHIBIT P10	TRUE COPY OF THE 17/06/2009 ISSUED	ORDER NO. C6-9857/08 DATED BY THE 3RD RESPONDENT.
EXHIBIT P11	TRUE COPY OF THE HONOURABLE MUNSIF	OS 255/2010 BEFORE THE F COURT, ERNAKULAM.
EXHIBIT P12	TRUE COPY OF THE DATED 08/04/2010 NO.255/2010 PASSE MUNSIFF COURT, ER	TEMPORARY INJUNCTION ORDER IN IA 1587/2010 IN OS D BY THE 2ND ADDITIONAL NAKULAM.
EXHIBIT P13	TRUE COPY OF THE 24/06/2010 FILED RESPONDENT BEFORE	REVISION PETITION DATED BY THE 9TH AND 10TH THE GOVERNMENT.

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

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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.

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RESPONDENT'S EXHIBITS:

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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.

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//TRUE COPY// PA TO JUDGE

V.K.Abdul Hameed v. State of Kerala

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V.K.Abdul Hameed v. State of Kerala

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