Harilal, J.
Briefly put the facts of the case is as follows. The petitioners are the husband and the wife and they are Non Resident Indians. They, along with their son Prakash Abraham, are in the ownership and possession of 1.55.40 Hectares of land in Survey No. 381/2 of Kuttapuzha Village. The aforementioned property was originally a paddy field, but it was remaining uncultivable for many years. The adjacent properties are also remaining uncultivable. In these circumstances, the petitioners along with their son applied to the Revenue Divisional Officer, Thiruvalla, for permission to reclaim the said property so as to cultivate coconut tree saplings. The Revenue Divisional Officer has called for the reports from the Tahsildar and the Principal Agricultural Officer. It was reported that the properties are remaining uncultivable and there is no cultivation since 1994. It was also reported that due to water logging, paddy cultivation is impossible. Ext.P1 is the report of the Principal Agricultural Officer. Pursuant to the reports of the Tahsildar and the Principal Agricultural Officer, the Revenue Divisional Officer, Thiruvalla, has accorded sanction to the petitioners to reclaim the property subject to certain conditions. Ext.P2 is the order dated 28.05.1997 granting permission to cultivate coconut tree saplings after reclaiming the property. Pursuant to Ext.P2 order, the petitioners reclaimed the property and cultivated the same with coconut tree saplings.
2. While so, the 1st petitioner was afflicted with renal failure and both of his kidneys became defunct. Thereafter, he was under constant dialysis abroad and was unable to look after his cultivation. Subsequently, he underwent kidney transplantation and regained health to a reasonable extent. But, in the meantime, due to the above said ailment of the 1st petitioner, they could not look after the cultivation properly. The petitioners and their son were in U.S.A. for a long period. Hence almost all saplings and trees were ruined and remaining few saplings also became unworthy. Therefore, the petitioners decided to improve the property with fresh coconut tree saplings. The petitioners came down to India on 17.04.2012 and started replanting process. While so, on 26.04.2012 at about 10 A.M., a group of people, claimed to be activists of a left- oriented political party, led by the respondents 6 and 7 trespassed into the aforementioned property and obstructed the workers of the petitioners. The workers were told that they will be done away with in the event of they continuing with the coconut palm cultivation. Respondents 6 and 7 abused the petitioners over the telephone and threatened that if any attempt is made to continue the cultivation, dire consequences will have to be suffered. Ext.P3 is the complaint submitted before respondents 2 to 5 seeking police protection to coconut palm cultivation. But no action had been taken so far on Ext.P3.
3. It was also submitted that in the year 2010, there was an attempt to encroach the property for community cultivation. Hence, the petitioners had approached this Court against the encroachment of property for community cultivation. This Court directed the Revenue Divisional Officer, Thiruvalla, to consider the matter afresh after affording an opportunity of being heard to the petitioners. After hearing the parties, the Revenue Divisional Officer, Thiruvalla, passed Ext.P4 order dated 25/10/2010 granting permission to cultivate coconut tree saplings after reclamation of the property subject to the conditions specified in Ext.P2 order. Hence, the petitioners filed this writ petition with the following prayers:
“a) issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 to 5 to render adequate, effective and meaningful protection to the petitioners and their labourers so as to enable them to cultivate their property covered by Ext.P2 with coconut tree saplings and also for the maintenance of the same; and b) pass such other orders as this Honourable Court may deem fit and proper in the facts and circumstances of the case.”
4. The 6th and 7th respondents claiming themselves as leaders of C.I.T.U. and Kerala State Karshaka Thozhilali Union, filed a counter affidavit jointly denying the allegations in the writ petition. They contended that the property owned by the petitioners is a paddy field having an extent of 1.55.40 Hectares. Petitioners' paddy field is a part of 'Kaviyoor Puncha' having an extent of 750 Acres of paddy fields. 'Kaviyoor Puncha' exists in Thiruvalla Municipality, Kaviyoor Panchayath and Kunnamthanam Panchayath. 500 Acres of paddy field is situated in Thiruvalla Municipality and remaining 250 Acres is in Kaviyoor and Kunnamthanam Panchayaths. Petitioners' paddy field is situated in Thiruvalla Municipality. Petitioners' property is described as 'paddy field' in Data Bank prepared by the Thiruvalla Municipality as per Section 5(4)(i) of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and physically situated as a cultivatable paddy land. Thiruvalla Municipality has taken earnest efforts to cultivate the paddy field in Kaviyoor Puncha and paddy cultivation is increased substantially for the last three years in Kaviyoor Puncha. The petitioners' and some other paddy land owners did not care to cultivate the paddy fields even after the continuous requests of the Localbody Authorities and the Agricultural Officers. After the commencement of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, as per Section 3(1) of the Act, the petitioners are not entitled to convert the paddy fields owned by them, except in accordance with provisions of the said Act. Under the guise of filing this writ petition, the petitioners are trying to reclaim their paddy fields, violating the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. Therefore, due to the lack of permission under the Kerala Conservation of Paddy Land and Wet Land Act, 2008, this writ petition is liable to be dismissed.
5. The petitioners filed a reply affidavit disputing the contentions raised in the counter affidavit and contended that the petitioners have already reclaimed the erstwhile paddy field and cultivating the same with coconut tree saplings, pursuant to Ext.P2. The petitioners are not aware of the description of the property as 'paddy field' in the Data Bank. If at all such an entry is there, it is incorrect and made without verification and it is not binding on the petitioners. The averments that cultivation in Kaviyoor Puncha has increased is not correct. Since the reclamation of the erstwhile paddy field has been effected, according to Ext.P2 as early in 1997, the Kerala Conservation of Paddy Land and Wet Land Act is not applicable to the petitioners. An earlier attempt to encroach the property and make cultivation was challenged before this Court in W.P.(C) No.37379/2009 and the dispute was culminated in Ext.P4 order of the Sub Collector, Thiruvalla, dated 25/10/2010. The parties are bound to obey the permission granted for cultivation of coconut trees, by virtue of Ext.P4.
6. We heard Shri.P.Haridas, the learned counsel for the petitioners, Shri.T.P.Pradeep, the learned counsel for the respondents 6 and 7 and Shri.C.R. Syamkumar, the learned Government Pleader.
7. The learned counsel for the petitioners submitted that Ext.P1 has become final and no one has challenged it hitherto. Further, Ext.P1 was again reconsidered, pursuant to the direction of this Court in WP(C) No.37379/2009 and got upheld by the competent authority under law by Ext.P4. No appeal has been filed by the contesting respondents or anybody else. Therefore, in view of the vested right accrued in favour of the petitioners by virtue of the Kerala Land Utilisation Order, in exercise of the provisions under the Kerala Police Act, the respondents 2 to 5 ought to have granted police protection to convert the land for planting coconut saplings. The learned counsel for the petitioners cited the decisions laid down in 2011(1)KLT 256; 2010
(3)KLT 67; 2010 (2) KLT 617; 2009 KHC 6046 and
1980 (1) SCC 149 and argued that the Conservation of Paddy Land and Wet Land Act 2008 neither nullifies the Land Utilisation Order nor makes it inoperative. The Conservation of Paddy Land and Wet Land Act 2008 has prospective effect only.
8. Per contra, the learned counsel for the respondent 6 and 7 submitted that the property covered by Ext.P2 is a paddy land which forms part of a large extent of paddy field known as 'Kaviyoor Puncha' having an extent of 750 Acres. Though the Municipality has taken earnest efforts to cultivate paddy, the petitioners did not care to cultivate their paddy field. Ext.P1 is invalid and inoperative in view of the conservation of the Paddy Land and Wet Land Act 2008 and the petitioners have to obtain permission under the above said Act. Therefore, the writ petition is devoid of merits and liable to be dismissed.
9. In view of the rival contentions, the first question to be considered is whether Ext.P2 is invalid or inoperative by the commencement of the Conservation of Paddy Land and Wet Land Act 2008. To put it differently, the question is whether a permission under the Kerala Conservation of Paddy Land and Wet Land Act is required to convert the property covered under Ext.P2, so as to cultivate coconut tree saplings.
10. The Kerala Land Utilisation Order is issued in exercise of the powers conferred by Sub Section (1)and Clause (b) of Sub Section (2) of Section 3 of the Essential Commodities Act which is in force now. Section 6 of the said Act contains a provision with regard to the effect of the orders inconsistent with other enactment. According to Section 6, any order made under Section 3 shall have effect notwithstanding anything inconsistent there with contained in any enactment other than this Act. The questions 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 Conservation of Paddy Land and Wet Land Act was elaborately considered the decision in K.P.D.C. Ltd. Vs. State of Kerala (2011(1) Kerala 526). In the above decision, the learned Judge analysed the question on the premise that in the Conservation of Paddy Land and Wet Land Act, there is no provision either repealing the Land Utilisation Order or providing retrospectively to the enactment. The learned Judge mainly relied on the decisions in Praveen Vs. Land Revenue Commissioner (2010(2)KLT 617), Travancore Rayons Ltd. Vs.Kerala State Pollution Control Board (2000(1)KLT 175), Ambalal Sarabhai Enterprises Ltd. Vs. Amritlal & Company (2001(8)SCC 397), M.S. Sivananda Vs. Karnataka S.R.T.C. (1980(1)SCC 149), Bansidhar Vs. State of Rajasthan (1989(2)SCC,557), K.S.Paripoornan Vs. State of Kerala (1994(2)KLT
763) and Section 6 of the General Clauses Act. Relevant
para in Praveen Vs. Land Revenue Commissioner (2010(2)KLT 617) is as follows:
“We may, however, notice that except in the case of paddy land and wet land, the provisions contained in the Land Utilisation Order still survives in respect of the other food crops. As we have noticed, as per the definition “food crops” under the Land Utilisation 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 confined its application to paddy land and wet land, restriction imposed under the Land Utilisation Order under Cl.(6) thereof in respect of other food crop will have continued operation and such conversion or attempt of conversion or utilise or attempt to utilise such land other than paddy land or wet land will continued to be governed by the provisions contained in the Land Utilisation Order and such application for permission has to be moved before appropriate 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).”
Paras 28 to 31 in K.P.D.C. (Pvt.) Ltd. Vs. State of Kerala [(2011(1) KLT 526] are extracted below:
“28. The Act is not retrospective in operation, evidently. There is no provision in the Act which nullifies the orders issued under the Kerala Land Utilisation Order. In fact, even in a case of repeal the effect of such repeal will have to be understood in the light of the provisions of the General Clauses Act. The question is no longer res integra. Going by S.6 (c) of the General Clauses Act, 1897, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed unless a different intention appears.
29. The Apex Court in Ambalal Sarabhai Enterprises Ltd.'s case ((2001) 8 SCC 397), relied upon the earlier decision of the Apex Court in M.S.Sivananda v. Karnataka S.R.T.C. ((1980) 1 SCC 149). In para 30 of the judgment, the principle has been delineated. For the applicability of S.6 of the General Clauses Act, there will be a right acquired or accrued and it should not be a mere 'hope or expectation'. The Apex Court therein further relied upon another decision of a Constitution Bench of the Apex Court in Bansidhar v. State of Rajasthan ((1989) 2 SCC 557) wherein, in para 30 it was held thus:
“For purposes of these clauses the 'right' must be 'accrued' and not merely an inchoate one. The distinction between what is and what is not a right preserved by S.6 of the General Clauses Act, it is said, is often one of great fineness. What is unaffected by the repeal is a right 'acquired' or 'accrued' under the repealed statute and not ' a mere hope or expectation' of acquiring a right or liberty to apply for a right”.
It is stated that what is unaffected by the repeal is a right 'acquired' or 'accrued' under the repealed statute and not 'a mere hope or expectation' of acquiring a right or liberty to apply for a right. In para 33, their Lordships again relied upon para 12 of the judgment in M.S.Shivananda's case ((1980) 1 SCC 149) which is to the following effect:
“If, however, the right created by the statute is of an enduring character and has vested in the person that right cannot be taken away because the statute by which it was created has expired. In order to see whether the rights and liabilities under the repealed Ordinance have been put to an end by the Act, the line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities under the repealed Ordinance but whether it manifests an intention to destroy them. Another line of approach may be to see as to how far the new Act is retrospective in operation.”
Therefore, the true question is whether the new enactment manifests the intention to destroy the rights and liabilities under the Kerala Land Utilisation Order. Evidently, under the Act 28 of 2008 no such provision is there.
30. x x x x x x x x x x x x x x x
31. ............................................................
................................................. ...........................
............................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.”
This Court also held as follows:
“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 description of properties in revenue records will not be conclusive. 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. Going by S.6(c) of the General Clauses Act 1897, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed unless a different intention appears. 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. 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”.
11. We also concur with the above view taken by the learned Single Judge and hold that Ext.P2 is valid and operative as the Conservation of Paddy Land and Wet Land Act does not nullify Ext.P2 order passed under Kerala Land Utilisation Order and it is in force after the commencement of the said new Act. That apart pursuant to the direction of this Court in WP(C) No.37379/2009, the Sub Collector, Thiruvalla, has considered the validity of P2 order after hearing the parties and upheld the validity of Ext.P2 order by Ext.P4 order. Nobody has challenged Ext.P2 so far.
12. The next question to be considered is what is the nature and lie of the land at present? Is it a paddy land as defined in Section 2(xii) of the Conservation of Paddy Land and Wet Land Act ? This is a factual dispute which is to be determined on the basis of the materials available on record. Section 2(xii) of the Conservation of Paddy Land and Wet Land Act is extracted below:
“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;
13. In Jayakrishnan Vs. District Collector (2009
(1) KLT 123), it was held that it is for the competent authority to enquire as to whether it is a paddy land or wet land and if on enquiry it is found that the land is not a paddy land or wet land, the authority is competent under the provision of the Land Utilisation Order to deal with the same. In Shahanaz Shukkoor Vs. Chelannur Grama Panchayat (2009(3)KLT 899), it was observed that the definition of the term 'paddy land' and 'wet land' in the 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. It was also held therein that mere description of an item of property as 'Nilam' or 'paddy field' in the revenue records is insufficient to
assume that the land cannot be used for any purpose other than that which 'paddy field' or 'wet land' can be used, whereas the decision in Haji Abubacker Vs. Revenue Divisional Officer, Palakkad (2009(4)KLT 49), the learned Judge of this Court has taken a different view and held that after coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, no order can be passed on an application under the Kerala Land Utilisation Order. On the premise of conflicting views, the matter was referred to a Division Bench of this Court in Praveen Vs. Land Revenue Commissioner (2010(2) KLT617) and the Division Bench of this Court concurred with the decision laid down in Shahanaz Shukkoor Vs. Chelannur Grama Panchayath (2009(3)KLT 899) and held that it is for the competent authority to enquire as to whether it is a paddy land or wet land and if it is found that the land is not a paddy land or wet land, the authority is competent under the provisions of Kerala Land Utilisation Order to deal with the same. The Division Bench further observed that there is no conflict between (2009(1)KLT 123) and (2009(3) KLT 899).
14. Let us analyse the nature of the land in the instant case, in view of the definition and the decision rendered by the Division Bench of this Court and referred above.
15. Ext.P1 is a report sent by the Principal Agricultural Officer, Pathanamthitta, to the R.D.O., Thiruvalla, recommending reclamation of property covered by Ext.P1 so as to cultivate coconut tree saplings. It is pertinent to note that, in Ext.P1 the Commissioner has stated that on inspection, it was found that no paddy cultivation had been made in the property since 1994 due to the lack of irrigation facility and in that circumstance, paddy cultivation is not feasible. Ext.P2 is the order dated 28.05.1997 granting permission to convert the land covered by Ext.P2 by reclamation so as to cultivate coconut tree saplings. This order refers to rely on a report made by the Tahsildar, after local inspection, stating that the property lies as an uncultivated land due to water logging and paddy cultivation is not feasible. Further, it refers to Ext.P1 report made by the Agricultural Officer. At last, the R.D.O. states that the facts stated in the above reports are found true and satisfactory on local inspection. But permission is seen granted on condition that reclamation shall not cause any obstruction to the free flow of water streams and shall not cause any adverse impact over the adjacent lands.
16. Ext.P4 is the order passed by Sub Collector, Thiruvalla dated 25.10.2010, pursuant to the direction of this Court in WP(C).No.37379/2009. It shows that when the Agricultural Officer has taken steps to enforce the agricultural operation on the property, the petitioners have approached this Court and obtained an order directing the Sub Collector to take steps to enforce cultivation after affording an opportunity of being heard. By this order, the Sub Collector upheld Ext.P2 order after affording an opportunity of being heard and permitted the petitioners to cultivate coconut tree saplings, after conversion of the land.
17. On an analysis of Exts.P1,P2 and P4, obviously it could be seen that the present lie of the property is not suitable for paddy cultivation. Moreover, there was no paddy cultivation in this property since 1994 due to the lack of irrigation facilities. Therefore, we find that the property covered by Ext.P2 does not satisfy the statutory requirements to constitute 'paddy land' defined in Section 2(xii) of the Conservation of Paddy Land and Wet Land Act.
18. We also concur with the views expressed in the decisions discussed above. What is discernible from the definition of 'paddy land' is that the statutory requirement to constitute 'paddy land' is,
(i) it must be a land where paddy is cultivated, at least, once in a year, or
(ii) the land must be suitable for paddy cultivation; but uncultivated and left fallow. Thus, the actual present lie of the land is decisive in the determination of the question whether the land is a paddy land or garden land.
19. We directed the learned Government Pleader to get instructions as to the present lie of the property and the adjacent properties. The learned Government Pleader submitted that there is no paddy cultivation in this property and adjacent properties since the last so many years. Therefore, in view of the concurring views of the competent authorities to the effect that this land is not suitable for paddy cultivation, we are not inclined to take a different view as contended by the respondents 6 and 7. In view of the above legal as well as factual scenario, we are inclined to grant police protection to convert the property for cultivating coconut tree saplings strictly in accordance with the conditions laid down in Ext.P2. But police protection shall not be given to reclaim the property for any purpose other than coconut palm cultivation.
20. Consequently, we direct the respondents 2 to 5 to render adequate, effective and meaningful police protection to the petitioners and their labourers so as to enable them to cultivate their property, covered by Ext.P2, with coconut tree saplings and also to maintain the same.
In the result, this writ petition is allowed.
Sd/-
V.K. MOHANAN, JUDGE
Sd/- K.HARILAL, JUDGE
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//true copy// P.S. to Judge