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Judgment
The petitioner has filed the captioned writ petition seeking to challenge Ext.P24 order issued by the Commissioner of Land Revenue, setting aside Exts.P1 and P2 proceedings issued under the Kerala Land Utilisation Order, 1967 (hereinafter referred to as the “KLU Order”) after the delay of around 30 years. The petitioner also contends that the afore order has been issued as a ruse to bypass the directions contained in Ext.P4 judgment of a learned Single Judge of this Court.
The short facts necessary for the disposal of this writ petition are noticed as under:
The petitioner is stated to be the owner in possession and enjoyment of 148.82 cents of land comprised in Survey Nos.65/4, 66/12, and 66/9 of Vengeri Village, Kozhikode District. The petitioner states that she filed separate applications during 1994, seeking permission for change of use of the land and for its conversion under the provisions of Clause 6(2) of the KLU Order and the Revenue Divisional Officer(RDO) after carrying out necessary enquiry in the matter issued:
Ext.P1 order dated 14.05.1995 as against 88.82 cents of property.
Ext.P2 proceedings dated 30.10.1995 as against 60 cents of property. thus, covering the entire extent of 148.82 cents and permitting the petitioner for conversion of the afore land. The petitioner states that even on the face of the afore order, the entire extent of land was wrongly included in the data bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as the “Act, 2008’) and in spite of submitting an appropriate application, the Local Level Monitoring Committee (LLMC) took a stand that the subject properties require to be treated as paddy land/nilam requiring no exclusion from the data bank. The petitioner states that the afore proceedings were challenged before this Court by filing W.P(C) No.15862 of 2020, which came to be disposed of by Ext.P4 judgment dated 20.08.2020, finding that the proceedings at Exts.P1 and P2 have been issued after carrying out an enquiry/inspection finding that the land is not suitable for paddy cultivation and no hindrance will be caused to the neighbouring land owners, therefore granting permission as sought for and the State is not expected to reagitate the factual findings in subsequent proceedings. Finding thus, the writ petition was disposed of, directing the LLMC to take emergent steps to exclude the property from the data bank and to issue a revised notification in accordance with law. The petitioner states that the judgment of this Court, produced as Ext.P4, was also submitted before the respondents. Despite the same, the RDO issued Ext.P8 directing the petitioner to submit an application in Form 5 under the Act, 2008. Accordingly, the petitioner submitted the said application, although she was not legally required to do so. The petitioner states that when the Form 5 application was filed as above, the 2nd respondent issued Ext.P16 communication, which in fact is a “reagitation” of the factual situation noticed in Ext.P4 judgment, on account of which, the petitioner filed Contempt of Court Case (C) No.22 of 2025 before this Court, and this Court issued Ext.P19 order dated 07.04.2025, which reads as under:
“Going by the findings and directions in the Annexure A1 judgment, while remanding the matter, the second respondent was directed to ascertain whether the subject properties covered by the Ext.P3 series of applications are the same or part of the properties covered by Exts.P1 and P2, the orders passed under the Kerala Land Utilisation Order.
Despite the above, orders have been passed in the Form 5 application dated 07.09.2024 ignoring the findings and directions in Annexure A1 judgment. Prima facie, the orders now issued are against the express directions in Annexure A1 judgment. The respondents are given three weeks' time to pass orders in tune with the directions in Annexure A1 judgment.”
Later, the petitioner states that the learned Government Pleader informed this Court that an appeal is preferred against the KLU Orders at Exts.P1 and P2, which were recorded by this Court in the Contempt of Court Case. The appeal so preferred (Ext.P22), along with an application seeking condonation of delay, is disposed of by the impugned order at Ext.P24, setting aside Exts.P1 and P2 orders.
It is seeking to challenge the order at Ext.P24 issued as above, the captioned writ petition is filed.
Heard Sri.Millu Dandapani, the learned counsel for the petitioner, and Sri.Sherry J. Thomas, the learned Special Government Pleader (Revenue) for the respondents.
Sri.Millu Dandapani, the learned counsel for the petitioner, would contend that:
Exts.P1 and P2 were issued after carrying out an enquiry/inspection and finding that the land is not suitable for paddy cultivation.
This factual finding cannot be reagitated.
Even when the contempt proceedings were initiated, the respondents have not filed any appeal against Exts.P1 and P2.
It is only for escaping from the contempt proceedings that the appeal was presented.
The 4th respondent has virtually condoned the delay of around 30 years without any proper explanation.
Without prejudice, Ext.P24 would show that the delay is sought to be explained, contending that the KLU Orders were served only on 29.01.2025.
Per contra, Sri.Sherry J.Thomas, the learned Special Government Pleader, would contend that:
The findings contained in Exts.P1 and P2 were incorrect, as is clear from the inspection carried out in the property as referred to in the impugned order.
In the light of the afore, the appeal is preferred under Clause 11 of the KLU Order.
The 4th respondent has considered the explanation and condoned the delay, which finding does not warrant any interference.
Without prejudice, Exts.P1/P2 were not acted upon and hence, as on the introduction of the Act, 2008, the property, having continued as paddy land/wetland, the provisions of the Act, 2008 would apply.
I have considered the rival contentions as well as the connected records.
The issue arising for consideration, as noticed earlier, is as regards the claim made by the petitioner on the basis of Exts.P1 and P2 KLU Orders, which is sought to be set aside by the impugned order at Ext.P24. The learned Special Government Pleader would contend that the remedy of appeal is provided under Clause 11 of the KLU Order, and the appellate order having been issued on that basis, this Court may not interfere. He would further state that, under Clause 11, though the appeal ought to have been presented within 30 days, the Land Revenue Commissioner could condone the delay under the provisions of Section 5 of the Limitation Act, 1963.
True, Clause 11 only provides for preferring an appeal within 30 days from the “date of receipt of the order”. There is no statutory exclusion of the provisions of the Limitation Act thereunder. Hence, the respondents could seek for condonation of the delay under Section 5 of the Limitation Act.
The Apex Court in N.Balakrishnan v. M.Krishnamurthy [(1998) 7 SCC 123] considered the question of condoning “delay” in moving an application under Section 5 of the Limitation Act, 1963, holding as under:
“11.Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12.A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari and State of W.B. v. Administrator, Howrah Municipality.
13.It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.”
(Underlining supplied)
It is with reference to the principles laid down as above that the question as to whether the 4th respondent was justified in condoning the delay requires to be analysed.
Section 5 of the Limitation Act entitles a delay in filing an appeal to be condoned, if the appellant satisfies the court that he had sufficient cause for not preferring the appeal within the prescribed period. In the case at hand, the appeal is filed aggrieved by Ext.P1 order dated 14.05.1995 and Ext.P2 order dated 30.10.1995.
Sri.Sherry, the learned Special Government Pleader, would state that the respondents were informed about the KLU Orders only on 29.01.2025 and hence the delay requires to be explained only with reference to that date. The application seeking condonation of delay filed along with Ext.P22 appeal would show that it is only when this Court issued the order dated 07.04.2025 in Contempt of Court Case (C) No.22 of 2025 (Ext.P19) that the respondent came across the afore order. It is on that basis that the delay is sought to be explained and condonation sought for.
However, this Court notices from a perusal of Ext.P3 judgment in W.P.(C) No.40436 of 2018 dated 12.12.2018 that the petitioner had relied on Exts.P1 and P2 while filing the afore writ petition. This Court disposed of the writ petition directing the 3rd respondent, LLMC to process the application seeking removal of the property from the data bank. Similarly, in W.P(C) No.15862 of 2020, which was subsequently disposed of by Ext.P4 judgment on 20.08.2023, also sought to consider the impact of the KLU Orders issued in the year 1995 in extenso. The following observations in Ext.P4 judgment would show that the respondents had knowledge about Exts.P1 and P2 atleast with reference to the date of Ext.P4 judgment:
“5.A reading of the pleadings and materials on record would clearly show that the petitioner has secured statutory permission under Rule 6(2) of the KLU Order as per Exts.P1 and P2 proceedings as early as on 14.5.1995 and 30.10.1995 pursuant to the application dated 19.2.1994 filed by him and Exts.P2 and P3 proceedings are the proceedings granting statutory permission by none other than the 2nd respondent-RDO and that too, as early as in the year 1995. The petitioner has also filed Ext.P4 representation dated 26.11.2018 before the 2nd respondent-RDO seeking for directions to ensure the exclusion of the subject properties from the land data bank.
6.If as a matter of fact, the subject property covered by Ext.P3 series of applications are the same or part of the properties covered by Ext.P1 and P2, then the very inclusion of such properties in the draft data bank/final data bank itself, is illegal and ultravires. A property can be included in the draft data bank/land data bank only if the subject property fulfills the basic definition of paddy land as per Sec.2(xii) of the 2008 Act which reads 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;’
11.It is in the light of these aspects that necessary statutory permission under Rule 6(2) of the KLU Order has been granted by the 2nd respondent both in terms of Exts.P1 and P2 proceedings. The abovesaid factual findings in paragraph No.2 of Exts.P1 and P2 has become final and conclusive. The respondent-State authorities cannot re-agitate the said factual findings in any subsequent proceedings. Hence, it goes without saying that the subject property will not fulfill the definition of paddy land as per Sec.2(xii) of the Act as on 12.8.2008 or at any time after the issuance of Ext.P1 proceedings dated 14.5.1995 and Ext.P2 proceedings dated 30.10.1995. Hence, the very inclusion of the subject properties in the land data bank is illegal, ultravires and unenforceable and all what is required is only formal orders from the competent revenue official concerned to ensure the exclusion of the subject property from the draft data bank/final data bank, as the case may be.”
(Underlining supplied)
Therefore, I am of the opinion that the stand taken by the respondents before the 4th respondent that they came to know about Exts.P1 and P2 orders only on 29.01.2025 does not require to be accepted.
In this regard, this Court notices the observations made by the Apex Court in Balakrishanan (supra) that the “rules of limitation are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly”. This Court also notices that the respondents chose to file an appeal only after contempt proceedings were initiated and orders were passed therein, as noticed earlier. Hence, I am of the opinion that the very filing of the appeal after the lapse of around five years from the date of Ext.P4 judgment can only be taken as a dilatory tactic on the side of the respondents.
Even on merits, I am of the opinion that the petitioner is entitled to succeed, since admittedly, Exts.P1 and P2 orders have been issued after carrying out an appropriate enquiry in the matter. This Court, in the judgment at Ext.P4, has also specifically noticed that Exts.P1 and P2 were issued after an enquiry/inspection, which revealed that the land is not suitable for paddy cultivation and that the grant of the permission sought for would not cause any hindrance to the neighbouring landowners. Though Sri. Sherry, the learned Special Government Pleader, sought to rely on the observations contained in Ext.P24 order that the property continues to be paddy land notwithstanding Exts.P1 and P2, I am of the opinion that, in the light of the findings recorded in Exts.P1 and P2, there is no necessity to consider that aspect any further.
In such circumstances, I am of the opinion that the petitioner is entitled to succeed. Hence, the writ petition is allowed, setting aside Ext.P24 order issued by the 4th respondent.
In view of the afore, needless to say that the respondents are required to act on the basis of the directions issued in Ext.P4 judgment. In view of the fact that Ext.P4 has been rendered as early as on 20.08.2020, the competent among the respondents to implement the directions issued therein, as expeditiously as possible, at any rate, within four weeks from today.