In respect of paddy land which was converted prior to the enactment of the Act 28 of 2008 no permission is required in terms of clause 6 of Kerala Land Utilisation Order, 1967
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Contents

  1. 1 Clause 6 of the Kerala Land Utilisation Order, 1967 
    1. 1.1 The converted land in these writ petitions are referable to paddy land which was converted before the enactment of the Act 28 of 2008 and not included in the data bank under the Act 28 of 2008 as paddy land.
      1. 1.1.1 2. The land in all these writ petitions were converted before the Act 28 of 2008. In the data bank prepared under the Act 28 of 2008, these lands are described as converted paddy land. The Collector refused to grant permission to the holder of the land for utilising the land for other purposes for the reason that the land owners converted land illegally without permission and any permission cannot ratify illegality.
      2. 1.1.2 3. KLUO is a subordinate legislation issued by the Government of Kerala with prior approval of the Central Government in terms of 
  2. 2 Section 3(2)(1)(b) of the Essential Commodities Act, 1955 
    1. 2.1 Section 3(2)(1)(b) of the EC Act provides as follows: 
      1. 2.1.1 "(b) For bringing under cultivation any waste or arable land whether appurtenant to a building or not for the growing thereon of food-crops generally or of specified food- crops, and for otherwise maintaining or increasing the cultivation of food-crops generally, or of specified food-crops." 
    2. 2.2 4. The scheme of KLUO is to sustain production and distribution of food crops mentioned therein. Clause 2(b) of KLUO defines food crops as follows: 
      1. 2.2.1 "'Food Crops' includes paddy, fish, sugarcane, vegetables, tapioca, yam, tea, coffee, cardamom, pepper, groundnut, cocoa and banana plantain." 
      2. 2.2.2 5. Clauses 3 and 4 of the above order confer the State Government and the Collector respectively to exercise their power to direct land holders to cultivate the land with food crops. These powers which are referable to Clauses 3 and 4 indicate that the provisions are only enabling provisions to secure the objectives of the Section 3 of the EC Act.
      3. 2.2.3 6. Clause 6 of KLUO prohibits conversion of land which has been under cultivation with any food crops for a continuous period of three years immediately before the commencement of the above order or after the commencement of the order, except with the written permission given by the Collector. In this case, the issue pertains to grant of written permission by the Collector in terms of clause 6 of KLUO.
      4. 2.2.4 7. The question is whether converted paddy land do require a written permission from the Collector in terms of clause 6. Clause 7 of the above order empowers the Collector to call upon the holder of the land to cultivate such land with those food crops which were under cultivation in the land as referred in clause 6 of KLUO. Therefore, if any person converts a paddy land without permission as stipulated in Clause 6 of KLUO, the Collector has the power to call upon such person to cultivate paddy.
  3. 3 Kerala Conservation of Paddy Land and Wetland Act, 2008 
    1. 3.1 This enactment is to conserve the paddy land and wetland and to restrict the conversion or reclamation thereof, in order to promote the agricultural sector and to sustain the ecological system. 
    2. 3.2 Praveen Vs. Land Revenue Commissioner [2010 (2) KLT 617] 
      1. 3.2.1 held that except in the case of paddy land and wetland, the provisions contained in Land Utilisation Order would survive in respect of the other food crops. Therefore, regulation in relation to paddy will have to be dealt with in accordance with the provisions of the Act 28 of 2008.
      2. 3.2.2 9. Act 28 of 2008 contemplates preparation of data bank. This has to be prepared by the Local Level Monitoring Committee constituted under the Act 28 of 2008. The duty of the Committee is to prepare the data bank with the details of the cultivable paddy land and wetland within the jurisdiction of the committee. Section 11 of the Act 28 of 2008 prohibits reclamation of wetland. Section 12 of the Act 28 of 2008 provides Authorised Officers and their powers in case any paddy land is converted in contravention of the provisions of the Act. The District Collector in terms of the Section 13 has also power to restrict reclamation of any paddy land and wetland. The scheme of the power shows the manner in which paddy land has to be identified and the powers of the authorities to restore the land when conversion of the land is found out. 
      3. 3.2.3 10. However, the question that arises in these cases is when a paddy land has been converted before the Act 28 of 2008 and is not included in the data bank as a paddy land, whether land holder requires any permission in terms of clause 6 of KLUO to utilise such converted paddy land.
      4. 3.2.4 11. As has been noted under clause 7 of KLUO, the power of the Collector is to direct the holder of land to cultivate those food crops which were under cultivation of the land. After the Act 28 of 2008, the Collector under clause 7 of KLUO has no power to call upon the holder of the land to cultivate paddy in the land which is no longer a paddy land in terms of Act 28 of 2008. There is no provision in KLUO to enable the Collector to compel a person to cultivate any other food crops other than the food crops which were under cultivation. It is to be noted that the provisions under KLUO as noted above are only enabling provisions to secure the objectives of Section 3 of the EC Act. The power being exercised by the Collector under KLUO is only in relation to control production and distribution of food crops. The provisions under KLUO are not a fetter or imposition of a burden on the land. The source of legislation, as referable under the Constitution, clearly indicates that these powers are to be exercised as enabling provisions to secure objectives of Section 3 of the EC Act.
      5. 3.2.5 12. When land was converted without obtaining permission, necessarily, the Collector ought to have exercised his power under Clause 7 of KLUO at the relevant point of time. Having failed to invoke the enabling power to prevent conversion, same power cannot be exercised as though a fetter is placed on land to prevent use of land for other purposes. The objective of the EC Act is only to secure production and distribution of food crops. The permission under Clause 6 would arise only when land is used for cultivation of food crops. The permission under this clause is not to unbind any burden on the land as noted above. The power vested with the Collector is to compel the holder of the land to use the land for cultivation. The mode of exercise of this power is referred in Clause 7. This power is to direct holder of the land to cultivate food crops which were in cultivation. If the paddy was in cultivation, the power can be exercised only to compel cultivation of paddy alone and not other food crops. When land becomes uncultivable for the paddy, the enabling power will become otiose. Law does not compel a person to do that which he cannot possibly perform - Lex non cogit ad impossibilia. Impossibility also excuses a person from doing what is required by law - Impotentia excusat legem. 
    3. 3.3 Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530 
      1. 3.3.1 "70. The maxim "lex non cogit ad impossibilia", like all maxims, only tells us that law does not contemplate something which cannot be done. The maxim applies, insofar as persuading the court to hold that it is impossible to send a company to prison. The maxim by itself does not empower the court to break up the section into convenient parts and apply them selectively. Nor does the maxim "impotentia excusat legem" apply here for the same reason. Au contraire, the application of these two maxims could equally persuade the court to ignore the language of the statutory provision in the case of a juristic person, there being no warrant for dissecting the section and treating only one part as capable of implementation when the mandate of the section is to impose the whole of the prescribed punishment." 
    4. 3.4 Aishabeevi v.Superintendent of Police [2014 (3) KLT 1078] 
      1. 3.4.1 held that there is no provision in the land utilisation order that any paddy land which was converted continued to be presumed as an illegally converted land. Thus, in the light of the discussion as above, when the land has become unfit to produce paddy, the Collector cannot compel the land owner to cultivate paddy. The holder of land is free to use the land in accordance with law. Thus, I hold that in respect of paddy land which was converted prior to the enactment of the Act 28 of 2008 no permission is required in terms of clause 6 of KLUO.
      2. 3.4.2 13. Before parting with the judgment, this Court hastened to state certain gloomy facets of uncontrolled use of agricultural land for other purposes. Land management is the key to modern governance of a State. Food security stems from land use and proper management of land. The food security and land use are the paramount interest to be addressed by any responsible State.
      3. 3.4.3 14. The report of the World Bank would indicate that by the year 2050, the World needs 50% more food to feed 9 billion people. Boosting agricultural production or investing in agricultural activities is essential for food security. Any neglect in the use of land to sustain food production would negative achievements in any other segments in the State. The State has sufficient power under Entry 18 of List II of the Seventh Schedule of the Constitution to control right in or over land, transfer, alienation of agricultural land etc. The National Food Security Act, 2013 is a Central Enactment meant for distribution of food stuffs to the underprivileged or any other citizen. It is more related to the distribution of food. The production of food is also related to the State subject. KLUO, though, was issued to sustain food production, nevertheless, it was issued in the wake of shortage of food and famine. KLUO in the present form is archaic, antiquated and not suited to the current time to sustain agricultural landscape. The scheme KLUO as has been pointed out would operate only as an enabling power to sustain production and not to control or regulate rights in or over the land. It is, therefore, imperative for the State to come out with the provisions to control interest in the right of agricultural land and sustain agricultural growth to generate food crops and to assure food security. The growing need of the world and depleting agricultural landscape is alarming. Act 28 of 2008 is a piece of legislation to bolster paddy cultivation and it is more to do with the biodiversity and ecology. However, in relation to other food crops other than paddy, the State lacks legislation to compel the holder of the land to produce food crops. One reason attributable to tardy agricultural growth is fragmentation of agricultural landscapes and the costs involved in cultivation in small holdings, which are less productive and non profitable. Measures should be taken in terms of the Kerala Land Reforms Act, 1963 to do away with ceiling area for agricultural land. Agricultural land in modern day has to be run like an industry. Therefore, it is for the State to come out with the legislations to secure the agricultural landscapes of the State. Any attempt to fill vacuum by a subordinate legislation like KLUO is nothing but deplorable.
      4. 3.4.4 15. The writ petitions are disposed of holding that the petitioners are free to utilise the paddy land which is converted prior to the enactment of the Act 28 of 2008 for any other purposes without the permission of the Collector in accordance with law. No costs.

(2015) 400 KLW 489

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE 

TUESDAY, THE 24TH DAY OF FEBRUARY 2015/5TH PHALGUNA, 1936 

W.P.(C).Nos.29182, 30316 & 33289 of 2014

PETITIONER

ARCHANA VARGHESE

BY ADVS.SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) 

RESPONDENT

THE DISTRICT COLLECTOR, PATHANAMTHITTA - 689 645. 

BY SENIOR GOVERNMENT PLEADERSRI.K.C. VINCENT

J U D G M E N T

The issue in these writ petitions is with regard to the permission to be obtained under 

Clause 6 of the Kerala Land Utilisation Order, 1967 

(for short, the "KLUO") for utilising converted paddy land before the Act 28 of 2008 for other purposes. 

The converted land in these writ petitions are referable to paddy land which was converted before the enactment of the Act 28 of 2008 and not included in the data bank under the Act 28 of 2008 as paddy land.

2. The land in all these writ petitions were converted before the Act 28 of 2008. In the data bank prepared under the Act 28 of 2008, these lands are described as converted paddy land. The Collector refused to grant permission to the holder of the land for utilising the land for other purposes for the reason that the land owners converted land illegally without permission and any permission cannot ratify illegality.

3. KLUO is a subordinate legislation issued by the Government of Kerala with prior approval of the Central Government in terms of 

Section 3(2)(1)(b) of the Essential Commodities Act, 1955 

(for short, the "EC Act). 

Section 3(2)(1)(b) of the EC Act provides as follows: 

"(b) For bringing under cultivation any waste or arable land whether appurtenant to a building or not for the growing thereon of food-crops generally or of specified food- crops, and for otherwise maintaining or increasing the cultivation of food-crops generally, or of specified food-crops." 

The power stipulated in the above provision is to control production, supply, distribution, etc. of essential commodities by the Central Government. The source of legislative power on Parliament to enact EC Act is referable to Entry 33 of the Concurrent list. Entry 33 of List III in the Seventh Schedule to the Constitution is in relation to trade and commerce, and the production and supply of distribution of, oil, textile, food stuffs, products of Industry etc. By S.R.O. No.3950 dated 09/12/1957, the Central Government delegated the powers conferred upon the Central Government in terms of Section 3(1) of the EC Act to be exercised by the State Government of Kerala on condition that no order shall be issued without the prior approval of the Central Government. By virtue of the above order, the Government of Kerala with prior approval of the Central Government issued KLUO.

4. The scheme of KLUO is to sustain production and distribution of food crops mentioned therein. Clause 2(b) of KLUO defines food crops as follows: 

"'Food Crops' includes paddy, fish, sugarcane, vegetables, tapioca, yam, tea, coffee, cardamom, pepper, groundnut, cocoa and banana plantain." 

5. Clauses 3 and 4 of the above order confer the State Government and the Collector respectively to exercise their power to direct land holders to cultivate the land with food crops. These powers which are referable to Clauses 3 and 4 indicate that the provisions are only enabling provisions to secure the objectives of the Section 3 of the EC Act.

6. Clause 6 of KLUO prohibits conversion of land which has been under cultivation with any food crops for a continuous period of three years immediately before the commencement of the above order or after the commencement of the order, except with the written permission given by the Collector. In this case, the issue pertains to grant of written permission by the Collector in terms of clause 6 of KLUO.

7. The question is whether converted paddy land do require a written permission from the Collector in terms of clause 6. Clause 7 of the above order empowers the Collector to call upon the holder of the land to cultivate such land with those food crops which were under cultivation in the land as referred in clause 6 of KLUO. Therefore, if any person converts a paddy land without permission as stipulated in Clause 6 of KLUO, the Collector has the power to call upon such person to cultivate paddy.

8. The State of Kerala enacted 

Kerala Conservation of Paddy Land and Wetland Act, 2008 

(Act 28 of 2008). 

This enactment is to conserve the paddy land and wetland and to restrict the conversion or reclamation thereof, in order to promote the agricultural sector and to sustain the ecological system. 

The Division Bench of this court in 

Praveen Vs. Land Revenue Commissioner [2010 (2) KLT 617] 

held that except in the case of paddy land and wetland, the provisions contained in Land Utilisation Order would survive in respect of the other food crops. Therefore, regulation in relation to paddy will have to be dealt with in accordance with the provisions of the Act 28 of 2008.

9. Act 28 of 2008 contemplates preparation of data bank. This has to be prepared by the Local Level Monitoring Committee constituted under the Act 28 of 2008. The duty of the Committee is to prepare the data bank with the details of the cultivable paddy land and wetland within the jurisdiction of the committee. Section 11 of the Act 28 of 2008 prohibits reclamation of wetland. Section 12 of the Act 28 of 2008 provides Authorised Officers and their powers in case any paddy land is converted in contravention of the provisions of the Act. The District Collector in terms of the Section 13 has also power to restrict reclamation of any paddy land and wetland. The scheme of the power shows the manner in which paddy land has to be identified and the powers of the authorities to restore the land when conversion of the land is found out. 

10. However, the question that arises in these cases is when a paddy land has been converted before the Act 28 of 2008 and is not included in the data bank as a paddy land, whether land holder requires any permission in terms of clause 6 of KLUO to utilise such converted paddy land.

11. As has been noted under clause 7 of KLUO, the power of the Collector is to direct the holder of land to cultivate those food crops which were under cultivation of the land. After the Act 28 of 2008, the Collector under clause 7 of KLUO has no power to call upon the holder of the land to cultivate paddy in the land which is no longer a paddy land in terms of Act 28 of 2008. There is no provision in KLUO to enable the Collector to compel a person to cultivate any other food crops other than the food crops which were under cultivation. It is to be noted that the provisions under KLUO as noted above are only enabling provisions to secure the objectives of Section 3 of the EC Act. The power being exercised by the Collector under KLUO is only in relation to control production and distribution of food crops. The provisions under KLUO are not a fetter or imposition of a burden on the land. The source of legislation, as referable under the Constitution, clearly indicates that these powers are to be exercised as enabling provisions to secure objectives of Section 3 of the EC Act.

12. When land was converted without obtaining permission, necessarily, the Collector ought to have exercised his power under Clause 7 of KLUO at the relevant point of time. Having failed to invoke the enabling power to prevent conversion, same power cannot be exercised as though a fetter is placed on land to prevent use of land for other purposes. The objective of the EC Act is only to secure production and distribution of food crops. The permission under Clause 6 would arise only when land is used for cultivation of food crops. The permission under this clause is not to unbind any burden on the land as noted above. The power vested with the Collector is to compel the holder of the land to use the land for cultivation. The mode of exercise of this power is referred in Clause 7. This power is to direct holder of the land to cultivate food crops which were in cultivation. If the paddy was in cultivation, the power can be exercised only to compel cultivation of paddy alone and not other food crops. When land becomes uncultivable for the paddy, the enabling power will become otiose. Law does not compel a person to do that which he cannot possibly perform - Lex non cogit ad impossibilia. Impossibility also excuses a person from doing what is required by law - Impotentia excusat legem. 

The Hon'ble Supreme Court in 

Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530 

had occasion to consider the above two maxims and held in para 70 as follows:. 

"70. The maxim "lex non cogit ad impossibilia", like all maxims, only tells us that law does not contemplate something which cannot be done. The maxim applies, insofar as persuading the court to hold that it is impossible to send a company to prison. The maxim by itself does not empower the court to break up the section into convenient parts and apply them selectively. Nor does the maxim "impotentia excusat legem" apply here for the same reason. Au contraire, the application of these two maxims could equally persuade the court to ignore the language of the statutory provision in the case of a juristic person, there being no warrant for dissecting the section and treating only one part as capable of implementation when the mandate of the section is to impose the whole of the prescribed punishment." 

It is to be noted that the Division Bench of this Court in 

Aishabeevi v.Superintendent of Police [2014 (3) KLT 1078] 

held that there is no provision in the land utilisation order that any paddy land which was converted continued to be presumed as an illegally converted land. Thus, in the light of the discussion as above, when the land has become unfit to produce paddy, the Collector cannot compel the land owner to cultivate paddy. The holder of land is free to use the land in accordance with law. Thus, I hold that in respect of paddy land which was converted prior to the enactment of the Act 28 of 2008 no permission is required in terms of clause 6 of KLUO.

13. Before parting with the judgment, this Court hastened to state certain gloomy facets of uncontrolled use of agricultural land for other purposes. Land management is the key to modern governance of a State. Food security stems from land use and proper management of land. The food security and land use are the paramount interest to be addressed by any responsible State.

14. The report of the World Bank would indicate that by the year 2050, the World needs 50% more food to feed 9 billion people. Boosting agricultural production or investing in agricultural activities is essential for food security. Any neglect in the use of land to sustain food production would negative achievements in any other segments in the State. The State has sufficient power under Entry 18 of List II of the Seventh Schedule of the Constitution to control right in or over land, transfer, alienation of agricultural land etc. The National Food Security Act, 2013 is a Central Enactment meant for distribution of food stuffs to the underprivileged or any other citizen. It is more related to the distribution of food. The production of food is also related to the State subject. KLUO, though, was issued to sustain food production, nevertheless, it was issued in the wake of shortage of food and famine. KLUO in the present form is archaic, antiquated and not suited to the current time to sustain agricultural landscape. The scheme KLUO as has been pointed out would operate only as an enabling power to sustain production and not to control or regulate rights in or over the land. It is, therefore, imperative for the State to come out with the provisions to control interest in the right of agricultural land and sustain agricultural growth to generate food crops and to assure food security. The growing need of the world and depleting agricultural landscape is alarming. Act 28 of 2008 is a piece of legislation to bolster paddy cultivation and it is more to do with the biodiversity and ecology. However, in relation to other food crops other than paddy, the State lacks legislation to compel the holder of the land to produce food crops. One reason attributable to tardy agricultural growth is fragmentation of agricultural landscapes and the costs involved in cultivation in small holdings, which are less productive and non profitable. Measures should be taken in terms of the Kerala Land Reforms Act, 1963 to do away with ceiling area for agricultural land. Agricultural land in modern day has to be run like an industry. Therefore, it is for the State to come out with the legislations to secure the agricultural landscapes of the State. Any attempt to fill vacuum by a subordinate legislation like KLUO is nothing but deplorable.

15. The writ petitions are disposed of holding that the petitioners are free to utilise the paddy land which is converted prior to the enactment of the Act 28 of 2008 for any other purposes without the permission of the Collector in accordance with law. No costs.