T.R Ramachandran Nair, J.:— The writ petition concerns an order passed by the District Collector, viz. Ext. P6. whereby the petitioner was directed to remove the entire earth or any other material used for converting the wet land and to restore the land to its original position and to make it fit for paddy cultivation. Important questions have been raised regarding the interpretation of Kerala Conversation of Paddy Land and Wet Land Act and Rules, 2008.
2. The brief facts for the disposal of the writpetition are the following: The petitioner is a private limited company represented by its Managing Director through his power of attorney holder. The case of the petitioner is that the petitioner company purchased as per Ext. P1 sale deed No. 2938/2007 of SRO, Thrissur, an extent of 22 acres and 77.700 cents of land in Sy Nos. 309.p, 311/1 and 312/1 in Koorkancherry Village and certain properties in Aranattukara Village. The predecessor-in-interest of the petitioner had obtained permission under the Kerala Land Utilisation Order, 1967 for conversion of the land into paramba as per Exts. P2, P3 as well as Exts. P9 and P10 orders. It is pointed out that even in the sale deed it is recited that the property covered by it is partially reclaimed on the basis of the sanction orders. Nearby people were using it for dumping waste materials for the last 15-20 years. Ext. P4 is a notice issued by the District Collector under the Act alleging illegal conversion of paddy land comprised in Sy. Nos. 309.p, 311/1, 312/1 and 313/1 of Koorkancherry Village and Ext. P5 is the objection filed by the petitioner. Finally, by rejecting the contentions, Ext. P6 order has been passed.
3. The District Collector, while overruling the contentions of the petitioner, stated that the illegal action of the petitioner to convert the property was complained of by one Shri K. Baby and Shri V.S Sunilkumar M.L.A The reports of the Agricultural Officer the Revenue Divisional Officer and Tahsildar, have also been relied upon in the order. It is the finding of the District Collector that there was no conversion from 1994 till 2007, the date of purchase of the property as evident from the statement of the predecessor in interest. The attempt made by the petitioner in the year 2008 led to the issuance of a show cause notice and a stop memo and again after the coming into force of the Act, 2008 an attempt was made to covert the land which led to Ext. P6 order. The findings of the District Collector in Ext. P6 in a nutshell, are that the land involved is “Kole land”, a wet land used for paddy cultivation. These lands are declared as Ramsar sites which need conservation and there is total prohibition on reclamation of such wet land, under the Act All orders issued under the Kerala Land Utilisation Order have become inoperative after the coming into force of the Kerala Conversion of Paddy and Wet Land Act, 2008.
4. The unauthorised conversion is after the coming into force of the Act and therefore the action is purely illegal and the property is liable to be restored to its original position, and to make it fit for paddy cultivation.
5. Heard learned Senior Counsel for the petitioner Shri M.K Damodaran, for the petitioner and Shri Ranjith Thampan, learned Addl. Advocate General appearing for the respondents.
6. Learned Senior Counsel appearing for the petitioner Shri Damodaran mainly contended that the provisions of the Act have not been implemented as the Local Level Monitoring Committee is yet to be formed and hence the identification and earmarking of properties as ‘paddy land’ and ‘wet land’ is yet to take place. Referring to the various provisions of the Act, it is further pointed out by the learned Senior Counsel that a notification in terms of Section 5(4) of the Act and Rules is essential for various authorities to initiate any proceedings under the Act and hence in the absence of such a notification the District Collector was acting in the matter illegally and without jurisdiction. With regard to the alleged finding by the District Collector that the orders under the Kerala Land Utilisation Order have become inoperative, it is pointed out that the Kerala Land Utilisation Order is in force even now and there is no repeal of the same and therefore the orders issued under the said Order are in force and have not been invalidated. The land was partially converted as evident from the document Ext. P1 itself and it is not a case where any attempt was made after the coming into force of the Act. The remaining part is not fit for cultivation, which was stopped some 20 years back. Learned Senior Counsel for the petitioner referred to various decisions of the Apex Court and this Court to contend for the position that as the Act is not retrospective, the vested right under the Kerala Land Utilisation Order cannot be affected by the provisions contained in the new Act. It is further pointed out that there is no paddy cultivation in and around the locality and the very premise under which the provisions have been sought to be implemented, cannot be supported. It is finally contended that it is a high handed action at the instance of the Government and the local politicians and therefore the petitioner has no other remedy than to approach this Court.
7. These contentions have been opposed by the learned Additional Advocate General appearing for the State. It was mainly argued that the writ petition itself is not maintainable as several disputed questions of facts have arisen for consideration which cannot be resolved by this Court under Article 226 of the Constitution of India. There is an effective remedy of revision under the Act to approach before the Government. The Public Trust Doctrine will apply here because conservation of paddy land and wet land is one of the avowed objects of the Act itself and the kole lands are included in the Ramsar sites declaration. It is vehemently contended that the orders issued under the Kerala Land Utilisation Order cannot be taken of advantage by the petitioner. It is pointed out that the total extent purchased by the petitioner is more than 22 acres which is in violation of the Kerala Land Reforms Act and proceedings have been initiated for violation of the provisions of the Act. It is further pointed out that only part of the area have been converted, out of which the properties in Sy. No. 313 do not come within items of the properties purchased by the sale deed and while referring to other documents produced, it is pointed out that even part of the puramboke land situated nearby, has been attempted to be converted. It is also pointed out that the unauthorised filling of the paddy land cannot be justified and the statutory authorities and the Government are bound to protect the paddy lands and wet lands from illegal conversion.
8. Before going into the contentions of the parties, it is worthwhile to refer to the various provisions of the Act. The Kerala Conservation of Paddy Land and WetLand Act, 2008 (for short ‘the Act’) was brought into force on 12.8.2008 The statement of objects and reasons gives in detail the necessity and the importance to support the ecological system and to prevent unauthorised filling up of paddy lands and wet lands. It is principally brought into force to conserve paddy land and wet land and therefore the indiscriminate and illegal filling of the same is sought to be prohibited under the Act.
9. Section 2(xii) of the Act defines ‘paddy land’ as follows:
“(xii) “paddy land” means all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy, cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals.”
10. Wetland is defined under Section 2(xviii) of the Act which is in the following terms:
“(xviii) “wetland” means land lying between terrestrial and aquatic systems, where the water table is usually at or near the surface or which is covered by shallow water or charactrised by the presence of sluggishly moving or standing water, saturating the soil with water and includes backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers.”
11. The other important definitions noticeable are that of ‘conversion’ and ‘reclamation’ under Sections 2(iii) and 2(xv) of the Act.
12. Section 3 contains the ‘prohibition on conversion or reclamation of paddy land’. Section 3(1) provides as follows:
“On and from the date of commencement of this Act, the owner, occupier or the person in custody of any paddy land shall not undertake any activity for the conversion or reclamation of such paddy land except in accordance with the provisions of this Act.”
13. The main arguments have been centered on the effect of Section 5(4) of the Act and it is profitable to extract Section 5 itself in full which is given below:
“5. Constitution of Local Level Monitoring committee.— (1) There shall be a Local Level Monitoring Committee in each Panchayat or Municipality, consisting of the members specified in sub-section (2), for the purpose of monitoring the implementation of the provisions of this Act.
(2) The composition of the Committee shall be as follows:—
(i) The President or Chairperson/Mayor of the Grama Panchayat or the Municipality or the Corporation, as the case may be; Chairman (ii) The Agricultural Officer/Officers having jurisdiction in the Grama Panchayat or Municipality/Corporation; Member/Members (iii) Village Officer/Officers having jurisdiction in the said area; Member/Members (iv) Three representatives of fanners in the Panchayat/Municipality/Corporation to be nominated in such manner, as may be prescribed
The Agricultural Officer shall be the Convenor of the Committee.
(3) The Committee shall have the following powers, namely:—
(i) Subject to the provisions of this Act, to recommend to the State Level Committee or District Level Authorised Committee, as the case may be, for the reclamation of paddy land, for public purpose or for construction of residential building for the owner of the paddy land:
Provided that the Committee shall not recommend for filling of paddy land of more than ten cents in a Panchayat or five cents in a Municipality/Corporation, as the case may be, for the construction of residential building for the owner of the paddy land;
(ii) to inspect the paddy land situated within the jurisdiction of the Committee to monitor whether the provisions of this Act are being complied with and to report to the Revenue Divisional Officer regarding violations, if any, of the provisions of this Act;
(iii) to examine the complaints received from the public regarding the attempts to violate the provisions of this Act and to intervene in the issue to prevent such violation;
(iv) to examine the reason for keeping the paddy land fallow and to suggest remedial measures so as to persuade the holder of paddy land to cultivate it with paddy or any intermediary crops;
(4) The Committee shall perform the following functions, namely:—
(i) to prepare the data-bank with the details of the cultivable paddy land and wetland, within the area of jurisdiction of the Committee, with the help of the map prepared or to be prepared by the State Land Use Board or Centre-State Science and Technology Institutions on the basis of satellite pictures by incorporating the survey numbers and extent in the data-bank and get it notified by the concerned Panchayat/Municipality/Corporation, in such manner as may be prescribed, and exhibit the same for the information of the public, in the respective Panchayat/, Municipality/Corporation Office and in the Village Office/Offices;
(ii) to make alternate arrangements under Section 16 where a paddy land is left fallow without taking steps in spite of the instructions given by the Committee under item (iv) of sub-section (3);
(iii) to prepare detailed guidelines for the protection of the paddy lands/wetlands in the areas under the jurisdiction of the Committee;
(iv) to collect the details of the paddy land within the area of jurisdiction of the Committee, reclaimed in contravention of the provisions of any law for the time being in force, before the date of commencement of this Act and to give the report to the Revenue Divisional Officer;
(v) to perform such other functions, as may be prescribed from time to time.
(5) The quorum for a meeting of the Committee shall be three and it shall meet as and when required and the venue for the meeting shall be the respective Panchayat Office and the time of meeting shall be fixed by the Chairman.
(6) The Committee may decide the procedure for its meetings and the concerned Agricultural Officer shall keep the proper minutes of the meeting signed by every person attended.”
14. Section 7 provides that the Agricultural Officers shall be the reporting officers, in respect of the paddy land in the area under their jurisdiction and it shall be their responsibility to report the Revenue Divisional Officer regarding any act in violation of the provisions of this Act. If any paddy land is kept fallow during any agricultural season, the Agricultural Officer shall inform that matter also to the Committee. Sub-section (2) of Section 7 provides that “wilful omission to make a report under sub-section (1), regarding the contravention of the provisions of the Act shall be deemed to be an offence under Section 23. Sections 8 and 9 refers to constitution of State Level Committee and District Level Authorised Committee. Section 10 confers power on the Government to grant exemption. Section 11 prohibits reclamation of wetland which is extracted below:
“11. Prohibition on reclamation of wetland.— On and from the date of commencement of this Act, the wetlands of the State shall be maintained as such and there shall be a total prohibition on reclamation of such wetland and removal of sand there from:
Provided that nothing contained in this section shall affect the removal of slurry and mud to maintain the ecological condition of such wetland.”
15. Section 12 relates to appointment of Authorised Officers and their powers. Sub-sections (1) and (2) of Section 12 are relevant here, which are extracted below:
“12. Appointment of Authorized Officers and their Powers.—
(1) The Government may, by notification in the official Gazette, appoint such officers of the Revenue Department not below the rank of Revenue Divisional Officer as authorized officers and may determine the area of jurisdiction within which they shall exercise their powers under this Act.
(2) The Authorized Officer may, for the purpose of inspecting whether any of the provisions of this Act have been violated, or to prevent the commission of any of the offences under this Act.—
(a) enter any premises or any place connected therewith with such preparation as he thinks necessary for the inspection or investigation into the alleged offence under this Act;
(b) require any person to stop any act in contravention of Section 3 or Section 11;
(c) seize any vessel, vehicle or other conveyance or any implements used or purported to be used in contravention of the provisions of this Act and send a report to the Collector for initiating proceedings for their confiscation;
(d) require any person to furnish such information as he may consider necessary;
(e) take photographs, make inventories or do other things necessary for collecting evidence regarding the commission of the offence and send a report to the Court of competent jurisdiction in order to prosecute the accused.”
16. The District Collector invoked the power under Section 13 of the Act while passing Ext. P6 and the argument was centered on the scope of the Section. Section 13 is extracted below:
“Power of the District Collector.— Notwithstanding anything contained in the Act, the Collector may take such action, as he deems fit, without prejudice to the prosecution proceedings taken under the Act, to restore the original position of any paddy land reclaimed violating the provisions of this Act, and realize the cost incurred in this regard from the holder or occupier of the said paddy land, as the case may be, so reclaimed after giving him a reasonable opportunity of being heard.”
17. The entire scheme of the Act shows that the purpose of the Local Level Monitoring Committee is to monitor the implementation of the provisions of the Act. The powers of the Committee are conferred under sub-section (3) of Section 5. Going by sub-section (ii) of Section 5(3), they have got power to inspect the paddy land situated within the jurisdiction of the Committee to monitor whether the provisions of the Act are being complied with and to report to the Revenue Divisional Officer regarding violations, if any, of the provisions of the Act. Sub-section (iii) confers power to examine the complaints received from the public regarding the attempts to violate the provisions of the Act and to intervene in the issue to prevent such violation. Under sub-section 4(iv) of Section 5, the Committee has got the function to collect the details of the paddy land within the area of jurisdiction of the Committee, reclaimed in contravention of the provision of any law for the time being in force, before the date of commencement of the Act and to give the report to the Revenue Divisional Officer.
18. Section 5(4)(i) relates to the preparation of data-bank with details of the cultivable paddy land and wetland, within the area of jurisdiction of the Committee. For this purpose, they can seek the assistance of the map prepared or to be prepared by the State Land Use Board or Centre-State Science and Technology Institutions and that too on the basis of satellite pictures by incorporating the survey numbers and extent in the data-bank. It will have to be notified by the concerned Panchayat/Municipality/Corporation in the manner prescribed, which will have to be exhibited for the information of the public, in the respective offices and in the Village Office/Offices.
19. The rules framed under the Act provide that the District Collector will have to nominate the members of the Committee from the list forwarded by the Agricultural Officer. It is important to notice that three of the members of the committee should be representatives of the farmers. The procedures regarding the preparation of data bank are provided in Rule 4. Going by Rule 4, the data bank should be prepared by the Committee in respect of “existing cultivable” paddy lands and wet lands along with survey number and extent. Sub-rule (2) concerns the manner in which the data bank is to be prepared. It requires examination of the revenue records, inspection by the Agricultural Officer as well as by the Village Officer and they will have to prepare a draft data bank and submit it before the Committee. The Agricultural Officer will have to inspect each land, the details of which are shown as paddy land in the revenue records as furnished by the Village Officer to find out whether they are fit for paddy cultivation as of now. The Village Officer has to inspect wet lands on the basis of revenue records. The Committee will have to examine the same and can make such corrections as they deem fit. They will have to finalise the same with the help of the map prepared with the aid of satellite pictures by the National Remote Sensing Agency, State Land Use Board, CESS, Information Kerala Mission, or any other Central or State Scientific Agencies. If they require any technical assistance, they can approach the District Collector who will have to provide such assistance. Sub-rule (2)(b) of Rule 4 provides that the data bank will have to be furnished to the Secretary of the local authority, who will have to publish it in the Kerala Gazette as a notification as well as in the offices of the Panchayat/Municipality/Corporation and Village Offices.
20. The provisions of Section 5 of the Act show that the Committee is given power to inspect the “paddy lands” and find out any violation of the provisions of the Act regarding “paddy land”. Regarding wet lands the function of the Committee is limited to the preparation of data bank. With regard to violations, if any, prior to the Act also, they will have to report it to the Revenue Divisional Officer which is evident from sub-section 4(iv) of Section 5. Even going by Section 7, the reporting officer is given power to report to the Revenue Divisional Officer with regard to violation of the provisions of the Act in respect of paddy land and not in respect of any other previous enactments.
21. When we come to Section 12, it is seen that the same empowers the Government to appoint officers of the Revenue Department not below the rank of Revenue Divisional Officer as authorised officers. They are also given powers under sub-section (2) of Section 12 to find out whether the provisions of the Act are being violated or to prevent the commission of any of the offences under the Act. They are conferred with power of entry in to the premises, seize any vessel, vehicle or other conveyance or any implements used or purported to be used in contravention of the provisions of the Act and send a report to the Collector for initiating proceedings for their confiscation. Significantly, sub-section 2(b) empowers them “to require any person to stop any act in contravention of Section 3 or Section 11.” Section 3 of the Act provides for prohibition on conversion or reclamation of paddy land after the coming into force of the Act. The power to issue stop memos is thus conferred on the persons authorised under Section 12 of the Act This is in addition to the power given to the Local Level Monitoring Committee under Section 5(3)(iii) to intervene in case of violation.
22. With regard to the other powers of the said Committee, it is discernible from Sections 15 to 17 that the Committee is having the power for taking action to cultivate the lands which are left fallow. They can issue direction under Section 15 to the owner to cultivate the property with paddy or any other intermediary crops. With the permission of the owner, they can provide cultivation of the paddy land through the Panchayat. With regard to the power of entry and seizure, it is the officer not below the rank of Revenue Divisional Officer, an officer authorised by Revenue or a Police Officer not below the rank of Sub Inspector who can take action for conducting search of any premises, seize any vessel, vehicle or any other conveyance or machinery used or deemed to have been used for any activity in contravention of the provisions of the Act. Under Section 20, power is given to the District Collector to pass order of confiscation of the object seized under Section 12 or under Section 19. Section 23 is important here, which is extracted below:
“23. Penalty.— Any person who in violation of the provisions of this Act converts or reclaims any paddy land or wetland notified under sub-section (4) of Section 5, shall on conviction be punishable with imprisonment for a term which may extend to two years but shall not be less than six months and with fine which may extend to one lakh rupees but shall not be less man fifty thousand rupees.”
23. The above provision will show that for any successful prosecution proceedings, there should be a notification under Section 5(4) of the Act and the alleged violation of the provisions of the Act by converting or reclaiming any such land notified, will lead to a conviction. Under Section 30, the Government is conferred with power to make rules and Section 30(1) empowers the Government to publish the rules by notification in the Gazette the purpose of carrying into effect the provisions of the Act. Section 28 provides for revision before the Government either suo motu or on application from any aggrieved party from any orders passed by the District Collector.
24. The question is whether Section 13 confers wide and unrestricted power on the District Collector to order restoration of reclaimed paddy land and wet land and can the power be exercised in the absence of a notification notifying paddy lands and wet lands and whether he is exercising an unguided power in the absence of prescribed rules with respect to the action to be taken under Section 13.
25. Shri M.K Damodaran, learned Senior Counsel appearing for the petitioner submitted that Section 13 will show that the same is conferred on the District Collector who can take action without prejudice to the prosecution proceedings taken under the Act Going by Section 23 of the Act, the violation of the provisions of the Act in respect of any paddy land or wetland notified under sub-section (4) of Section 5 alone will lead to imposition of a penalty. Therefore, evidently when Section 13 provides that the District Collector can take action without prejudice to the prosecution proceedings taken under the Act, to restore the original position of any paddy land reclaimed, it is contended that all the preceding steps including notification of data bank under Section 5(4) of the Act are mandatory.
26. Before examining the said legal issue, some of the facts relating to this case are also relevant. Herein, the document Ext. P1 describes the property as partially converted paddy land. The total extent of land thus converted is about 2.14 hectares in two different villages. The District Collector's order Ext. P6 describes the property as “wet land”. The stand taken by the respondents in their counter affidavit is that the property is one known as part of ‘kole land’ which is used for paddy cultivation. It is pointed out that it will come within the definition of ‘paddy land’. Evidently, if the property is a wetland, the District Collector is not having any jurisdiction under Section 13. Restoration of a wet land is not mentioned anywhere in the Act even though there is total prohibition of its conversion. This amounts to a lacuna in the Act. Learned Additional Advocate General submitted that the definition of ‘paddy land’ in Section 2(xii) includes various types of lands suitable for paddy cultivation but left uncultivated. It is theref ore pointed out that kole lands in Thrissur District will come within the definition of paddy land. Herein, reliance is placed on Ext. R2(A), relevant portion of the information sheet on Ramsar wet lands. The details provided therein show that the name of wetland mentioned therein is “Vembanad-kol Wetland”. The area is 151250 hectares. In para 7 under the heading “Overview”, it is described that “the Vembanad-Kol Wetland System is the largest brackish, humid tropical wetland ecosystem in the Southwest coast of India. The wetland regularly supports 20,000 residential/migratory waterbirds, general of prawns, fishes and mangroves. Most significant values include flood occlusion, fishery, lime shellfishery, rice production, pollution abatement, inland navigation, port facility (Cochin Port) and breakwater tourism.” The General Location including the nearest large town and its administrative region is mentioned as “Alappuzha, Kochi and Thrissur towns” which falls within Alappuzha, Emakulam and Thrissur districts of Kerala State respectively. The ecological features under para 16 gives the details regarding the main habitats and vegetation types. It is mentioned that “Agriculture and fisheries in the wetland are considered to be conflicting values. Rice cultivation is practiced in the polders covering a total area of 100 sq.km; the yield of rice from the wetland is 406 times more than the uplands.”
27. The counter affidavit filed by the first respondent as well as the statement filed by the second respondent shows some of the details of the property. The properties of the petitioner are covered in two villages, viz. Koorkancherry and Aranattukara. The total extent is 22.76 acres, viz. about 9.2177 hectares. An extent of 4.2108 hectares is in Koorkkancherry village and 4.2108 hectares is in Aranattukara village. The total extent filled up by the petitioner is about 2.14 hectares in Koorkkancherry village. In para 7 of the statement filed by the second respondent, it is mentioned that at the time of purchase of the land by the petitioner, the entire land was lying as paddy field, fit for paddy cultivation. It is emphasised that only after purchase alone, the petitioner took steps to fill it up. The issuance of prohibitory orders and stop memos is sought to be supported by Annexures R2(C) and R2(D) as well as the seizure of the vehicles by the Police which is evident from Annexures R2(E) and R2(F). Annexure R2(H) is another prohibitory order issued by the Revenue Divisonal Officer, Thrissur. Ext. R2(I) is the report of the Agricultural Officer submitted before the District Collector and Annexure R2(J) is the prohibitory order issued by the Revenue Divisional Officer (Ext. R2 (D) itself). Mention is made about the complaint filed by the local M.L.A on 30.1.2010 complaining about the illegal conversion of kole lands. Annexure R2(K) is the newspaper report published in Mathrubhoomi Daily dated 20.1.2010 pertaining to filling of paddy fields and Annexure R2(L) is the judgment of this Court in W.P(C) No. 2449/2010 wherein certain lorry owners admitted that they had given the lorries on hire for filling up land comprised in Sy. Nos. 311/1C and 312/1 of Koorkancherry village. Annexure R2(M) is the proceedings of the Thrissur Corporation and Annexure R2(N) is the sketch showing the property. Annexure R2(P) is the relevant page of the basic tax register of Koorkancherry village which is produced to show that the properties in Sy. Nos. 309/9, 311/1 and 312/1 of Koorkancherry village are paddy fields. In the counter affidavit filed by the first respondent also, these contentions are repeated.
28. The Act clearly given a definition for “paddy land”. Wet land used for any paddy cultivation is not included in the definition of either paddy land or wet land. Paddy lands and rivers are specifically excluded from the definition of “wetland”. Going by the order Ext. P6, as far as kole lands are concerned, it will be covered by water and the water will have to be pumped out for the purpose of cultivation. Therefore, an essential question raised was whether it is a wet land or paddy land and was cultivated at all which is clearly a disputed question of fact. Evidently, no attempt was made by the District Collector to resolve this issue before the order is passed. He has proceeded as if the property is wet land, based on the fact that kol land is included in the list declared as Ramsar sites and by relying on certain other details and consequently the power is invoked under Section 13 describing it as wet land, in various parts of the order Ext. P6. He is not conferred with any jurisdiction as regards restoration to the original position of a wet land itself.
29. The next question is whether the orders issued under the Kerala Land Utilisation Order could have been ignored by the respondents. In fact, various contentions have been raised by the learned Addl. Advocate General with regard to the effect of the said orders also. Before going into that, I will refer to the orders itself. Ext. P2 is the order dated 17.8.1994 which is issued in respect of 7 acres 53¼ cents of land in Sy. Nos. 309 and 311/1 of Koorkancheri village. Therein, the application filed is dated 20.6.1994 by the predecessor in interest for the purpose of conversion of the same as paramba. The application has been allowed on certain conditions provided in the order itself. It appears that the conversion was sought for the construction of a residential building and other cultivations and as condition No. 3 it is mentioned that the conversion work should be commenced only on receipt of TUDAS sanction and local body's licence if any to construct the building. As condition No. 5, it is mentioned that “this order is valid only for the purpose of physical conversion of the land subject to actual possession of the land by the applicant” Ext. P3 is in respect of 6 acre 97¼ cents of land in Sy. Nos. 311/1 and 312/1 of Koorkancheri village. The conversion has been allowed on same conditions. The order Ext. P9 is in respect of 7 acres and 66 cents of wet land comprised in Sy. Nos. 824/1,2,4 and 826/3 of Aranattukara village. The order is dated 2.9.1994 and Ext. P10 order is also dated 2.9.1994, which is in respect of 7 acres and 78 cents of wet land comprised in Sy. No. 826/1 & 3 of Aranattukara village. Ext. P11 is the order similarly passed in respect of the nearby property.
30. The Kerala Land Utilisation Order is issued under the Essential Commodities Act which is in force even now. The Act in question viz. the Conservation of Paddy Land and Wet Land Act, 2008 does not nullify the orders passed under the Kerala Land Utilisation Order. Apart from that, the Central Act, viz. Essential Commodities Act, especially Section 6 of the said Act contains a provision with regard to the effect of the orders inconsistent with other enactments. It provides that “any order made under Section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act.” The question therefore is whether in the absence of any repeal of the Kerala Land Utilisation Order and whether even in case of such repeal the orders issued under the Act will lose its significance and will become inoperative.
31. This Court in Kairali Swayam Sahaya Sangam v. State Of Kerala (2009 (2) KHC 312), while considering the provisions of the Kerala Land Utilisation Order, considered the plenary nature of the same in the lighxt of Section 6 of the Essential Commodities Act and in the light of the principles laid down by the Apex Court in Harishankar Bagla v. The State of Madhya Pradesh (AIR 1964 SC 465). It was held thus in para 17:
“17. The Order issued under Section 3 of the Act virtually assumes characteristics of a plenary law by virtue of Section 3 of the Act. The principle that has been laid down by the Supreme Court in Harishankar Bagla v. The State of Madhya Pradesh, AIR 1964 SC 465 merits reproduction, with respect:
“Conceding however, for the sake of argument that to the extent of a repugnancy between an order made under Section 3 and the provisions of an existing law, to the extent of the repugnancy, the existing law stands repealed by implication, it seems to us that the repeal is not by any act of the delegate, but the repeal is by the legislative act of the Parliament itself. By enacting Section 6 Parliament itself has declared that an order made under Section 3 shall have effect notwithstanding any inconsistency in this order with any enactment other than the Act. This is not a declaration made by the delegate but the Legislature itself has declared its will that way in Section 6. The abrogation or the implied repeal is by force of the legislative declaration contained in Section 6 and is not by force of the order made by the delegate under Section 3. The power of the delegate is only to make an order under Section 3. Once the delegate has made that order its power is exhausted. Section 6 then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this Act. Parliament being supreme, it certainly could make a law abrogating Or repealing by implication provisions of any pre-existing law and no exception could be taken on the ground of excessive delegation to the act of the Parliament itself. There is no delegation involved in the provisions of Section 6 at all and that Section could not be held to be unconstitutional on that ground.”
32. In para 21, while considering a contention that the Committees under the Act have not been formed, it was held that “it is not a matter of insignificance that the Land Utilisation Order continues to remain in the statute alive and kicking, in spite of the enactment of the Kerala paddy Lands and Wet Lands Act, 2008.” The further question therefore is whether the order issued under the Kerala Land Utilisation Order allowing conversion, loses its force in the light of the prohibitory clauses under Sections 3 and 11 of the Wet Land Act, 2008.
33. Learned Senior Counsel appearing for the petitioner Shri Damodaran relied upon the following decisions of the Apex Court and this Court in this context: Travancore Rayos Ltd. v. Kerala State Pollution Control Board (2000 (1) KLT 175), Jayakrishnan v. District Collector (2009 (1) KLT 123), Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009 (3) KLT 899), Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co. ((2001) 8 SCC 397), and the judgment in W.P(C) No. 33434/2009 and some other decisions to contend that the orders issued are valid and continue to be in force in the absence of any retrospectively to the Act as well as in the light of the provisions of Section 6 of the General Clauses Act.
34. The Division Bench in Travancore Rayos Ltd.'s Case (2000 (1) KLT 175), considered the principles for interpretation as regards the retrospectivity of enactments. It was held that
“it is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. But the rule in general is applicable where object of statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in statute sufficient to show the intention of legislature to affect existing rights, it is deemed to be prospective only ‘nova constitutio futuris formam imponere debet non praeteritis’ (a new law ought to be prospective, not retrospective, in its operation) Provisions which touch a right in existence at the passing of statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Every statute, it has been said, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect. As a logical corollary of general rule, that retrospective operation is not token to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary,”
35. In the decision reported in Shahanaz Shukkoor's Case (2009 (3) KLT 899), while considering the effect of the provisions of the Act, 2008 the learned Judge also considered the question whether the description of the property as ‘paddy field’ in the revenue records is crucial to decide the nature of the land. It was held thus:
“The mere description of an item of property as ‘Nilam’ (paddy field) or wetland, in the revenue records, is insufficient to assume that the land cannot be used for any purpose other than those for which a paddy field or wetland can be used. This is because the Kerala Conservation of Paddy Land and Wet Land Act, 2008 deals with the conversion of lands, which are wetland or paddy fields, on the basis of the actual fact situation and not depending on the description of the property in the revenue records. The definition of the terms ‘paddy field’ and ‘wetland’ in the said Act is sufficient material to hold that the said statute operates on the basis of the facts as they exist on ground realities and not on any quality or type of land, depending on its description in the title document.”
36. The above decisions were considered by a Division Bench of this Court in Praveen v. Land Revenue Commissioner (2010 (2) KLT 617). Therein also, it was held that the Act is prospective in operation. While considering the effect of the Kerala Land Utilisation Order, and the fate of pending applications under the same Act, it was held in para 11 thus:
“Thus, in respect of paddy land and wet land as defined under the Act, even if an application was made before appropriate authority under the Land Utilisation Order and in so far as no permission is granted in terms of the provisions contained therein, such conversion or reclamation of the paddy land is to be governed by the provisions contained in Act 28/2008 since the effect of the prohibition contained in Ss. 3 and 11 is against reclamation or conversion of the paddy land and wet land. Once the Act has come into force, the mere fact that there is any pending application under the Land Utilisation Order is of no consequence. Thus, though the Act is prospective in its operation, in the light of the above provision, one cannot reclaim or convert a paddy field without permission being obtained in accordance with the provisions of the Act.”
37. Therefore, the dictum will show that pending applications under the Kerala Land Utilisation Order will have to be considered under the Act. In the light of the finding that the Act is only prospective in operation, the question will have to be considered is whether the orders passed already under the Kerala Land Utilisation Order, can be said to be nullified by the provisions of the Act. The Division Bench only said that the pending applications alone need be considered under the Act Finally, the Division Bench examined the question whether the provisions of the Kerala Land Utilisation Order still survives in respect of other food crops and the question was answered in para 12 thus:
“We may, however, notice that except in the case of paddy land and wet land, the provisions contained in the Land Utilization Order still survives in respect of the other food crops. As we have noticed, as per the definition “food crops” under the Land Utilization Order, encompasses not only paddy crops but also fish, sugar cane, vegetable, tapioca, yam, tea, coffee, cardamom, pepper, groundnut, cocoa, banana plantain etc. Since Act 28/2008 confines its application to paddy land and wet land, restriction imposed under the Land Utilization Order under Cl. (6) thereof in respect of other food crop will have continued operation and such conversion or attempt of conversion or utilize or attempt to utilize such land other than paddy land or wet land will continued to be governed by the provisions contained in the Land Utilization Order and such application for permission has to be moved before appropriat authority and to be dealt with in accordance with the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. Therefore, we agree with the view expressed in the decision reported in Jayakrishnan v. District Collector (2009 (1) KLT 123).
38. The Division Bench also considered the issue whether any application claiming that the land is not a paddy land and seeking for an order under the Kerala Land Utilisation Order is valid, and it was held that the said matter will be gone into by the authorities under the Kerala Land Utilisation Order. It was finally held in para 15 as follows:
“If it is a paddy land or wet land, necessarily, it stands outside the jurisdiction of that authority in processing the application further or in granting any permission sought for. On the other hand, if it is held that it is not paddy land or wet land, but cultivated with crops other than paddy, necessarily, the authority under the Land Utilisation Order will have to process the application in terms of the provisions contained therein and dispose of the same.”
39. This indicates that the orders issued under the Kerala Land Utilisation Order are not affected by the promulgation of the Act. The applicability of the Act is confined to paddy lands and wet lands as it exists presently. The decision in Jayakrishnan's case (2009 (1) KLT 123) and Shahanaz. Shukkoor's case (2009 (3) KLT 899) were affirmed. Hence, the description of properties in revenue records will not be conclusive.
40. 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 Section 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.
41. The Apex Court in Ambalal Sarabhal Enterprises Ltd.'s case ((2001) 8 SCC 397), relied upon the earlier decision of the Apex Court in M.S Sivananda v. Karnataka SRTC ((1980) 1 SCC 149). In para 30 of the judgment, the principle has been delineated. For the applicability of Section 6 of the General Glauses 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 Raiasthan ((1989) 2 SCC 557) wherein, in para 30 it was held thus:
“For purposes of these clauses the ‘right’ mustbe ‘accrued’ and not merely an inchoate one. The distinction between what is and what is not a right preserved by Section 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.”
42. 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.”
43. 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.
44. Learned Senior Counsel for the petitioners further relied upon the decision of the Apex Court in Howrah Municipal Corporation v. Ganges Rope Co. Ltd. ((2004) 1 SCC 663) : 2004 KHC 405) wherein, in para 37 the meaning of the word ‘vest’ was interpreted. It was held thus:
“The word ‘vest’ is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word ‘vest’ has also acquired a meaning as “an absolute or indefeasible right”. (See K.J Aiyer's Judicial Dictionary (A complete Law Lexicon) Thirteenth Edition.)
45. With regard to the retrospective nature of the statutes and the principles discernible for deciding such matter, this Court in W.P(C) No. 33434/2009 (Reported as Bhaskaran v. State of Kerala, 2010 (2) KLT 908) considered various decisions of this Court and that of the Apex Court reported in State Of T.N v. Arooran Sugars Ltd.. [(1997) 1 SCC 326]; Shri Vijayalakshmi Rice Mills v. State of A.P [(1976) 3 SCC 37 : AIR 1976 Supreme Court 1471]; Itw Signode India Ltd. v. Collector Of Central Excise. [(2004) 3 SCC 48]; Aravindakshan & Ors. v. State Of Kerala & Ors. [2000 (1) KLT 107]; Varkey Abraham v. Secretary to Government [2007 (3) KLT 702]; State of Kerala v. Bhaskaran Pillai [2007 (3) KLT 711 (SC)]; Travancore Rayons Ltd. v. Kerala State Pollution Control Board [2000 (1) KLT 175];
46. 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 Section 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 facte 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 orto 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.’”
47. 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.
48. Shri Damodaran, relied upon the principles stated by the Apex Court in B.K Srinivasan v. State of Karnataka ((1987) 1 SCC 658 : AIR 1987 SC 1059), Orient Paper and Industries Ltd.'s case (1991 Supp (1) SCC 81). I.T.C Bhadrachalam Paper Boards v. Mandal Revenue Officer. A.P ((1996) 6 SCC 634), K. Sabanayagam's case ((1998) 1 SCC 318) and Peer Mohammed v. Chirakandam Grama Panchayat (2008 (3) KLT 300) to contend for the position that the Act itself is a conditional legislation and therefore unless a local level monitoring committee comes with a notification giving details of the paddy land and wet land, no action could have been initiated.
49. Learned Addl. Advocate General submitted that if such a course is considered as mandatory, it will lead to an anamolous situation wherein till the notification is issued, anybody can violate the provisions of the Act by converting paddy land and wet land and it is therefore pointed out that a purposive interpretation will have to be adopted. It is pointed out that the provisions of Sections 3 and 11 do not impose such a condition that the same will apply only to paddy lands and wet lands notified under Section 5(4) of the Act.
50. The principles regarding conditional legislation are well known. The first of the decisions referred to by the learned Senior Counsel Shri Damodaran is Orient Paper and Industries Ltd. v. Straw Products Ltd. (1991 Supp (1) SCC 81). In para 27 it was laid down thus:
“27. We see no merits in the contention that Section 1(3) is invalid by reason of excessive delegation. In Sardar Inder Singh v. State of Rajasthan (AIR 1957 SC SC 510) Venkatarama Ayyar, J. referring to the proposition of law, which had the support of the majority of the learned Judge in In re Delhi Laws Act, 1912 stated: (SCR p. 616)
“[W]hen an appropriate legislature enacts a law and authorises an outside authority to bring it into force in such area or at such time as it may decide, that is conditional and not delegated legislation and that such legislation is valid.”
51. After referring to the observation of Lord Selborne in Queen v. Burah, Venkatarama Ayyar, J. concluded thus: (SCR p. 618)
“This is clear authority that a provision in a statute conferring a power on an outside authority to bring it into force at such time as it might, in its own discretion, determine, is conditional and not delegated legislation, and that it will be valid, unless there is in the Constitution Act any limitation on its power to enact such a legislation.”
52. Para 28 is also important which is extracted below:
“28. We may in this connection set out the words of Lord Selborne in Queen v. Burah to which Venkatarama Ayyar, J. referred: (IA pp. 194-95)
“The legislature determined that, so far, a certain change should take place; but that it was expedient to leave the time, and the manner of carrying it into effect to the discretion of the Lieutenant-Governor — The proper legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute. Where plenary powers of legislation exists as to particular subjects, whether in an imperial or in a provisional legislature, they may (in their Lordship's judgment) be well exercised, either absolutely or conditionally. Legislation, conditional on tile use of particular powers, or on the exercise of a limited discretion, entrusted by the legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient….”
53. Venkatarama Ayyar, J. further stated: (SCR p. 618)
“…. The reason for upholding a legislative provision authorising an outside authority to bring an Act into force at such time as it may determine is that it must depend on the facts as they may exist at a given point of time whether the law should then be made to operate, and that the decision of such an issue is best left to an executive authority. Such legislation is termed conditional, because the legislature has itself made the law in all its completeness as regards ‘place, person, laws, powers’, leaving nothing for an outside authority to legislate on, the only function assigned to it being to bring the law into operation at such time as it might decide……”
54. These observations show that Section 1(3) is a true example of conditional legislation, and not delegated legislation, and it is perfectly valid.”
55. The next decision is B.K Srinivasan's Case ((1987) 1 SCC 658 : AIR 1987 SC 1059) wherein in para 15 it was held thus:
“There can be no doubt about the proposition that where a law, whether Parliamentary or Subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the ‘conscientious good man’ seeking to abide by the law or from the standpoint of justice Holmes's Unconscientious bad man's seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known. We know that delegated or subordinate legislation is all pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by Parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute are not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable.”
56. In I.T.C Bhadrachalam Paper Board's case ((1996) 6 SCC 634) also, the Apex Court considered the relevant principles regarding conditional legislation and the distinction between conditional legislation and delegated legislation. In para 26 the relevant principles are stated as follows:
“26. What is, however, relevant is that the power to bring an Act into force as well as the power to grant exemption are both treated, without a doubt, as belonging to the category of conditional legislation. Very often the legislature makes a law but leaves it to the executive to prescribe a date with effect from which date the Act shall come into force. As a matter of fact, such a course has been adopted even in the case of a constitutional amendment, to wit, the Constitution (Forty-fourth Amendment) Act, 1978, insofar as it pertains to amendment of Article 22 of the Constitution. The power given to the executive to bring an Act into force as also the power conferred upon the Government to exempt persons or properties from the operation of the enactment are both instances of conditional legislation and cannot b described as delegated legislature.”
57. In para 22, the decision of the Apex court in Hamdard Dawakhana (Wakf) v. Union of India ((1960) 2 SCR 671) was relied upon. It is of importance in this context.
58. Learned Addl. Advocate General submitted that the principles of conditional legislation are not applicable herein, especially in the context of Sections 3 and 11 of the Act and the definition of ‘paddy land’ and ‘wet land’ in Sections 2(xii) and 2(xviii) of the Act, which are exhaustive to find out the nature of the land. Notification under Section 5(4) of the Act is not required in such cases.
59. Learned Senior Counsel for the petitioners by relying upon a decision of this Court in Peer Mohammed's case (2008 (3) KLT 300) which considered a question under Section 18 of the Highway Protection Act, contended that unless a notification is issued, the District Collector cannot invoke the power since he is not the authority to independently consider whether the land in question is a paddy land or wet land and no machinery is provided for enabling him to decide the matter. In the above decision, the question raised was whether the notification of the building line and control line determined is a necessary requirement for the exercise of power. As per Section 18 of the said Act, the Building line and Control line determined by the competent authority shall be published in the official Gazette and in two daily newspapers. This Court in para 14 held that the exercise of power under Section 18 is a conditional one. The principle was laid down thus:
“14. The exercise of power under S. 18 is a conditional one. Unlike parliamentary legislation which is publicly made, delegated, or subordinate legislation is often made, unobtrusively in the chamber of a Secretary to Government or other official of the state. It is therefore, necessary that such subordinate legislation, in order to take effect must be published or promulgated strictly in the manner as provided in the statute. It will then take effect from the date of such publication. This is the law laid down by the Apex Court in its judgment in B.K Sreenivasan v. State of Karnataka reported in (1987) 1 SCC 658. That apart, it is trite law that if a statute requires something to be done in a particular manner, it shall be done in that manner and in no other. In this case, S. 18(2) provides the manner in which the publication is to be effected and if that be so, the mode prescribed by the statute must be followed and such a requirement is imperative and cannot be dispensed with.”
60. Shri Damodaran also relied upon another decision of the Apex Court in State of T.N represented by Secretary, Housing Deptt. Madras v. K. Sabanyagam ((1998) 1 SCC 318) in this context. The same concerns a similar question under the Payment of Bonus Act. In para 14, their Lordships held as follows:
“The distinction between delegated legislation and conditional legislation is a clear and well-settled one. In this connection, we may usefully refer to a Constitution Bench decision of this Court in the case of Hamdard Dawakana (Wakf) v. Union of India, AIR 1960 SC 554, Kapur J. speaking for the Constitution Bench has made the following pertinent observations at pp. 695-96 of the Report:
“The distinction between conditional legislation and delegated legislation is this that in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective; Hampton & Co. v. U.S (276 US 394) and the latter involves delegation of rule-making power which constitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles, of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend; (R. v. Burah, (1878) 3 AC 889 PC, Russell v. R., (1882) 7 AC 829, AC at p. 835; King Emperor v. Benoari Lal Sarma, (1944) 72 IA 57, Sardar Inder Singh v. State of Rajasthan, AIR 1957 SC 510). Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purpose of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegate legislation. But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation.”
61. After relying upon the principles stated in Hamdard Dawakhana (Wakf)'s case (AIR 1960 SC 554), their Lordships held thus:
“It is thus obvious that in the case of conditional legislation, the legislation is complete in itself but its operation is made to depend on fulfilment of certain conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether or not those conditions are fulfilled. In case of delegated legislation proper, some portion of the legislative power of the legislature is delegated to the outside authority in that, the legislature though competent to performs only the former and parts with the latter, i.e the ancillary function of laying down details in favour of another for executing the policy of the statute enacted. The distinction between the two exists in this that whereas conditional legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of excessive delegation, delegated legislation does confer some legislative power on some outside authority and is therefore open to attack on the ground of excessive delegation. In this connection we may also refer to a decision of this Court rendered in the case of Sardar Inder Singh v. State of Rajasthan, wherein it is laid down that when an appropriate legislature enacts a law and authorises an outside authority to bring it into force in such area or at such time as it may decide, that is conditional and not delegated legislation.”
62. Finally, in para 17 it was held thus:
“17. It will be noticed from the above rulings in Hamdard Dawakhana, Sardar Inder Singh and Tulsipur Sugar Co. Ltd. which are cases of “conditional legislation” that this Court while dealing with mere extension of the provisions of an Act to other areas, persons, etc. has categorically held the same to be “conditional” legislation. On the other hand “price fixation” etc. was treated in Cynamide as “delegated” legislation, the reason being that in the case of delegated legislation the legislature lays down the policy broadly leaving it to the delegate to supply details while in the case of conditional legislation the legislation is complete and the legislature leaves it to the delegate to exercise discretion as to the time and manner of carrying the legislation into effect as also the determination of the area to which it is to extend. This is clear from the decision of the Constitution Bench in Hamdard Dawakhana case. In fact, even in Cynamide case which is a case of delegated legislation dealing with price fixation, Chinnappa Reddy, J. pointed out that an action of the delegate, while supplying details of the legislation lays down the policy for the future as in price fixation cases and therefore the action of the delegate is legislative in character and precludes application of principles of natural justice. But the learned Judge agreed that where the delegate is making factual decisions on the basis of past or existing facts, it amounts to “administrative adjudication” and different considerations can apply. The learned Judge said that there is a real distinction between a “legislative Act” and “administrative adjudication” (p. 736) : (SCC para 7).
“[A]djudication determines past and present facts and declares rights and liabilities while legislation indicates the future course of action.”
63. And quoted Schwartz's Administrative Law (1976 Edn., pp. 143-44). See now Schwartz (1991 Edn. pp. 163-64) quoting Scalia. J. in Bowen v. Georgetown University Hospital at pp. 217 and 221, to the effect that:
“a rule is a statement that has legal consequences only for the future; and adjudication deals with what the law was, rule-making deals with what the law will be.”
64. Herein, one of the contentions raised by Shri Damodaran is that the provisions of the Act with regard to the preparation of data bank, etc. etc. and other provisions require strict compliance of the principles of natural justice. It is pointed out that the idea in entrusting the function to the Local Level Monitoring Committee is to involve the representatives of the farmers of the locality for identifying the paddy land and wet land in terms of the democratic principles. It is therefore pointed out that the District Collector cannot assume arbitrary power under Section 13 of the Act, dehors the provisions of the Act, on whatever lines he wants to act and pass orders without appointing a monitoring committee which is empowered to act under Section 5(4), which is a pre condition itself. Therefore, it is pointed out that unless and until a notification is there, the District Collector is disabled to proceed under Section 13 of the Act and therefore it cannot be assumed that the District Collector can exercise such a power to direct reconversion and restoration of the property to its original position. It is pointed out that the non obstante clause contained in Section 13 will not help the District Collector to exercise such a power.
65. Learned Addl. Advocate General submitted that the non obstante clause in Section 13 will act on all fours enabling the District Collector to exercise such a power even in the absence of a notification by the local level monitoring committee. Herein, it will be profitable to notice some of the relevant provisions of the Act. The prohibition to convert paddy land and wet land under Sections 3 and 11 is effective from the date of commencement of the Act. With regard to the prevention of such acts, the Committee itself is given power under Section 5(3)(iii) of the Act to intervene in the event of a complaint to prevent violation of the provisions of the Act. They can also report about the same to the Revenue Divisional Officer, evidently for the said officer to exercise the power under Sections 12 and 19. It is true that the Reporting Officers under Section 7 of the Act can report in respect of the paddy land in the area under their jurisdiction, about any act in violation of the provisions of the Act But identification of the cultivable paddy land and wet land with respect to their survey number, nature and extent, etc. is the function of the Committee under Section 5(4) of the Act. The Committee is given power to correct the draft submitted by the Officers. Of course, the officers authorised under Section 12 are empowered to stop any act in contravention of Sections 3 and 11. The officers can safely rely upon the powers under Sections 12 and 19 to prevent the commission of offences, as otherwise the object of the Act will be defeated.
66. But that may not help the fact situation herein in respect of the exercise of power under Section 13 even though there is a non obstante clause. The provision under Section 13 shows that the power to restore the property into its original position is without prejudice to the prosecution proceedings taken under the Act. It is in the form of a parallel proceedings. Therefore, normally the pre conditions for setting in motion the prosecution proceedings should be present for the District Collector to invoke power under Section 13. If as argued by the learned Addl. Advocate General it is understood that the District Collector has got absolute power dehors the other provisions of the Act, then the power will be rendered as unguided making the provision unconstitutional and arbitrary. Of course, the purpose and object of the Act should be gone into while interpreting the provisions of the Act.
67. It is not as if the officers have no power to take preventive action. True that Section 5 requires the forming of a Local Level Monitoring Committee for exercising the powers and functions under Section 5. But the formation of a committee may take some time and administrative delay will also be there in such matters. If the argument of the learned Senior Counsel for the petitioner is accepted, then even for violation of Sections 3 and 11, nobody can take action unless and until a committee comes with a data bank and notifies it. Such a situation cannot be countenanced. The avowed object of the provisions is to prevent illegal conversion and reclamation of paddy land and other wet land and discriminate sand mining, etc. Therefore, it can be seen that if the formation of the committee is delayed and the preparation of data bank is also delayed, it will result in an anomalous situation. Therefore, I am not prepared to accept the contention that preparation of date bank and its notification is a must for invoking powers under the various provisions of the Act by the respective authorities. Notification will be a condition precedent for the applicability of certain provisions of the Act. It is safe to conclude that the power to exercise a preventive action, is conferred on the Committee under Section 5(3)(iii) as well as on the authorities under Section 12(2)(b) of the Act. The notification may not be a mandatory one in such cases, as otherwise they will be turned mute spectators even in respect of a violation of the provisions of the Act. But the notification will be required for taking remedial and penal actions envisaged under the Act. Such remedial actions will include restoration of the paddy land under Section 13 as well as taking prosecution proceedings envisaged under Sections 23 and 25. The various provisions of the Act indicate the concern of the legislature to prevent the illegal conversion of paddy land and wet land. Therefore, a purposive interpretation of the provisions of the Act is required. In fact, the Local Level Monitoring Committee constituted under Section 5 of the Act has to play a larger role since Section 5(1) clearly lays down that the Committee is formed “for the purpose of monitoring implementation of the provisions of the Act.” Therefore, they alone can monitor the implementation of the provisions of the Act. It is their duty to prepare the data bank under sub-section (4) of Section 5. In fact, they had been given power to prepare data bank with the details of the cultivable paddy land and wetland within the area of jurisdiction of the committee. Therefore, the Committee and its functioning cannot be considered as a secondary one while considering the powers of the officers authorised under Section 12 and that of the District Collector under Section 13 of the Act.
68. Hence, the principles governing conditional legislation will apply as far as taking remedial and penal action under the provisions of the Act and not to the preventive action envisaged. Otherwise, it will result in a situation wherein the District Collector and the Committee can act differently when a dispute arises whether a plot of land is a cultivable paddy land or wet land or a converted one already. Opinion can differ in such cases. Evidently, no rules have been framed for exercise of the power under Section 13. The rules prescribe the method for preparing data bank by the Committee itself. It consists of three representatives of farmers, which evidences the fact that the local knowledge and their experience play a larger role in finalising the data bank in respect of “cultivable” paddy land. All the items of land recorded as paddy land in revenue records, need not be cultivable also. the The power given to the District Collector under Section 13 is evidently to restore to its original position paddy land in case of violation of the provisions of the Act. After the data bank is prepared under Section 5(4) of the Act and notified under Rule 4(2)(b) of the Rules, then only the District Collector can find out whether there is any violation in respect of a paddy land. Parties may also dispute the nature of the land as descriptions in revenue records are not conclusive. In the absence of any rules framed for exercising the power under Section 13, the only conclusion possible therefore is that he will have to rely upon such a notification to find out whether the area under dispute is a cultivable paddy land or wet land or a converted land. No other machineries have been provided to the District Collector to have any other source of information on these vital aspects required for him to exercise the power under Section 13. Sections 7 and 12 will help only to take preventive action.
69. Learned Addl. Advocate General contended that Section 7 confers power on the Agricultural Officers who are the Reporting Officers, to inform about any violation of the provisions of the Act, to the Revenue Divisional Officer which will enable the District Collector to exercise the power under Section 13. Herein, one thing that is evident is that his responsibility is to report to the Revenue Divisional Officer. True that the Revenue Divisional Officer can also be appointed as authorised officer under Section 12. The powers of such an authorised officer includes power to enter any premises or place, seize any vessel, vehicle, etc. etc. It gives the power to require any person to stop any action in contravention of the provisions of Sections 3 and 11 of the Act. Therefore, the reporting by the officer under Section 7 can lead to an action under Section 12. Evidently the report of the Revenue Divisional Officer was relied upon here by the District Collector. But while passing final orders under Section 13, unless and until he gets help under other provisions of the Act he cannot bank upon the report of the Agricultural Officer and Authorised Officer to invoke Section 13, as otherwise it will be an unguided and arbitrary power. The basic data as far as the remedial actions under the Act is the data bank alone. The reporting officer and the authorised officer have not been given any function to identify the nature and details of paddy land, wet land or converted land. This is significant. If the District Collector is expected to act only in terms of the reports received from the officer coming under the provisions of Sections 7 and 12 and with the help of the officers under him alone, then the Committee will be a mute spectator and the functions of the Committee and their powers as recognised by the statute will become nugatory also. Such a contingency is not provided by the various provisions of the Act. In fact, much powers are conferred on the Committee under Section 5 and other provisions wherein they can examine the complaints received from the public against violation of the provisions of the Act, examine the reason for keeping the paddy land fallow and to suggest remedial measures and direct to cultivate the paddy land left fallow, under Section 15 of the Act and by other means under Section 16.
70. The effect of the non obstante clause in Section 13 of the Act was relied upon by the learned Additional Advocate General to contend that Section 13 will have an overriding effect. It is clear from the well settled principles that a non obstante clause is imported in a section so that the enacting part will have overriding effect in case of a conflict. Here, the idea conveyed under Section 13 will show that the power to direct restoration to original position of any paddy land reclaimed is without prejudice to prosecution proceedings. Therefore, the remedial action by way of restoration of the land can also be resorted to. The general words in the non-obstante clause could be considered only as having been intended to secure the object and purpose sought to be achieved by the legislation. In that view of the matter, it cannot be said that the non obstante clause will exclude every other provisions of the Act which serves a different purpose. Plainly, the enacting part governs the power conferred on an authority in addition to prosecution proceedings to restore to the original position any paddy land reclaimed violating the provisions of the Act. Therefore, the proceedings under various other sections need not deter the District Collector from taking recourse to the said power. The same can only be the effect of the non obstante clause. It may not exclude the powers of the Committee which have been conferred under various provisions of the Act for the District Collector to act under Section 13. It is evident from Section 5(4) and the rule already discussed, that the Committee alone has got the power to finalise the data bank regarding the cultivable paddy land, etc. etc. Since tile rule does not provide for any other machinery for the District Collector to go into such questions, the provisions will have to be harmoniously construed in that manner, so that the object and purpose of the Act also is well laid. Therefore, the said argument raised by the learned Additional Advocate General relying upon the non obstante clause, cannot be accepted in toto.
71. In Sudheer Kumar v. Kunhiraman (2008 (1) KLT 168) a Division Bench of this Court considered the relevant principles for interpreting the non obstante clause and laid down thus in paragraphs 11 and 12:
“It is true that S. 147 of N.I Act starts with the non obstante clause “not withstanding anything contained in the Code of Criminal Procedure 1973”. Such clauses are added with a view to give an overriding effect over the provision or Act mentioned in the non obstante clause in case of conflict, the provision or Act mentioned in the non obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non obstante clause will not be an impediment for the operation of the Section. Anon obstante clause may be used as a legislative device to modify the ambit of the provision or law mentioned in the non obstante clause or to override it in specified circumstances. Even though the notwithstanding clause is very widely worded, its scope may be restricted by construction having regard to the intention of the Legislature gathered from the enacting clause or other related provisions in the Act. This may be particularly so when the notwithstanding clause “does not refer to any particular provision which it intends to override but refers to the provisions of the statute generally. Therefore ‘non obstante clause’ has to be considered in the circumstances of each case.”
72. In the light of the above, I am fortified in taking the above conclusion.
73. The question therefore arises whether the District Collector was right in invoking the powers under Section 13 of the Act without identifying whether the land is paddy land or wet land or is converted at least partially, by the Committee. Evidently, the power under Section 13 could be invoked only if it is a paddy land. One thing that is to be noticed under the provisions of the Act is that even though Section 11 provides for prohibition for filling up of wet land, there is no provision conferring power on any authorities, under the Act to direct restoration to the original position of any wet land. As explained by the Division Bench in Praveen's case (2010 (2) KLT 617), as far as conversion of wet land is concerned, no authority can grant permission also under the provisions of the Act. But still, violation can occur. Absence of a similar provision like Section 13, therefore is a lacuna which has to be gone into by the legislature itself, as this Court cannot legislate on such matters.
74. The various other contentions also will have to be gone into while considering the validity of the order passed by the District Collector. The property purchased by the petitioner is 22.77 acres in extent. In Ext. P1 document what is mentioned is that it is partially converted. The converted portion, according to the respondents, is 2.14 hectares. The schedule of Ext. P1 describes the property as partially converted . Herein, some of the aspects pointed out by the learned Addl. Advocate General assume importance. The statement filed on behalf of the second respondent shows the details of the property as follows:
“Sy. No. Extent of property as per sale deed in hectares filled up area in hectares 309 1.8211 0.2240 311/1 0.0930 0.2016 312/1 2.2967 0.2642 Total 4.2108 0.6898
75. The above properties are in Koorkancherry village. The property filled up in Sy. No. 313/1 is 1.42 hectares as evident from Ext. P1 sale deed. The petitioner has not purchased any property in Sy. No. 313/1. With regard to this aspect, the explanation offered in the reply affidavit filed by the petitioner is thajas far as the property in Sy. No. 313/1 is concerned, even though it is not covered by the sale deed, it is in their possession and the same comes within their boundary. The orders produced by the petitioner under the Kerala Land Utilisation Order also do not cover Sy. No. 313/1 as evident from Exts. P2, P3, P9 and P10. It is pointed out by the learned Addl. Advocate General relying upon the averments in the statement as well as the sketch prepared by the officers concerned that a portion of the property in Sy. No. 313/1 is also reclaimed. Including the said land, the reclaimed portion will come just about 5 acres of land. Learned Addl. Advocate General submitted that proceedings are pending against the petitioner for possession and ownership of land exceeding the ceiling limit. The petitioner can only own properties as provided under Section 82 of the Kerala Land Reforms Act and even if it s a ‘nilam’ the ceiling area cannot be exceeded. It is pointed out that the ceiling limit under Section 82(d) of the Kerala Land Reforms Act will apply to them. The effect of Section 83 of the Kerala Land Reforms Act is also evident. The return submitted by the petitioner has been produced as Ext. P14, wherein also survey numbers included are 309.p, 311, 312/1, 826.lp, 826/3p, etc. Therein also, what is claimed is that it is partially converted paddy land. Herein, actually there is no reliable evidence except the averments of the contesting parties with regard to the period of conversion. The petitioner's case appears to be that it is only partially converted and the property is covered by wild growth etc. as no paddy cultivation is possible and no cultivation was there for more than 20 years. Nearby properties were also converted according to petitioner and there is no source of water for cultivation. Of course, the orders under the Kerala Land Utilisation Order have been issued way back in 1994. The District Collector in his order has recorded that the previous owner stated that he has not converted the land. The petitioner maintains that conversion was between 1994 to 2007 and that the allegation that they have tried to convert it after the coming into force of the Act is not correct. Herein, the second respondent relied upon Annexures R2(C) and R2(D) in support of the plea that they have been issued for attempted violation of the provisions of the Act. Annexure R2(C) is a stop memo issued by the Revenue Divisional Officer dated 17.1.2010 Evidently it is received by one Shri Babu and there is no evidence to show that it is received on behalf of the petitioner. There is no plea to show that the same has been served on the petitioner. Annexure R2(D) is the proceedings of the Revenue Divisional Officer. It is only a general order issued stating that any conversion of paddy and wet land after 12.8.2008 in lieu of the earlier KLU Order will be viewed as a violation cognizable as per the provisions of the Kerala Conversion of Paddy Field and Wet Land Act, 2008. This is also not served on the petitioner. Annexures R2(E) and R2(F) are the copies of mahazars prepared by Police while seizing certain vehicles, but no mention of the petitioner's name is there. The sketch prepared as Annexure R2(H) gives the details of the area filled up. No local inspection was conducted by the District Collector prior to the passing of the order. Going by the interim report filed before this Court, 6388 lorry loads of mud waste has been removed till 11.6.2010 Learned Senior Counsel therefore submitted that the contention of the respondents that the alleged violation is only recently, cannot be accepted on its face value in view of the huge quantity of mud removed in implementation of the order Ext. P6.
76. Learned Addl. Advocate General relied upon the recitals contained in power of attorney executed in favour of the petitioner to contend for the position that the conversion is after the purchase. Therein, it is recited that consent is given to execute the sale deed and to convert the property pursuant to the orders granted under the Kerala Land Utilisation Order. It is further pointed out that the details stated in Ext. P1 sale deed cannot be relied upon in the light of the fact that the power of attorney holder himself had executed the sale deed and has received the sale deed in favour of the petitioner.
77. In fact, learned Senior Counsel Shri Damodaran submitted that in the light of Sections 91 and 92 of the Evidence Act, the recitals of Ext. P1 document have to be accepted on its face value.
78. The fact situation therefore shows that there is no clear evidence regarding the date of filling or the period of filling, as both parties have conflicting and different stands in the matter. Evidently, going by the recitals in the power of attorney, permission was granted to fill it up. Shri Damodaran explained that the recitals therein relates to the portions which were remaining unfilled on that day. Whatever that be, going by the averments in the statement as well as the counter affidavit, it can be seen that out of the total extent of 22 acres, about 5.5 acres alone have been filled up. Whether it is prior to the coming into force of the Act or not, is hence to be decided. Of course, going by the interpretation placed by the Division Bench in Praveen's case (supra), the situation of the land as on the date of coming into force of the Act, has to be assessed also in the light of the contention that remaining land is also covered by wild growth and other materials. Therefore, further evidence is required in regard to the details regarding filling up of the area and whether the petitioner has filled up areas beyond his possession and also the nearby puramboke land. Since it is a factual aspect, it cannot be resolved by this Court in the light of the scanty evidence and non availability of other reliable evidence.
79. Much arguments have been raised on the effect of the notification of kole land as Ramsar site under a declaration of Ramsar Wetland. It is argued by the learned Senior Counsel appearing for the petitioner that the same will not help the respondents, as it does not extend to kole lands in Thrissur District, whereas the learned Addl. Advocate General disputed the same by stating that the notification will cover kole lands in Thrissur. Annexure R2(A) is the relevant information sheet, the details of which have been already referred to. The wetland therein is named as “Vembanad-kol wetland.” In para 16 the details regarding the cultivation in the kole area are separately mentioned. The nearest large town from its location includes Thrissur, going by para 13 therein. Shri Damodaran made available certain other documents also to argue for the position that it does not extend beyond Kodungallur. Evidently, the District Collector relied upon the said information sheet without going into the details of the same and many details are not available in Ext. P6 order also. What is of importance to notice is that in the Information Sheet on Ramsar Wetlands, the name of wetland is stated as “Vembanad-kol wetland.” Actually, going by the contentions of the respondents herein, the properties of the petitioner are paddy lands. The District Collector gives the nature of the property as wetland in the order itself.
80. The concept of dry land and wet land are known from old times and the nomenclature “wetland” is used in contra distinction to “dry land” relating to transaction of properties. The usage of these names is common in documents and records. But herein, we are concerned with the definition of “paddy land” and “wetland” under the Act in the light of the new legislation. A definition for “paddy land” and “wet land” has been introduced for the purpose of preventing conversion and reclamation. Even going by the object and reasons of the enactment, it is mentioned that the extent of the paddy land in the State is nearly two lakh hectares in the year 2000 and that of the wet land is 127930 hectares. Out of this, an area of 34200 is in the inland wetland and 93730 hectares is in the coastal wetland. With regard to wetlands and the necessity to conserve the same, it is mentioned in para 3 of the statement of objects and reasons that wetlands are some of the most diverse ecosystems on earth as they have both land and aquatic characteristics. Different plant species of a wetland provide habitat for a variety of animal communities. In addition to micro organisms and invertebrates, reptiles are common in wetland. Many amphibians live in wetland during at least part of their life cycle. A large number offish species require wetland habitat for spawning, feeding, or protection from predation. Birds are attracted to wetland by the abundant food resources and sites for nesting, resting and feeding. Inland wetland help control floods by storing water and slowly releasing it to downstream areas after the flood peak. Therefore, the Act is clearly brought to facilitate conservation of paddy and wetlands. The definition of wetland shows that it lies between terrestrial and aquatic systems, where the water table is usually at or near the surface or which is covered by standing water, saturating the soil with water and includes backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers. Therefore, as regards the kole lands in Thrissur District whether it comes under the definition of paddy lands or wetlands cannot be a matter of speculation by any of the authorities since the Act has provided a mechanism under Section 5(4). It is for the Committee to issue a notification after preparing the data bank. The Information Sheet on Ramsar sites concerns with wetland itself, whereas we are confronted with the situation wherein the properties are alleged to be part of kole lands cultivable with paddy land according to the respondents. Of course, going by the averments in the writ petition also, what is purchased is paddy land., partially converted. Therefore, this controversy can be finally settled only if the Committee verifies the nature of the land and comes up with a notification under Section 5(4).
81. Learned Addl. Advocate General relied upon the Public Trust Doctrine in support of the order passed by the District Collector. It is pointed out that it is the responsibility of the Government to protect the eco system to prevent any illegal activities. It is answered by the learned Senior Counsel Shri Damodaran by stating that the said doctrine will only help the preservation of natural resources for the use of the general public and cannot be invoked in a case of dispute regarding the land owned by a private person. The doctrine has been explained by the Apex Court in various decisions. Learned Addl. Advocate General specifically relied upon certain findings by the Apex Court in M.C Mehta v. Kamal Nath ((1997) 1 SCC 388). In para 23 onwards their Lordships discussed the principles evolved relying upon the concept of the doctrine of public trust in ancient times and it was held in para 25 that “the Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the use for private ownership or commercial purposes. In para 31 their Lordships referred to the statement of the trust doctrine by Professor Sax. It was observed by the wellknown author that “thus it seems that the delicate mixture of procedural and substantive protections which the courts have applied in conventional public trust cases would be equally applicable and equally appropriate in controversies involving air pollution, the dissemination of pesticides, the location of rights of way for utilities, and strip mining of wetland filling on private lands in a State where governmental permits are required.” This was relied upon by the learned Addl. Advocate General to contend that the doctrine will apply here. Evidently, their Lordships were considering the question in the light of the lease granted by the Government. Therefore, the matter considered therein was regarding applicability of the doctrine to Governmental property alone.
82. Learned Senior Counsel Shri Damodaran referred to the very same principles stated in the later decision of the Apex Court to contend that the principle will not apply here as it is not a case where the Government's property is being used by a private party. Reliance is placed on M.C Mehta v. Kamal Nath ((1997) 1 SCC 388) and Intellectuals Forum, Tirupathi v. State of A.P ((2006) 3 SCC 549) in this context. In the former decision at page 11 onwards the principles have been discussed. In para 34 it was held that the State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources.
83. Again in Intellectuals Forum, Tirupathi's case ((2006) 3 SCC 549) in para 82 and other paragraphs the same principle has been restated.
84. Evidently, the State and its authorities are acting under the provisions of the Act alone and not with the sole aid of the doctrine of Public Trust. It is not a case where the natural resources vested in the Government were proposed for use by the public. Therefore, the said doctrine cannot apply to the fact situation herein to contend for the position that Ext. P6 order has been passed in the light of the said doctrine. There is no other allegation that petitioner had violated the provisions of any other enactment, concerning ecology.
85. Learned Addl. Advocate General vehemently contended that the writ petition is not maintainable, as the petitioner has got an effective remedy by way of revision under Section 28 of the Act before the Government. It is further pointed out that so long as disputed questions of fact have been raised, this Court will not be justified in going into the said questions.
86. My attention was invited to the various decisions of the Apex Court and this Court in that regard, viz. Titaghur Paper Mills Co-operative Ltd. v. State of Orissa ((1983) 2 SCC 433 : AIR 1983 SC 603), D.L.F Housing Construction (P) Ltd. v. Delhi Municipal Corpn. ((1976) 3 SCC 160), Daljit Singh Jalal (Dead) through Lrs. v. Union of India ((1997) 4 SCC 62). Moron Mar Baselios Marthoma Mathews II v. State of Kerala ((2007) 3 KLT 349 SC), Himmat Sineh v. State of Haryana ((2006) 9 SCC 256), Uttaranchal Forest Development Corpn. v. Jabar Singh ((2007) 2 SCC 112), C.C.T Orissa v. Indian Explosives Ltd. ((2008) 3 SCC 688 : AIR 2008 SC 1631), City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala ((2009) 1 SCC 168), B. Rajagopal v. Jomy Xavier & Another (2010 (2) KHC 196) and Devaki v. B.P.L Group of Companies (2010 (2) KHC 270). Relying upon the decisions in Rajagopal's Case (2010 (2) KHC 196) and Devaki's case (2010 (2) KHC 270) it is pointed out that the power of judicial review cannot be exercised for adjudication of disputed questions of fact. In fact, the legal position is well known that when there is an effective alternative remedy, the writ petition need not be entertained and this Court will not venture into any decision on disputed questions of fact. The same is a settled position of law which will act as a rule of caution. Shri Damodaran, in this context relied upon the following decisions of the Apex Court, viz. Sanjana M. Wig (Ms) v. Hindustan Petroleum Corpn. Ltd. ((2005) 8 SCC 242) and Satwati Deswal v. State of Haryana ((2010) 1 SCC 126), to contend for the position that when the statutory authority has acted without jurisdiction, the writ petition is the only effective remedy. It is further pointed out that when the question of interpretation of various provisions of the Act including the arbitrary and unguided power conferred under Section 13 of the Act has been raised by the petitioner, the petitioner cannot be refused relief by this Court in this proceedings. It is also contended that as evident from the pleadings it is clear that the petitioner has alleged extraneous and political reasons and the interference of higher functionaries of the Government in passing the order and therefore the writ petition is the only remedy.
87. The petitioner has mainly raised want of jurisdiction of the District Collector in the matter. It is pointed out that Section 13 cannot be invoked as the Collector has treated the property as wetland. The petitioner has also canvassed various legal points concerning the interpretation of the provisions of the Act.
88. Apart from that, in the light of the interim orders passed by this Court also, it will not be a proper method to relegate the petitioner to the revisional remedy at this stage. While admitting the writ petition, this Court has passed an order to maintain status-quo with a further direction to not to convert or fill up any portion of the land and not to make any construction. In the later order dated 8.4.2010 this Court allowed the respondents to excavate and remove such amount of mud/sand/redsoil subject to certain other conditions issued by this Court. In the light of the above scenario, as the writ petition was entertained and interim orders have been passed, it cannot be held at this stage that it is not maintainable. Various questions regarding the interpretation of the provisions of the Act have arisen which has to be resolved by this Court.
89. Learned Addl. Advocate General submitted that Exts. P2, P3, P9 and P10 will not help the petitioner as various conditions have been prescribed in the orders issued by the authorities concerned under the Kerala Land Utilisation Order especially that only after obtaining building permit the work should be commenced. Reliance is also placed on Sections 19 and 21 of the Transfer of Property Act governing vested interest and contingent interest. My attention was also drawn to the definition of “holder of 1 and” contained in clause 2(d) of the Kerala Land Utilisation Order. It is contended that a purchaser from the owner will not come within the said definition. In fact, the definition “holder of land” means a person holding any land whether as owner, tenant or otherwise. Evidently, a successor in interest and assignee will also come within the said definition. There is no provision under clause 6 of the Order to recall any order issued under that provision allowing conversion. In the light of the directions which are proposed to be issued, I am not going into the details of such contentions. Shri Damodaran, learned Senior Counsel also relied upon Ext. P30 order passed by the Government dated 28.1.2002 for construction of residential buildings in Sy. Nos. 309, 311, 312 and 313 of Koorkanchery village and that is also subject to certain conditions.
90. The District Collector, while passing Ext. P6 order, as already noticed, has found that the property is a wet land being kole land and it has to be preserved. In the light of the various disputes that have arisen, it is only proper that the basic nature and other details with regard to the properties are assessed by the Committee under Section 5(4). It is submitted by the learned Addl. Advocate General that the preliminary notification appointing the Committee and the other procedures have already been gone into and the details have been produced along with I.A No. 15399/2010 as Annexure E. The matter will have to be gone into afresh by the District Collector especially in the light of the interpretation of the provisions of the Act herein and by the various decisions of this Court in Jayakrishnan's case (2009 (1) KLT 123) and Praveen's case (2010 (2) KHC 617) and other decisions. The fact situation has to be ascertained after the data bank is prepared and notified by the Committee.
91. Some other questions have also be gone into in the light of the factual position emerging. Whether conversion extends to puramboke land as contended by the learned Additional Advocate General and the entitlement of the petitioner for the conversion of land in Sy. No. 313 Now that proceedings are pending under the Kerala Land Reforms Act with regard to the alleged possession of the area in excess of the ceiling area, those proceedings will have to be finalised before final order is passed in the matter. They will have a bearing on the right to hold the entire extent purchased.
92. Serious disputes have been raised whether the area is a kole land at all. Herein, learned Addl. Advocate General submitted that it is part of “Chandipuly padasekharan” and various documents have been produced to show the same. It is pointed out that nearby properties are under cultivation. The documents produced along with the counter affidavit are relied upon to show that paddy cultivation is there in the nearby properties also. This is disputed by the learned Senior Counsel for the petitioner by submitting that the petitioner has obtained a reply under the Right to Information Act as per Ext. P18 that there is no kole land in “Chandipuly Padasekharam”. Exts. P19 and P22 mahazars of the year 1994 prepared on the application of the vendor seeking conversion indicates that property in Ext. P1 was not being cultivated then. I am not going into the said controversy herein, since this is a matter which has to be considered by the Committee under Section 5(4) of the Act even though various documents have been relied upon by both sides to show either way. Since the petitioner maintains that there is no cultivation in and around the locality to an extent upto 3 km. from the property in question and by the respondents that all nearby properties are under cultivation, it has to be gone into by the Committee under Section 5(4). Therefore, I refrain from rendering any finding on that aspect.
93. The writ petition is therefore allowed. Ext. P6 is quashed. Fresh orders will be passed in the matter after hearing the petitioner and after finalising various actions as directed above, and after complying with the following directions:
(i) The District Collector will take steps to finalise the appointment of the Local Level Monitoring Committee as enjoined under Section 5
(4) of the Act as a first step in the matter, if not already done. After the appointment of the Committee, they will prepare the data bank as provided under Section 5(4) of the Act and notify it under Rule 4(2)
(b) of the Rules.
(ii) The proceedings under the Kerala Land Reforms Act will be finalised expeditiously after giving proper opportunities for hearing to the petitioner.
(iii) The petitioner will be allowed to adduce further evidence in the matter after all the above procedures are over. Depending upon the notification issued under Section 5(4) of the Act read with Rule 4(2) of the Rules, the District Collector will evaluate the effect of the orders passed under the Kerala Land Utilisation Order and find out whether the petitioner is entitled for such conversion on the basis of the details furnished and after satisfying whether other conditions in the orders Exts. P2, P3, P9 and P10 have been fulfilled.
(iv) In terms of the interim order dated 8.4.2010 much quantity of mud and waste have been removed already and going by the interim report dated 2.9.2010.6388 lorry loads of mud have been removed till 11.6.2010 It is mentioned that proper accounts have been maintained by the Tahsildar with respect to the removal of mud and waste as directed by this Court. In the light of the directions issued as above, status-quo as regards the properties will be maintained as on today, as fresh orders will have to be passed.
94. The writ petition is disposed of as above. No costs.
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