IMPORTANT POINT
Pending applications under the KLU Order before Section 27A's enactment must be considered under the previous law, ensuring no discrimination in fee levies.

ORDER :

A. Muhamed Mustaque, A.C.J.

These matters have been placed before us on a reference order for an authoritative pronouncement as to the impact of the order obtained under Kerala Land Utilisation Order qua Section 27A of The Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as ‘Paddy Act’).

2. Section 27A of the Paddy Act was incorporated with effect from 30/12/2017. By the above statutory provision, if the owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission. The Paddy Act was enacted in the year 2008 and it came into force with effect from 12/08/2008 to conserve paddy land and wetland and also to restrict the conversion and reclamation of such land. It mandates the constitution of the Local Level Monitoring Committee and its performance includes preparation of a data bank with details of cultivable paddy and wetlands. The power is conferred upon the District Collector to restore illegally reclaimed lands. Land, which was considered as a paddy or wetland prior to 12/08/2008 in the Basic Tax Register (BTR) and converted or reclaimed prior to 12/08/2008 is the subject of Section 27A, that means, land in BTR shown as paddy or wetland, but it was converted or reclaimed prior to 12/08/2008 and no longer remains as paddy land or wetland.

3. Land Utilisation Order is a subordinate legislation issued under the Essential Commodities Act. The purpose of the Land Utilisation Order is to secure the objectives of the Essential Commodities Act. The State Government issued Land Utilisation Order in 1967 in exercise of power conferred under Essential Commodities Act to increase production of food crops. To ensure food security, the Collector has power to direct the holder of the land to cultivate such crops which were being cultivated in the land. The food crops under the Land Utilisation Order includes paddy.

4. If the land continues to be a paddy land, on the enactment of Paddy Act, 2008, the law regarding the paddy land is governed by the provisions of the Paddy Act, 2008. If the land has been already converted and it cannot be used as paddy land, it may not be possible for the Collector to direct the holder of the land to cultivate paddy as it may be asking the holder of the land to perform an impossible act.

5. A Division Bench of this Court in Thomas V.J. v. State of Kerala and Others (2020 KHC 728) held that, consequent upon the introduction of Section 27A, clause 6(2) of the Kerala Land Utilisation Order(KLU Order) has become redundant as it has lost its relevance.

6. The point arises in the case is in the context of applications that have been made prior to 30/12/2017 for utilising the land for other purposes under KLU Order and no orders have been passed thereon. There are two sets of arguments raised before us, one is by Adv. Sri. Peeyus A. Kottam contending that the application pending before the Revenue Divisional Officer under KLU Order prior to 30/12/2017 is not affected by the incorporation of Section 27A of the Act and holder of the land has a vested right to consider the application in accordance with KLU order. Therefore, it was argued that, once the application was considered and allowed, the holder of the land need not follow the procedure under Section 27A. The second contention was raised by Adv. Sri. K.C. Vincent. According to him, there is no bar under the law to consider the application under Clause 6 of KLU Order independent of Section 27A of the Act.

7. The KLU Order was issued in 1967. In Archana Varghese v. District Collector, Pathanamthitta (2015 (2) KHC 39), it was held that:

“When the land becomes uncultivable for the paddy, the enabling power will become otiose when the land has become unfit to produce paddy the collector compel the land owner to cultivate paddy. The holder of the land is free to use the land in accordance with law. Thus, I hold that in respect o