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ISSATHUL ISLAM MADRASSA V/S KEEZHATTOOR GRAMA PANCHAYATH, decided on Friday, July 3, 2015.
[ In the High Court of Kerala, W.P.(C) No. 5291 of 2015. ] 03/07/2015
Judge(s) : DAMA SESHADRI NAIDU
Advocate(s) : S. Sreekumar, K. Jaju Babu, Renjith Thampan, Sr. , B. Premnath (E), P.R. Reena, C. Vathsalan, K. Rakesh Roshan, M.U. Vijayalakshmi, A.B. Mohanakumar, G. Sreekumar Chelur, Nandagopal S. Kurup, Prasad Chandran, P.V. Dileep, Bechu Kurian Thomas, P. Paul Jacob, Enoch David Simon Joel, S. Sreedev, P.B. Sahasranaman, T.S. Harikumar, M.R. Sasith, M. Gopikrishnan Nambiar, P. Gopinath, P. Benny Thomas, K. John Mathai, Joson Manavalan, Kuryan Thomas, George Poonthottam, K.S. Rajesh, M. Shaju Purushothaman, Johnson Gomez, S. Biju Kizhakkanela, Devan Ramachandran, K.M. Aneesh, Adarsh Kumar, A. Sreekala, T.C. Suresh Menon, P.S. Appu, P.R. Remya, V.M. Krishnakumar, T.N. Manoj, Asha K. Shenoy, Pratap Abraham Varghese, C. Arun Prasanth, A.S. Brijesh, Roopa Ramachandran, Babu S. Nair, Smitha Babu, U.K. Devidas, P.M. Shahida, V.S. Viswambharan, P.R. Sreejith, M. Promodh Kumar, P. Santhosh Poduval, R. Rajitha, K.D. Sreevisakh, John Josephroy, Jefrin Manuel, S. Jiji, T. Prasad, K.M. Nazarudheen, K.I. Sageer, Binu Paul, Kaleeswaram Raj, P.K. Nijoy, C. Prabitha, P. Ramachandran, M. Anil Kumar, T.A. Unnikrishnan, K.S. Praveen, Peeyus A. Kottam, P. Martin Jose, G. Hariharan, H. Praveen, M.H. Hanil Kumar, M.R. Dhanil, T.K. Aravinda Kumar Babu, Rajesh Nambiar, K.P. Santhi, V. Rajasekharan Nair, Rilgin V. George, E.U. Dhanya, K. Mathew John, Domson J. Vattakuzhy, Binoy Vasudevan, P.G. Babitha, P.K. Sajeev, K.P. Sudheer, Arun Mathew Vadakkan, Noorji Noushad, Anil K. Mohammed, Jamsheed Hafiz, Avaneesh Koyikkara, Lindons C. Davis, K.K. Unni Ezhumattoor, R. Dipu, Benhur Joseph Manayani, Sanal P. Raj, K. Sajan Vargheese, M.P. Liju, Benny Varghese Thettayil, C.M. Mohammed Iquabal, P. Santharam, Rekha Aravind, K. Dilip. K.M. Sathyanatha Menon, Philip J. Vettickattu, Kavery S. Thampi, Jibu P. Thomas, Sheejo Chacko, K. Rajesh Kannan, P.K. Manojkumar, M.V. Bose, Rony Jose, George A. Cherian, B. Krishna Mani, K.P. Vijayan, V.N. Haridas, K. Ravi Pariyarath, C.A. Majeed, P. Ramakrishnan, P.C. Sasidharan, S. Subhash Chand, N. Unnikrishnan, Subhash Cyriac, Sheeba Joseph, K.S. Bharathan, Shaji P. Chaly, R. Sanjith, K.K. Ashkar, K. Shibili Naha, V.A. Muhammed, E.S.M. Kabeer, Preethi K. Purushothaman, Harish R. Menon, Kodoth Sreedharan, V.M. Kurian, R. Ranjith, , Government Pleader.
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  "2015 (3) KLT 344"  ==   ""  







    Common Judgment:Introduction:1. God’s own country is also man’s paradise with teeming millions trying to have a foothold better expressed a secure roof over their heads. With the density of population at three times the national average here man is insidiously perhaps out of compulsion waging a turf war with the nature—the trees and water especially. The inelastic land resource fast getting exhausted for non-agricultural purposes the State stares at the prospect of rendering itself a consuming society rather than a producing one. Then step in the Government and the Legislature with measures to protect the nature’s province: Kerala Land Utilisation Order 1967 and the Kerala Conservation of Paddy and Wetland Act 2008 have been brought on to the statute books.2. To gauge the pressure of people on nature’s habitat can be quoted this excerpt from a news report (the Hindu May 18 2013) which is based on the latest census. The density of population in Kerala has gone up to 860 persons per square kilometer from a figure of 819 in 2001. The highest density of 1 508 persons per sq. km is reported from Thiruvananthapuram district while Idukki with 255 has the lowest density. Malappuram with a population of 41 12 920 is the most populated district in the State while Wayanad with 8 17 420 is the least populated. The total number of households in Kerala as per the census is 78 53 754 with the average household size put at 4.3. In 2001 the household size was 4.7; Malappuram district with 5.2 as average household size is at the top while Pathanamthitta district with 3.7 has the lowest household size.Adjudicatory Ambit:3. This batch of Writ Petitions throws up the issue of inter-play between a secondary legislation—the Kerala Land Utilisation Order—and a primary legislation—the Kerala Conservation of Paddy Land and Wetland Act 2008. Put differently whether both the enactments notwithstanding the disparity in the source of their origins stand simultaneously to hold their respective fields or the latter subsumes the former from the day of its enactment or enforcement? In other words whether these two pieces of legislation conflate or conflict in resolving the issue of conversion of—compendiously expressed—agricultural lands into non-agricultural lands.4. Many of the cases in the batch have shades of variance factual and legal. Nevertheless the primary issue remains whether the authorities of the Local Self Governments are bound to grant building permits once the nature of the property stood changed prior to the enforcement of the Wetland Act 2008 despite the fact that the land still continues to be reflected in the revenue records as nilam or of similar description. As per S.2(38) of the Kerala Land Reforms Act 1963 nilam means land adopted for paddy cultivation.Brief Facts:5. While keeping in view the differences in the facts of the individual Writ Petitions which will be adverted to at an appropriate time if at all they call for separate treatment; I propose to take up the facts in W.P.(C) No.3198/2015 for the narrative purpose and for examining the issue essentially common in all the Writ Petitions. I may therefore ever so briefly touch upon the facts of the matter which are as follows:6. The petitioner employed abroad is the owner in possession of 43 ares of land in Sy.No.484 of Kuttapuzha Village having purchased the same through a registered sale deed dated 02.07.2011. Through Exhibit P2 dated 05.06.2012 the Village Officer filed a report before the Revenue Divisional Officer that the property in question is bounded by road on the southern side and by residential properties on all other sides. To the similar effect is Exhibit P3 certificate dated 23.05.2012 issued by the agricultural Officer who is also the Convenor of the Local Level Monitoring Committee. They have certified that the petitioner’s property is not fit for paddy cultivation.7. Exhibit P4 is the extract of the entries in data bank prepared under the Kerala Conservation of Paddy Land and Wetland Act 2008 (‘the Wetland Act’ for brevity) recording that the land is a reclaimed garden land; the reclamation is said to have taken place even before 1995. Asserting that his land ceased to be an agricultural land more than fifty years ago the petitioner submitted an application to the Secretary of the respondent Municipality seeking building permit for raising a residential structure. The Secretary however through Exhibit P5 dated 16.04.2014 rejected the petitioner’s request on the ground that the revenue records reflect the land as paddy land. Aggrieved thereby the petitioner has filed the present Writ Petition.Submissions:Petitioners’:W.P.(C)No. 3198/2015:8. In the above factual backdrop Sri Ranjith Thampan the learned Senior Counsel for the petitioner has made elaborate submissions assailing Exhibit P5. Succinctly stated his principal contention is that it is abundantly clear from Exhibits P2 to P4 that the petitioner’s property has long since been ceased to be paddy land or wet land thus clearly falling outside the mischief of either the Act or the Kerala Land Utilisation Order (‘the KLUO’ for brevity). In elaboration he has submitted that the courts have time and time again held that mere entry in the revenue records is not determinative of the nature of the land. The learned Senior Counsel also relies on Exhibit P2 report submitted by the Village Officer to the Revenue Divisional Officer to the effect that the property has lost its agricultural potential. According to him keeping aside the nature of entry in the data bank there is no scope to apply the provisions of the Act to the petitioner’s land because the land ceased to be an agricultural land by the time the Act came into force. Contending that the Act does not have any retroactive operation the learned Senior Counsel has placed reliance on Jafarkhan v. K.A.Kochumarakkar & Ors. (2012 (1) KLT 491).9. The learned Senior Counsel has also taken me through the substantial provisions of the Act with special reference to S.14 thereof to contend that what matters are the physical features of the property as on the date when the Act came into force or when the owner of the property applied for building permission as the case may be. The learned Senior Counsel in that regard has placed reliance on Hajee Abubacker & Anr. v. Revenue Divisional Officer Palakkad ((2009 (4) KLT 49 = 2009 (4) KHC 90) and Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009 (3) KLT 899 = 2009 KHC 449).10. It is the specific contention of the learned Senior Counsel that the Act has displaced the Order inasmuch as the Act being the substantive legislation has comprehensively dealt with the issue of conversion of properties. In other words according to the learned Senior Counsel in the face of the enforcement of the Act the officials cannot fall back on the Order which has according to him only limited purpose in terms of the statutory scheme under the Essential Commodities Act under which the Order a piece of subordinate legislation came to be promulgated. In support of his plea of the Act subsuming the Order the learned Senior Counsel has placed reliance on Praveen K. v. Land Revenue Commissioner Thiruvananthapuram (2010 (2) KLT 617 = 2010 (2) KHC 499).11. The learned Senior Counsel has also drawn my attention to S.5(4) of the Act to lay emphasis on the semantic difference between the expressions ‘cultivable’ and ‘cultivated’. According to him S.2(1) of the Act is very expansive in its scope. Placing reliance on the recent judgment of a learned Division Bench of this Court in Adani Infrastructure & Developers Pvt. Ltd. v. State of Kerala (2015 (1) KLT 651) the learned Senior Counsel has strenuously contended that once the data bank—draft or final—reflects a property to be non-agricultural no further discretion is vested with the authorities to refuse the building permit. In this regard the learned Senior Counsel has placed reliance on Aishabeevi & Anr. v. Superintendent of Police Ernakulam & Ors. (2014 (3) KLT 1078).12. The learned Senior Counsel has also made sustained efforts to distinguish the ratio of Jalaja Dileep v. Revenue Divisional Officer & Ors. (2012 (3) KLT 333 = 2012 (3) KHC 27) (sic) (Revenue Divisional Officer v. Jalaja Dileep (2015 (1) KLT 984 (SC)) to hold that what has fallen for consideration before the Apex Court in the said judgment is entirely different from what is required to be considered in the present instance. In expatiating on his submissions the learned Senior Counsel would contend that in Jalaja Dileep the issue was with regard to reconsidering the application filed for change of the nature of the land in the basic tax register under the provisions of the Kerala Land Tax Act. According to him if any observations incidentally made in Jalaja Dileep concerning the inter-play between the Order and the Act they are only obiter and thus cannot be treated as binding.13. According to the learned Senior Counsel on more than one occasion this Court per Benches of varied strength; has considered the issue and clinchingly held that the Act has the primacy; any application for building permit shall be considered only in terms of the provisions of the Act not the Order.14. The learned Senior Counsel has taken me through various provisions of the Order especially Order 6 thereof to contend that the said order only speaks of the violations concerning use of agricultural land but provides for neither remedial measures nor penal consequences. With reference to Order 7 the learned Senior Counsel would contend that the very provision begins with the expression “may” thereby amply establishing that the whole scheme is merely directory rather than mandatory. According to him KLUO does not contain any provisions analogous to S.13 of the Act.15. As a matter of alternative submission learned Senior Counsel would contend that even if there were any violations of the provisions of the Order prior to the enforcement of the Act both on the ground of limitation and also on the ground of repeal the conduct of the petitioner’s predecessors in its entirety cannot be found fault with. In other words after many years the respondent authorities cannot be heard saying that the petitioner has violated Order 6 for the very provision specifies that if the property has not been brought under cultivation within three years from the date of the promulgation of the Order the authorities ought to have taken necessary steps. At any rate since 2008 when the Act came into force the authorities under the Order cannot have any say regarding the alleged violation of an executive dictate decades ago. Laying heavy emphasis on the comprehensive nature of the Act the learned Senior Counsel has placed reliance on Cholamarakkar and another v. Pathummamma @ Pathumma and another (2008 (3) KLT 887 = 2008 (3) KHC 973). Concerning the observations in Jalaja Dileep the learned Senior Counsel has placed reliance on Arun Kumar Aggarwal v. State of M.P. (2011 (3) KLT Suppl. 32 (SC) = AIR 2011 SC 3056) to hammer home his contention that obiter dictum cannot have precedential value.W.P.(C) No.5016/201516. The learned counsel for the petitioner has submitted that as can be seen from paragraph 23 of Jalaja Dileep the issue therein is concerning conversion of land. In the present instance the petitioner’s land according to the learned counsel stood converted long back as is evident from the standing timber and also the surrounding residential houses. The learned counsel has also laid stress that the property is not included in the data bank; nor has the petitioner sought any conversion inasmuch as the revenue officials have already given Exhibits P4 and P5 certificates declaring that the land is no longer nilam.17. The learned counsel has also drawn my attention to Rules 4 and 7 of the Kerala Panchayat Building Rules 2011 apart from referring to Order 3 of the KLUO. It is the singular contention of the learned counsel for the petitioner that at no point of time has the Government initiated any steps under the provisions of the KLUO though the property had been put to non-agricultural use long back. According to him it would serve no purpose to insist on enforcing the provisions of KLUO at this stage. In the end the learned counsel has submitted that he was given licence by a public sector oil corporation for establishing an LPG dealership on the property and that unless the authorities expeditiously grant the building permit the petitioner faces the problem of losing the licence.W.P.(C)No.4943/201518. The learned counsel for the petitioner has submitted that most of the observations in Jalaja Dileep by the Apex Court concerning the nature of the land or for that matter the application of KLUO to the lands are obiter. It is also his contention that the ratio laid down by this Court through numerous judgments concerning in his words the futility in insisting on compliance with archaic KLUO stands undisturbed and undiluted to this day notwithstanding Jalaja Dileep. W.P.(C) No.5203/201519. The petitioner has placed reliance on Exhibit P3 certificate issued by the Village Officer to contend that the land is no longer cultivable and that neither the KLUO nor the Wetland Act has any application to the said property.W.P.(C) Nos.8409 and 8612/201520. In these Writ Petitions the properties have been shown in paddy zones under detailed town planning schemes.W.P.(C) No.302/201421. The petitioner has assailed Exhibit P8 order of rejection by the respondents to grant building permission. According to the learned counsel for the petitioner prior to 2008 there was no law that had governed the paddy fields. KLUO according to him is traceable to the Essential Commodities Act. In terms of the prohibition imposed in terms of the KLUO what is protected is food crop but not the land which is a state subject. According to him nobody at this juncture could determine what was the position of the land in 1964 or soon thereafter. Once it is accepted that the respondent authorities have not initiated any action in terms of the KLUO Order 7 thereof contends the learned counsel comes into picture but only after Order 6. It is also one of the contentions of the learned counsel for the petitioner that all the observations in Jalaja Dileep are focused on the Land Tax Act 1961 and the nature of the entries in the basic tax register for fiscal purpose.W.P. (C) No. 14569/2014:22. Exhibit P4 is the certificate issued by the Village Officer holding that the land was re-claimed much prior to the Wetland Act.Issathul Islam Madrassa v.Keezhattoor Grama Panchayath (Dama Seshadri Naidu J.)W.P.(C)No.7814/201423. The petitioner has only six ares of land converted before the commencement of the Wetland Act. The learned counsel has also brought to the notice of this Court that the authorities concerned have recommended that the petitioner has no other residential building and that he is residing in a rented house. According to him there ought not to be any legal hurdle against the petitioner’s having a house built on the only piece of property he owns for right to shelter is also a fundamental right.W.P.(C) Nos.4246/2015 and 4887/201524. The learned counsel for the petitioner has submitted that; as could be seen from the judgment of this Court in W.P.(C)No.4887/2015 the land on physical verification was found to be dry land. In both the cases though the building permit was granted initially now a show-cause notice has been issued proposing to cancel the building permits without any justification.W.P.(C)No.9141/201525. The petitioner has got Exhibit P2 building permit dated 14.08.2007 and completed the construction in 2008. As could be seen from Exhibit P5 the land according to the learned counsel stood reclaimed prior to 2005. With regard to the lands that had already been converted the provisions of the KLUO do not apply even as per Jalaja Dileep is the contention of the learned counsel. Having completed the construction under a valid building permit when the petitioner applied for house number it was rejected on the ground that the property is agricultural in nature. The learned counsel strenuously contends that the action of the respondent authorities is totally arbitrary and unsustainable.W.P.(C) Nos.5016/2015 5085/2015 and 1518/201526. In the first two cases the building permit was rejected on the ground that the revenue records show the land to be nilam. The records however clearly reveal that the nature of the land is dry with standing trees and that the entire neighbourhood has been well developed. According to the learned counsel in various judicial pronouncements this Court has held that the only criterion for the purpose of building permit is the present condition of the land; rather than the entries in the revenue records. In other words the entries which remained uncorrected for decades despite the change of the nature of the land cannot be a guiding factor in granting a building permit.27. Referring to Jafarkhan’s case (supra) the learned counsel would contend that once the neighbouring property was developed and the land was found to be uncultivable there should not be any hurdle in the petitioner’s getting the building permit.28. The learned counsel has also contended that with the density of population three times the national average the State of Kerala can ill-afford to have any regulation or statute that deprives the people from having modest buildings erected on their own lands. It is also the contention of the learned counsel that even the zoning regulations cannot be implemented in Kerala leave alone widening the National Highways which in fact have different norms in the State.W.P.(C)No.15198/201529. Initially a building permit was granted and substantial portion was constructed; when the petitioner applied for house number it was denied without ever cancelling the building permit in the first place.W.P(C) No.6012/201430. Petitioners 1 and 2 being the father and the son respectively the first petitioner assigned five cents of land in favour of the second petitioner. In response to Exhibit P3 application for conversion of land the Revenue Divisional Officer has issued Exhibit P4 reply based on which the respondent Grama Panchayat has passed Exhibit P5 resolution. The learned counsel has also submitted that the first petitioner donated about thirty cents of land for public purpose; to wit for a bus stand. The learned counsel has also drawn my attention to paragraphs 4 and 5 of the counter affidavit filed by the Revenue Divisional Officer. According to him the KLUO does not have any application to the dry lands. In view of the resolution passed by the Grama Panchayat the petitioners ought to have been given the building permit. In support of his submissions the learned counsel has placed reliance on Praveen v. Land Revenue Commissioner (2010 (2) KLT 617).W.P.(C) No.29003/201431. Exhibit PI certificate issued by the Village Officer contends the learned counsel clearly reveals that the property has been put to non-agricultural purpose for more than twenty years. In spite of it the respondent Grama Panchayat has rejected the petitioner’s Exhibit P2 application through Exhibit P3 order still contending that the land is nilam. According to the learned counsel mere description in revenue records cannot be conclusive of the nature of the land.W.P.(C) No.29306/201432. According to the learned counsel for the petitioner the land was shown as residential in the registers maintained earlier under the Stamp Act. Any local inspection would reveal that the land was converted long back. It is the singular contention of the learned counsel that the respondent authorities have rejected the building permit solely for the reason that the property is described in the basic tax register as wetland though the property has been converted long ago.Issathul Islam Madrassa v.Keezhattoor Grama Panchayath (Dama Seshadri Naidu J.)W.P.(C) No.9115/201533. The learned counsel has initially invited my attention to S.2(12) of the Act to emphasise that the very definition focuses on the suitability of the land for cultivation. According to him small extents of land which are not capable of being cultivated cannot be said to be within the mischief of the Act. The learned counsel in expatiation of his submissions has also contended that unless there is a clear finding that the cultivation has taken place during the relevant period there cannot be any entry in the data bank. He has also submitted that; in so far as the wetland is concerned there is a total prohibition but in the case of paddy land no such statutory interdiction can be found. Once Sections 3 and 5 of the Act are read in conjunction with Order 5 the inescapable conclusion is that the authorities ought to have permitted the petitioner to construct on his five cents of land which is in fact incapable of being cultivated. According to the learned counsel the scheme of the Act is to protect the paddy cultivation but not to impose total prohibition against all types of land from being used profitably. The learned counsel has also referred to Orders 3 4 and 6 of the KLUO.34. The Government does not have according to the learned counsel a specific case that the petitioner cultivated the land for three years after 1967. Once there cannot be any such finding the petitioner cannot be prevented from enjoying the property in the manner he deems it fit. So long as the emphasis remains on the growing of crops the lands which are not fit for cultivation fall automatically outside the purview of either KLUO or the Wetland Act. The learned counsel has also drawn my attention to Exhibit P2 the entry in revenue records.W.P.(C) No.26050/201435. The extent being 4.45 ares notwithstanding the entry in the revenue records as nilam the property actually is garden land surrounded by the already developed properties. According to the learned counsel for the petitioner the land has also not been included in the data bank.W.P.(C) No.9118/201536. The learned counsel has placed reliance on Sections 235(2) and 235(k) of the Kerala Panchayat Raj Act. Despite Exhibit P5 document having been placed before the Panchayat Committee it has not taken any decision concerning the issuance of building permit to the petitioner whose land stood converted fourteen years ago. The learned counsel has also drawn my attention to Exhibit P4(a) Government circular. It is also the specific contention of the learned counsel for the petitioner that the Government was conscious about the KLUO when it enacted the Wetland Act.W.P.(C) No.8837/201537. According to the learned counsel Exhibit P1 rejection order cannot be sustained in the face of the circular issued by the Government in 2011 and also the fact that the property was reclaimed forty years ago. Even Exhibit P2 data bank prepared in 2011 would conclusively show that the property was no longer capable of being cultivated. According to the learned counsel Jalaja Dileep has considered only S.18 of the Land Tax Act i.e. the manner of corrections to the entries in the land tax register. The learned counsel has drawn my attention to S.276 of the Kerala Village Manual to lay emphasis on the proper procedure for correcting the entries in the revenue records such as settlement register adankal extract. The learned counsel has placed reliance on Praveen Aishabeevi v. Superintendent of Police (2014 (3) KLT 1078 = 2014 (3) KHC 678) and Archana Varghese v. District Collector (2015 (1) KLT 937 = 2015 (2) KHC 39) in support of his submissions.W.P. (C) No.4037/201538. The petitioner is aggrieved by the conditions imposed that he should not alienate the land for the next ten years. According to the learned counsel Exhibit P6 data bank clearly shows that the property was converted twenty years ago. He has also submitted that the petitioner has constructed the building after obtaining a valid building permit. According to the learned counsel the right to enjoy the property absolutely also includes as a necessary incidence the right to alienate it. With the condition of non-alienation attached to the building permit there is an illegal interdiction of the petitioner’s right to enjoy the property.W.P.(C) No.25500/201439. According to the learned counsel the petitioner reclaimed the land on the strength of Exhibits P3 and P4 orders issued by the revenue authorities under KLUO. In course of time the respondent Grama Panchayat has issued the building permit in terms of which the petitioner constructed a residential building to which even a building number has been assigned. Since the constructed area comprises less than 150 sq.m. no building permission is required. Despite all these the respondent issued Exhibit P10 rejection order which according to the learned counsel is unsustainable.W.P.(C) No.25950/201440. Initially the petitioner’s application for building permit was rejected through Exhibit P5 on the ground that the property was proposed to be acquired. When the said rejection was assailed; this Court rendered Exhibit P-7 judgment directing the respondent authorities to reconsider the petitioner’s application. Once again the respondent authorities rejected the application through Exhibit P9 order holding that the land is nilam. Aggrieved the petitioner approached this Court and invited Exhibit P10 judgment in compliance with which the authorities passed Exhibit P16 order of rejection for the third time.41. The learned counsel would contend that as could be seen from Exhibits P13 and P14 the property remained fallow for more than twenty years and in terms of Exhibit P15 the property has not been included in the data bank.W.P.(C) No.34315/201442. When the construction was nearing completion the respondent authorities have raised an objection that the property is nilam notwithstanding the fact that the entire area is a thickly populated residential zone. The learned counsel has placed reliance on Jafarkhan (supra).W.P.(C) No.22548/201443. The petitioner has submitted an application for regularisation of his poultry farm. Despite the fact that the land does not have any irrigation facility and that no paddy cultivation is possible the respondent authorities have insisted that the property is nilam in nature. Contending that there has been no cultivation for the past thirty years the petitioner has placed reliance on Exhibit P5 photograph.W.P.(C) No.4078/201544. The petitioner has established a small scale industry which is presently functional. Concerning the property according to the learned counsel for the petitioner no data bank has yet been prepared. Merely on the premise that the property was shown as nilam in the revenue records the respondent authorities issued Exhibit P2 order of rejection which is assailed.W.P.(C) No.5291/201545. The learned counsel has strenuously contended that at no point of time has the petitioner been put on notice in terms of the KLUO alleging any contravention of the provisions by the petitioner. According to him Exhibit P7 an extract of the data bank prepared under S.5 of the Act clearly shows that the property is not nilam. The learned counsel has placed reliance on Archana Varghese v. District Collector (2015 (1) KLT 937). The learned counsel has also referred to paragraphs 17 and 18 of Jalaja Dileep in an effort to explain away the ratio contained therein.46. According to the learned counsel the observations in Jalaja Dileep concerning KLUO are passing in nature and do not have any bearing on the adjudication of the issue. Since the Act is a special enactment the KLUO which is a piece of subordinate legislation stands impliedly repealed. According to the learned counsel while the Act covers paddy the KLUO takes care of other food crops. Insofar as the paddy land is concerned contends the learned counsel the provisions of the KLUO cannot be imported.W.P.(C) No.252/201547. The petitioner has purchased five cents of land out of a large extent. When the respondent officials on an earlier occasion rejected the petitioner’s application for building permit through Exhibit P3 order the petitioner assailed it before this Court and invited Exhibit P4 judgment. Eventually the respondent passed Exhibit P5 order assigning the reasons for rejection.48. The learned counsel has strenuously contended that as could be seen from Exhibits P7 to P10 the self-same respondent authorities have granted building permit to various other people in the vicinity but discriminated against the petitioner. The learned counsel has placed reliance on Exhibit P2 report of the Village Officer. He has also contended that the data bank which reflected the petitioner’s land as nilam is only a draft one having no sanctity. In this regard the learned counsel has made efforts to distinguish Adani (supra) with specific reference to paragraph 34 thereof. According to him since the land is only five cents i.e. below 300 sq.m. there can be no impediment against the construction even in the absence of any building permit. The learned counsel has also placed reliance on Circular No.4545/A1/LAD dated 22.01.2011.49. With specific emphasis on S.15 of the Act the learned counsel has contended that given the extent of the petitioner’s property it is impossible to cultivate the meager extent. Despite the petitioner having kept the land fallow all these years the respondent authorities have not initiated any action. The learned counsel has referred to S.9(8) of the Act apart from placing reliance on Jafarkhan (supra). The learned counsel has also placed reliance on Jalaja Dileep (supra). He has also contended that the averments in the counter affidavit filed by the respondents are against the report submitted by their own officials.W.P.(C) No.9819/200850. In terms of the circular issued by the Government permission has already been granted to the petitioner for conversion.W.P.(C)No.11237/201551. Exhibit P2 order is under challenge. As per Exhibit P5 draft data bank entry a piece of the property was converted in 1994 and another in 1999. As could be seen from Exhibit PI plan the adjacent property has a building. That apart through Exhibit P3 circular an exemption is provided. Even otherwise the conditions imposed in the circular do not apply because the land had already been converted prior to 2008.RESPONDENTS’: W.P.(C)No.3198/201552. The learned counsel for the respondents has contended that as per the documents produced by the petitioner the property had been reclaimed before 1999; this fact has been duly reflected in the data bank prepared by the Local Level Monitoring Committee (LLMC). In this regard the learned counsel has drawn my attention to Sections 5(4) and 14 of the Wetland Act.53. Strenuously contending that various learned Division Benches of this Court have categorically held that there is no escaping from the stringent provisions of the Wetland Act he has placed reliance on Adani Infrastructure & Developers Pvt. Ltd. v. State of Kerala (2015(1) KLT 651(D.B.) and Local Level Monitoring Committee under Kerala Conservation of Paddy Land and Wet Land Act 2008 v. Ali Akbar (2015 (1) KLT 906 (D.B.)).54. The learned counsel for the respondents would contend that the Jalaja Dileep does not contain any passing observations in the nature of obiter to brush aside the definitive pronouncements of the Apex Court having vital baring on the issue in question.55. The learned counsel has submitted that the Wetland Act has not provided for any particular format according to which the data bank is to be prepared. Once the property is reflected in the data bank its conversion not in the manner known to law even prior to 2008 does not ipso facto change the character of the land so long as it is capable of being cultivated as could be seen from Exhibit P3 issued by the Convener of the Local Level Monitoring Committee (LLMC/authority). The learned counsel has also referred to the reply affidavit in W.P.(C)No.26709/2014 to contend that there was no uniformity in preparing the data banks.The Government:56. The Government being a party in most of the Writ Petitions on its behalf the learned Government Pleader has strenuously contended that both the Wetland Act and KLUO have application and that Jalaja Dileep has clinched the issue. He has contended that in the following decisions mostly relied on the by the petitioners the Court has not considered the impact of KLUO on conversion of the land: Jayakrishnan v. District Collector & Ors. (2009 (1) KLT 123 = 2008 (4) KHC 514) Praveen v. Land Revenue Commissioner (2010 (2) KLT 617) Sunil & Anr. v. Killimangalam- Paanjaal 5th Ward Thrissur & Ors. (2012 (4) KLT 511 = 2012 (4) KHC 568) Joseph John v. Land Revenue Commissioner (2014 (1) KLT 706) and Mohammed Abdul Basheer v. State of Kerala (2012 (3) KLT 86).57. The learned Government Pleader has drawn my attention to Order 6(2) of the KLUO. He has submitted that there is no cleavage of judicial opinion in Praveen and Jalaja Dileep. In this regard the learned counsel has laid emphasis on the observations of the learned Division Bench in paragraphs 18 19 and 20 of Praveen. The learned Government Pleader has also contended that unless the petitioners establish on the strength of documentary proof that the land has not been cultivated since 1964 they cannot avoid the application of the provisions of the KLUO. In this regard the learned Government Pleader has drawn my attention to Ruby Soney v. State of Kerala (2014 (1) KLT 198) and Dileep Kumar v. State of Kerala (2014 (4) KLT 200). The learned Government Pleader has also laid emphasis on S.13 of the Act to contend that the Collector has the power to restore the land to its agricultural use when it is brought to his notice that the user of the property has been converted without any authority.58. Eventually referring to S.393 of the Kerala Municipality Act and Rule 6 of the Kerala Panchayat Building Rules the learned Government Pleader has submitted that the Government has contemplated an amendment to the Wetland Act to the effect that the lands which stood converted prior to 12.08.2008 should be regularized so that they can be put to non-agricultural uses.W.P.(C)No.26709/201359. The learned counsel for the respondents has contended that as per Exhibit P8 the very document produced by the petitioner a part of the land is still shown as paddy land. In terms of the ratio laid down by the learned Division Bench of this Court in Adani it is incumbent that the petitioner obtained the necessary approval or consent from the LLMC. According to him unless the revenue authorities effect the necessary corrections regarding the nature of the land the Local Self Governments cannot grant any building permit. In this regard the learned counsel has placed reliance on the affidavit filed by the Secretary. He has further submitted that the Agricultural Officer has filed a report to the effect that the land is still capable of being cultivated.W.P.(C)No.4943/201560. The learned counsel for the respondents has drawn my attention to Rule 6 of Kerala Panchayat Building Rules apart from the provisions of the KLUO. The learned counsel has laid specific emphasis on paragraphs 17 and 18 of the Jalaja Dileep to hammer home the point that only paddy land can be converted but not wet land. According to him conversion of paddy land is permissible only for residential purposes whereas the petitioner intends to raise commercial structures. He has also contended that in terms of S.5(4) of the Act the LLMC has a vital role to play.61. Heard the learned counsel for the petitioners the learned counsel for the respondents as well as the learned Government Pleader apart from perusing the record.ISSUES:1. Whether KLU Order 1967 has been superseded by the Wetland Act 2008?2. What are the respective spheres of KLU Order 1967 and Wetland Act 2008 if they both subsist on the statute book?3. Whether the judicial findings in Jalaja Dileep are mere obiter dicta?Discussion:62. The synthesis of all the issues is the interplay of the Wetland Act and KLUO both of which having their legislative sources at different levels govern the issue of the preservation and sustenance of agricultural lands and wetlands essentially with a view to protecting and promoting food crops including paddy. In essence the issue boils down to this: Whether KLUO has been subsumed in or obliterated out of existence by the latter enactment the Wetland Act or do they still simultaneously operate in different spheres.63. In Praveen a learned Division Bench has subjected both the Act and KLUO to threadbare analysis. Benefiting from the labour of the learned Division Bench I may quote for the purpose of elucidation of the statutory provisions from Praveen (supra) in extenso saving the ratio of the said judgment for later consideration.Statutory Scheme:An Analysis of KLU Order 1967:64. The Kerala Land Utilization Order 1967 was issued by the Government of Kerala in exercise of the powers conferred under sub-section (1) and clause (b) of sub-section (2) of S.3 of the Essential Commodities Act 1955 (Central Act 10 of 1955) read with the notification of the Government of India in the Ministry of Food and Agriculture No.S.R.O.3950 dated 9th December 1957 and with the prior approval of the Central Government. The lexical provision Order 2(b) defines the term “Food Crops” as follows:“Food Crops” includes paddy fish sugarcane vegetables tapioca yam tea coffee cardamom pepper groundnut cocoa and banana plantain.”65. Order 3 confers on the Government the power to require a landholder to grow specified crops; further Order 4 empowers the District Collector to issue notice to any holder of land to bring it under cultivation. If the landholder fails to comply with the directive of the District Collector either under Order 3 or 4 his right to cultivate the land can be alienated by the said authority through public auction or otherwise ordinarily for a period of three years. One of the principal provisions is Order 6 which reads as follows:“6. Land cultivated with any food crop not to be cultivated with any other food crop: (1) No holder of any land which has been under cultivation with any food crop for a continuous period of three years immediately before the commencement of this Order shall convert or attempt to convert or utilise or attempt to utilize such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector.(Explanation.-- For the purpose of this sub-clause and sub-clause (2) removal of tree-growth whether partial or total on any land cultivated with cardamom shall be deemed to be an attempt to convert or utilise such land for a purpose other than cultivation of cardamom.(2) No holder of any land who cultivates any land with any food crop for a continuous period of three years at any time after the commencement of this Order shall after the said period of three years convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector-.Provided that except in the case of lands under cardamom cultivation no permission under sub-clause (1) of sub-clause (2) shall be necessary where the cultivation for which the land is converted or attempted to be converted or utilised or attempted to be utilized is paddy cultivation or fish culture:Provided further that the lands under cultivation of paddy should not be converted or attempted to be converted or utilised or attempted to be utilised for fish culture permanently but only seasonally.”66. Order 7 of KLUO mandates that if a landholder is making efforts to contravene the provisions of Order 6 the Collector may call upon such person to cultivate the land with those food crops which were under cultivation in the land in the last three years in terms of sub-clause (1) or sub-clause (2) of Order 6. Significantly if the change of crop leads to cultivation of paddy no notice shall be issued compelling the landholder to raise only the previous crops. Non-compliance with the notice of the Collector may lead to sale of the landholder’s right to cultivation in terms of Order 5. Order 8 deals with the failure of purchaser to cultivate; Order 9 with the power of the Collector to arrange cultivation in certain cases whereas Order 10 deals with the eviction of the purchaser. Orders 11 and 14 are the remedial provisions of appeal and revision. Order 12 empowers the collector to use reasonable force for securing compliance with any order made by him under the Order. As per Order 13 any sums due to the Government shall be recoverable as arrears of land revenue.67. It may further be appreciated that the Agriculture (NCA) Department Government of Kerala in course of time issued Notification No.G.O.(Rt.) No. 157/2002/AD dated 05.02.2002 containing instructions to be followed for implementation of the KLU Order wherein conversion for construction of houses for individuals is permitted. The applications for conversion are required to be considered and disposed of by Revenue Divisional Officers or District Collectors in accordance with the provisions of the KLUO and related standing instructions. The Land Revenue Commissioner is to hear appeals and the Government (in the Agriculture Department) is required to exercise revisional powers as provided in the KLUO. District Collectors shall ensure that the conversions which are likely to render irrigation investments infructuous are not allowed. Similarly large scale conversion for Commercial purpose should be discouraged. It is further stipulated that conversion of land for construction of houses for individuals up to 5 cents is to be generally allowed.68. The notification also mandates that the revenue machinery at the taluk and village-level should be activated to ensure that in future conversions or attempted conversions without sanction are promptly detected and proceeded against. Conversions should not be presented as a ‘fait accompli’.An Analysis of Wetland Act:69. When we examine the Wetland Act it is an Act to conserve the paddy land and wetland and to restrict the conversion or reclamation thereof in order to promote growth in the agricultural sector and to sustain the ecological system in the State of Kerala. As per the Preamble the Government came to notice that indiscriminate and uncontrolled reclamation and massive conversion of paddy land and wetland are taking place in the State and since there is no existing law to restrict effectively the conversion or reclamation of paddy land Government was satisfied that it is expedient in public interest to provide for the conservation of paddy land and wetland and to restrict the conversion or reclamation thereof in order to promote agricultural growth to ensure food security and to sustain the ecological system in the State of Kerala. As per S.1 of the said Act it came into force at once i.e. from 12.08.2008.70. The lexical provision S.2(iii) comprehensively defines the expression ‘conversion’ as the situation whereby the land that has been under paddy farming and its allied forms like drainage channels ponds canals bunds and ridges is put to use for any other purpose. Clauses (xii) and (xviii) of the Section define ‘paddy land’ and ‘wet land’ thus:“(xiii) “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;(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 characterized 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; “71. Insofar as the expression ‘reclamation’ is concerned it is tautologically defined as an act or series of acts whereby a paddy land or a wetland as defined in the Act is converted irreversibly and in such a manner that it cannot be reverted back to the original condition by ordinary means.72. Section 3 of the Act prohibits conversion or reclamation of paddy land on and from the date of commencement of the Act i.e. from 12.08.2008 except in accordance with the provisions of the Act. S.4 speaks of incentives for paddy cultivation; S.5 of the constitution of the Local Level Monitoring Committee (LLMC) apart from enumerating the powers of the Committee. In fact the Committee inter alia can recommend for the reclamation of paddy land for public purpose or for construction of residential building for the owner of the paddy land with a rider that it shall not recommend for filling up of paddy land of more than ten cents in a Panchayat or five cents in a Municipality or Corporation as the case may be for the construction of residential building for the owner of the paddy land. It can also 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 whether there are any violations of the provisions of the Act. Under sub-section (4) of S.5 the Committee has been cast with the duty of preparing the data-bank with the details of the cultivable paddy lands and wetlands within the area of jurisdiction of the Committee with the help of certain agencies.73. As has been observed in Jalaja Dileep to ensure proper implementation of objectives the Act envisages the constitution of Committees at three different levels; i.e. Local Level Monitoring Committee (S.5) State Level Committee (S.8) and District Level Authorized Committee (S.9). Besides it Wetland Act also provides under S.7 of the Act for the reporting officers who are Agriculture Officers vested with responsibility to report the Revenue Divisional Officer as well as to Committees regarding any act in violation of provisions of the Act.74. Indeed the LLMC is empowered to recommend to the State-Level Committee or the District-Level Authorized Committee as the case may be the reclamation of paddy land for public purpose or for construction of residential buildings for the owner of the land subject to condition of fixing the extent of the land to be so utilized. The State-Level Committee has to scrutinize each application recommended by the Local-Level committee for filling up or reclamation of paddy land for public purpose. It should examine in detail if alternative land is available in the area for the purpose and the ecological changes that may occur from reclamation (vide Jalaja Dileep (supra)).75. Moving further from Sections 6 to 10 of the Wetland Act which deal with the internal mechanism of the Committee and the Government’s regulatory role we may focus on S.11 which prohibits reclamation of wetland. It reads as follows:“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 therefrom:Provided that nothing contained in this section shall affect the removal of slurry and mud to maintain the ecological condition of such wetland. “76. Section 12 of the Wetland Act specifies the method of appointment of the authorised officers apart from delineating their powers whereas S.13 enumerates the powers of the District Collector.77. The cornerstone of the enactment is S.14 which prohibits the local authorities from granting any licence or permit to any person to construct in a paddy land or a wetland converted or reclaimed in contravention of the provisions of the Wetland Act. It is profitable to extract the said provision which reads as follows:“14. Refusal of licence by the Local Authority.-- Notwithstanding anything contained in the Kerala Panchayat Raj Act 1994 (13 of 1994) or in the Kerala Municipality Act 1994 (20 of 1994) no Local Authority shall grant any licence or permit under the said Act for carrying out any activity or construction in a paddy land or a wetland converted or reclaimed in contravention of the provisions of this Act. “78. If we examine the statutory scheme further it is evident that Sections 15 and 16 of the Act contain the provisions concerning direction to cultivate paddy land that has been left fallow. S.17 provides for the mechanism to evict persons to whom the right to cultivate a paddy land has been entrusted whereas S.18 deals with the special powers of the Collector. On the other hand S.19 deals with the power of entry and seizure; S.20 with confiscation of vessel vehicle etc. S.21 being the remedial provision of appeal against confiscation. The discussion of the rest of the provisions may not be necessary for our purpose.Do the Act and Order Conflate or Conflict?79. From the scheme of both the KLUO and the Wetland Act it is evident that the former is a piece of subordinate legislation brought about to ensure the continuous cultivation of food crops. When the Government has realised that mere insistence on produce without a proper mechanism in place to protect the land from diversion is futile the State Legislature has come up with the Wetland Act. The Act undoubtedly is a measure to overcome the shortcomings found in the KLUO which is only an enabling secondary legislation. As has already been adverted to the preamble and the aims and objects of the Act make it manifestly clear that the KLUO has failed to achieve the desired objective compelling the Legislature to go for a comprehensive legislation with teeth.80. Until 11.08.2008 KLUO had been holding the field in relation to agricultural lands wherein food crops were raised. With the introduction of the Act paddy lands have been brought out of the purview of the KLUO. Before proceeding further it can safely be said that now both the pieces of legislation hold the field in their respective spheres though. There arises however certain conflict concerning the relevance of either of the provisions in putting certain lands to purposes other than agriculture a case in point being using the land for raising structures. For resolving the issue we may with profit survey the precedential precincts of the issue based on the decisions cited at the bar by the respective learned counsel.An Analysis of the Cited Case Law:81. In Jayakrishnan (supra) this Court has held that it is for the competent authority to enquire whether it is a paddy land or wet land and if on enquiry it is found that the land is not paddy land or wet land the said authority is competent under the provisions of the Kerala Land Utilization Order to deal with the same. In Hajee Abubacker (supra) this Court has held that no Local Authority shall grant any licence or permit for carrying out any activity or construction in a paddy land or a wet land converted or reclaimed in contravention of the provisions of the Wetland Act. It has in fact held that with the provisions of the Act in force the authorities ought not to have passed orders on an application under the KLUO. In Shahanaz Shukkoor (supra) the petitioner could show that her land was surrounded by lands on which buildings were being raised apart from establishing that a part of her own land had a building with the approval of the Panchayat. Under those circumstances this Court has held that there is no reason to hold that the petitioner has to obtain the decision of the committee under the Act to put the land to use for the purpose of constructing a building.82. In Praveen (supra) a learned Division Bench of this Court has subjected the KLUO as well as the Wetland Act to threadbare analysis and discussion. It has to begin with approved the ratio of the judgments rendered by learned Single Judges in Jayakrishnan Shahanaz Shukkoor and Hajee Abubacker. The learned Divison Bench has held that the application of the Act is confined to paddy and wet lands alone. In fact the learned Division Bench has gone on to observe thus:“[i]n respect of paddy land and wet land as defined under the Act even if an application was made before appropriate authority under the Land Utilization 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 Sections 3 and 11 is against reclamation or conversion of the paddy land and wetland.”83. In Praveen it is further held that except in the case of paddy land and wet land the provisions contained in the Land Utilization Order still survive in respect of the other food crops. Put differently since the Wetland Act confines its application to paddy and wet lands restriction imposed under Order 6 of the KLUO in respect of other food crop will continue to be in operation; any application for conversion has to be dealt with by the District Collector in accordance with the provisions of the KLUO. In Praveen it is eventually held that if it is held on enquiry that it is not a paddy land or wet land but cultivated with crops other than paddy necessarily the authority under the KLUO will have to process the application in terms of the provisions contained therein and dispose of the same.84. In Jafarkhan (supra) another learned Division Bench of this Court has bemoaned the fact that people with muscle and money power and political or official patronage have been converting paddy land in violation of the KLUO and that while such conversions got regularised the less influential nearby owners have their paddy and wet lands helplessly rendered unfit for any use. It is eventually held that whenever and wherever paddy or wet land has become unfit for viable cultivation such land should be permitted to be converted for suitable use instead of allowing it to be retained as waste land.85. In Asharaf K.K. (supra) this Court has observed that to apply the provisions of the Act the land should be included in the Data Bank. In Aishabeevi (supra) the Court has initially observed that the main thrust of the respondent’s argument is that no competent authority has passed any order so far to convert the above said paddy land to garden land or to reclassify the land; thus the property continued to remain in the same classification as ‘Nilam’ in the revenue records and title deed. It is therefore an illegally converted land and it cannot be used for any purpose other than agricultural purpose especially in the absence of an order under KLUO explicitly permitting conversion or reclamation. Repelling the respondent’s contentions a learned Division Bench of this Court has observed that the land even according to the respondents stood converted prior to the commencement of the Wetland Act. It has further observed that not only at present but also at the time of the commencement of the Wetland Act the property in question was not lying as paddy land. In other words the learned Division Bench has opined that as there was no conversion subsequent to the enforcement of the Wetland Act the land could not be brought within the purview of the said Act and ipso facto there cannot be any impediment for constructing a building thereon.86. Aishabeevi (supra) has also approved the finding of a learned Single Judge in Shahanaz Shukkoor (supra) that mere description of an item of property as ‘Nilam’ 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. It has further been observed that the legislature was aware of incapability or inefficiency of the KLUO to control the conversion of paddy and wet lands and that merely on a premise that no order under KLUO permitting conversion of paddy land has been passed or produced it cannot legally be presumed that the land which stood reclaimed as on the date of the commencement of the Wetland Act is an illegally converted land.87. Very recently in Adani Infrastructure (supra) a learned Division Bench has subjected the issue to an in depth analysis and held that in the absence of data bank the draft version of it has to be relied on for the purpose of determining the nature of land.88. Further still more recently in Archana Varghese (supra) the issue is with regard to the permission to be obtained under Order 6 of the KLUO for utilizing converted paddy land before the Wetland Act came into being. A learned Single Judge has observed that the powers referable to Orders 3 and 4 of KLUO indicate that the provisions are only enabling provisions to secure the objectives of the S.3 of the E.C. Act. On appreciation of the facts Archana Varghese (supra) addressed the following question: When a paddy land has been converted before the Wetland Act and not included in the data bank as a paddy land does the land holder require any permission in terms of Order 6 of KLUO to utilise such converted paddy land?89. Answering the said question the learned Single Judge has observed that there is no provision in the KLUO to enable the Collector to compel a person to cultivate any other food crops other than the food crops which were under cultivation that the provisions under the KLUO put a fetter or burden on the land and that 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 S.3 of the E.C. Act. It is further held that when land was converted without obtaining permission the Collector necessarily ought to have exercised his power under Clause 7 of KLUO at the relevant point of time and that when land becomes unfit for raising paddy the enabling power will become otiose. Law does not it is held compel a person to do that which he cannot possibly perform. Further is the observation that KLUO in the present form is archaic antiquated and not suited to the current time to sustain agricultural landscape.90. It can be said without fear of contradiction that Jalaja Dileep (supra) is the pivot around which all the arguments of the learned counsel on either side have revolved. The learned counsel for the most of the petitioners have advanced either of the following arguments against the application of the ratio of Jalaja Dileep: (1) That Jalaja Dileep is in the context of Kerala Land Tax Act thus having no application to the facts of the present batch of cases; (2) that the observations made in Jalaja Dileep at best are obiter dicta having no binding effect.91. The appeals in Jalaja Dileep arising from this Court have raised before the Hon’ble Supreme Court the question whether the order of conversion of land passed by the Tahsildar under Kerala Land Tax Act would circumvent the provisions of remedial legislations such as the Wetland Act and the KLUO.92. In Jalaja Dileep the facts in brief are that concerning the lands of the respondent landholders the Agricultural Officer issued a certificate to the effect that the land in question was recorded as a converted land in ‘the Paddy Wetland’ in the survey records in Ernakulam Village; additionally the Village Officer also issued a possession certificate reporting that the land in question was actually a dry land. The respondent landholder filed a W.P.(C)No. 11784/2012 before this Court seeking a writ of mandamus to the authorities to effect necessary corrections in the Basic Tax Register and change the nature of lands from ‘wetland’ to ‘dryland’. When the Writ Petition was allowed the Government aggrieved filed an intra-court appeal but that was dismissed. Thus was the matter eventually taken to the Apex Court.93. In Jalaja Dileep the Hon’ble Supreme Court has firstly appreciated the interplay between the KLUO and the Wetland Act secondly drawn their respective boundaries later noted the impact of the governmental orders in their implementation and eventually held that both KLUO and the Wetland Act hold the fields simultaneously albeit in their allotted respective spheres.94. The Apex Court has eventually held that if a property is included in the Data Bank or the Draft Data Bank prepared under the Act as a “Paddy Land” or “Wetland” and the classification of land is noted as “Nilam” in revenue records the provisions of the said Act would apply. It has also further held that if the property is not included in the Data Bank as “Paddy Land” or “Wetland” as defined under the Wetland Act it is still governed by the provisions of KLUO. Thus the State has two statutes: KLUO and the Wetland Act each dealing with delineated areas with respect to preservation management and process of reclamation of agricultural and paddy land for any other legitimate use.95. Putting the issue in perspective the Apex Court in the final analysis has held that the rectification envisaged by S.18 of Kerala Land Tax Act can only be in respect of arithmetical or clerical error that too in the order of determining the tax due. S.18 cannot be made use or the same cannot be taken as a means to effect conversion of the nature of the land bye-passing the competent authority and the procedure stipulated under the KLUO and the Wetland Act.96. Very recently a learned Division Bench of this Court placing reliance on Jalaja Dileep (supra) has rendered a judgment in The Local Level Monitoring Committee & Ors v. Mariumma & Ors.(2015 (2) KLT 516). The learned Division Bench has found the admitted factual position to be that though the lands of the respondents also were included in the draft data bank prepared under S.5(4) of the Wetland Act on a consideration of a representation the LLMC itself resolved to modify the entries in the draft data bank and accordingly modified the entry showing the land as converted land. In that context their Lordships have held that once the Wetland Act is rendered inapplicable to any lands automatically the provisions of the KLUO would apply.Legal Issues:The Power of Precedent -- A Comparative Perspective:97. The doctrine of binding precedent or stare decisis lies at the heart of the English legal system. The doctrine refers to the fact that within the hierarchical structure of the English courts a decision of a higher court will be binding on a court lower than it in that hierarchy. In general terms this means that when Judges try cases they will check to see if a similar situation has come before a court previously. If the precedent was set by a court of equal or higher status to the court deciding the new case then the Judge in the present case should follow the rule of law established in the earlier case. Where the precedent is from a lower court in the hierarchy the Judge in the new case may not follow but will certainly consider it. (vide Pg.63 of The English Legal System by Gary Slapper & David Kelly 5th Edn.)98. The phrase stare decisis is itself an abbreviation of the Latin phrase stare decisis et non quieta movere which means “to stand by decisions and not to disturb settled matters”. What the doctrine of precedent according to Glanville Williams declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur but the legally material facts may recur and it is with these that the doctrine is concerned. Glanville Williams has suggested the following formula to appreciate the ratio decidendi in the back drop of material facts thus:“Suppose that in a certain case facts A B and C exist and suppose that the court finds that facts B and C are material and fact A immaterial and then reaches conclusion X (e.g. judgment for the plaintiff or judgment for the defendant). Then the doctrine of precedent enables us to say that in any future case in which facts B and C exist or in which facts A and B and C exist the conclusion must be X. If in a future case A B C and D exist and the fact D is held to be material the first case will not be a direct authority though it may be of value as an analogy.”(Glanville William’s Learning the Law 9th ed.1973)99. In all the common law countries including India the doctrine of binding precedent has a universal application with subtle variations though. Under the English legal system between 1898 and 1966 the House of Lords considered itself absolutely bound by its past decisions. In 1966 the House of Lords issued Practice Statement (Judicial Precedent) ((1966) 1 W.L.R. 1234 (H.L.) declaring that it is not bound. In civil law countries such as France and Germany the statute has precedence over precedent. In most of the common law countries notably Canada and Australia since the abolition of the right of appeal to the Privy Council the Apex Courts have declared that they need not follow their own decisions when sufficient grounds exist for departure.100. Contrasted with English system American judicial system has to contend with a written constitution with a very difficult process of amendment. Coupled with this is the fact that all the nine Judges (presently) sit en banc to decide cases mostly of constitutional significance. I may observe here that in most other jurisdictions India being one of them the courts even at the highest level sit in panels. West’s Encyclopedia of American Law (2nd Edn. Vol.9 Pg.308) explains the position thus:In the United States courts seek to follow precedent whenever possible seeking to maintain stability and continuity in the law. Devotion to stare decisis is considered a mark of judicial restraint limiting a Judge’s ability to determine the outcome of a case in a way that he or she might choose if it were a matter of first impression Justice Louis D. Brandeis emphasized the importance of this when he wrote “Stare decisis is usually the wise policy because in most matters it is more important that the applicable rule of law be settled than that it be settled right” (Burnet v. Coronado Oil & Gas Co. 285 U.S. 393). The U.S. Supreme Court rarely overturns one of its precedents but when it does the ruling usually signifies a new way of looking at an important legal issue.101. From the annals of the American judicial history we can see that the most famous reversal of precedent is Brown v. Board of Education (347 U.S. 483) in which the Supreme Court repudiated the “separate but equal” doctrine of Plessy v. Ferguson (163 U.S. 537).102. Cross & Harris in Precedent in English Law (4th Edn.) have observed that when the difficulty of amending the Constitution of the United States of America is borne in mind it is scarcely surprising that the Supreme Court has become less and less rigorous in its adherence to the principle of stare decisis. In fact it is quite revealing to examine what Frankfurther J had to say in Graves v. New York 306 U.S. 466 (1939):“[T]he judicial history of this doctrine of immunity is a striking illustration of an occasional tendency to encrust unwarranted interpretations upon the Constitution and thereafter to consider merely what has been judicially said about the Constitution rather than to be primarily controlled by a fair conception of the Constitution. Judicial exegesis is unavoidable with reference to an organic act like our Constitution drawn in many particulars with purposed vagueness so as to leave room for the unfolding future. But the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.” (emphasis added)103. Insofar as our judicial system is concerned though the polity is federal the judiciary is unitary in character albeit without any administrative subordination among constitutional courts. The Constitution of India has enshrined the principle of binding precedent in Article 141 which however does not as has been held in a catena of judgments and commentaries of eminent jurists mandate that the very Supreme Court is bound by its own previous pronouncements. Nevertheless a syntactic analysis of Article 141 of the Constitution may lend to some discussion on the issue for the expression “shall be binding on all courts” does not have the exclusionary ‘other’ before ‘all courts’. Be that as it may it is not the province of this Court to dwell on the issue.What is Ratio or Ratio Decidendi?104. Ratio decidendi or ratio for short is a Latin expression which literally means “the reason for deciding”. Black’s Law Dictionary defines it as: 1. The principle or rule of law on which a court’s decision is founded; 2. The rule of law on which a later court thinks that a previous court founded its decision; a general rule without which a case must have been decided otherwise. The lexicon quotes from Glanville Williams’s Learning the Law (P.75 11th Edn.1982) to the effect: “The phrase ‘the ratio decidendi of a case’ is slightly ambiguous. It may mean either (1) the rule that the Judge who decided the case intended to lay down and apply to the facts or (2) the rule that a later court concedes him to have had the power to lay down.” It further quotes from Rupert Cross & J.W. Hariss’s Precedent in English Law (Pp.65-66 4th Ed.1991) to the effect: “There are two steps involved in the ascertainment of the ratio decidendi. First it is necessary to determine all the facts of the case as seen by the Judge; secondly it is necessary to discover which of those facts were treated as material by the Judge.” Ratio decidendi (pi. rationes decidendi) is the rationale of judgment; a principle underlying and determining a judicial decision (Oxford English Dictionary OUP 2009).105. In C.I.T. v. Sun Engg. Works (P) Ltd. ((1992) 4 SCC 363) the Hon’ble Supreme Court has observed:“39. [I]t is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court divorced from the context of the question under consideration and treat it to be complete ‘law’ declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment divorced from the context of the questions under consideration by this Court to support their reasonings.”106. In Punjab Land Development and Reclamation Corporation Ltd. v. Labour Court ((1990) 3 SCC 682) it is observed as follows:“44. An analysis of judicial precedent ratio decidendi and the ambit of earlier and later decisions is to be found in the House of Lords’ decision in F.A. & A.B. Ltd. v. Lupton (Inspector of Taxes) (1972 AC 634) Lord Simon concerned with the decisions in Griffiths v. J.P. Harrison (Watford) Ltd. (1963 AC 1) and Bishop (Inspector of Taxes) v. Finsbury Securities Ltd. (1966 (3) All. ER 105 (HL)) with their interrelationship and with the question whether Lupton case fell within the precedent established by the one or the other case said:‘... what constitutes binding precedent is the ratio decidendi of a case and this is almost always to be ascertained by an analysis of the material facts of the case—that is generally those facts which the tribunal whose decision is in question itself holds expressly or implicitly to be material.”(as quoted in Balwant Rai Saluja v. Air India Ltd. (2014 (4) KLT SN 4 (C.No.4) SC = (2014) 9 SCC 407)”107. In Islamic Academy of Education v. State of Karnatakaa (2003 (3) KLT SN 88 (C.No.118) SC = (2003) 6 SCC 697) Constitution Bench of the Hon’ble Court has felicitously observed that the ratio decidendi of a judgment has to be found out only on reading the entire judgment. In fact the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be read in the context of what is set out in the judgment and not in isolation. In case of any doubt as regards any observations reasons and principles the other part of the judgment has to be looked into. By reading a line here and there from the judgment one cannot find out the entire ratio decidendi of the judgment.What is Obiter Dictum?:108. Obiter dictum or obiter for short is a Latin expression which literally means “something said in passing”. Black’s Law Dictionary defines it as a judicial comment made while delivering a judicial opinion but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive). It is often shortened to dictum or less commonly obiter. The lexicon further quotes William M. Lile et al in Brief Making and the Use of Law Books 304 (3 rd edn. 1914) to the effect: “Strictly speaking an ‘obiter dictum’ is a remark made or opinion expressed by a Judge in his decision upon a cause ‘by the way’— that is incidentally or collaterally and not directly upon the question before the court; or it is any statement of law enunciated by the Judge or court merely by way of illustration argument analogy or suggestion. In the common speech of lawyers all such extra judicial expressions of legal opinion are referred to as ‘dicta’ or ‘obiter dicta’ these two terms being used interchangeably.109. In Arun Kumar Aggarwal v. State of M.P. (2011 (3) KLT Suppl. 32 (SC) = AIR 2011 SC 3056 = (2014) 13 SCC 707) the Hon’ble Supreme Court has examined the semantic significance of the term ‘obiter dicta” with reference to various lexicons and standard commentaries like the Halsbury’s Laws of England and Corpus Juris Secondum as well as the American Jurisprudence (2d Vol. 20 at p. 437) according to which obiter dictum seems to be an expression in an opinion which is not necessary to support the decision reached by the court is dictum or obiter dictum. The definition echoes substantially what has been stated in Wharton’s Law Lexicon (14th Edn. 1993) on the same expression.110. As per P. Ramanatha Aiyar’s Advanced Law Lexicon (3rd Edn. 2005) the expression “observation” means a “view reflection; remark; statement; observed truth or facts; remarks in speech or writing in reference to something observed”.111. Further Words and Phrases Permanent Edn. Vol.29 defines the expression “obiter dicta” or “dicta” thus:“Dicta are opinions of a Judge which do not embody the resolution or determination of the court and made without argument or full consideration of the point are not the professed deliberate determinations of the Judge himself; obiter dicta are opinions uttered by the way not upon the point or question pending as if turning aside for the time from the main topic of the case to collateral subjects; it is mere observation by a Judge on a legal question suggested by the case before him but not arising in such a manner as to require decision by him; ‘obiter dictum’ is made as argument or illustration as pertinent to other cases as to the one on hand and which may enlighten or convince but which in no sense are a part of the judgment in the particular issue not binding as a precedent but entitled to receive the respect due to the opinion of the Judge who utters them; discussion in an opinion of principles of law which are not pertinent relevant or essential to determination of issues before court is ‘obiter dictum’.”(as quoted in Arun Kumar Aggarwal (supra)).112. Corpus Juris Secundum (Vol.21 at pp. 309-12) opines that such an expression or opinion as a general rule is not binding as authority or precedent within the stare decisis rule even on courts inferior to the court from which such expression emanated no matter how often it may be repeated. So is the opinion of the celebrated cerebral work of English law Halsbury’s Laws of England (4th Edn.(Reissue) Vol.26 Para 574).113. After exhaustively surveying the juridical justifications of the common law concept of obiter dictum the Hon’ble Supreme Court in Arun Kumar Aggarwal (supra) has held thus:“34. In view of the above it is well settled that obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant pertinent or essential to decide the issue in hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment.”114. A Constitution Bench of the Supreme Court has served a word of caution that propositions wider than the case itself are not binding. (vide Krishena Kumar v. Union of India (AIR 1990 SC 1782)). To the same effect is the decision of a 3-Judge Bench in Orient Paper & Industries Ltd. v. State of Orissa (AIR 1991 SC 672) wherein it is held that general observations have no binding force. In Post Graduate Institute of Medical Education & Research v. K.L.Narasimhan ((1997) 6 SCC 283) a 3-Judge Bench has however left open the issue whether the obiter of larger Bench of the Supreme Court binds a smaller Bench of the same Court.115. Dias a Cambridge Scholar of international repute has put this decisional dilemma on the ratio of obiter in perspective by observing thus:“Pronouncements of law which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. Rationes and dicta tend to shade into each other. The former have law-quality and are binding on lower courts; dicta too have law-quality but are not binding at all. Vis-a-vis a higher court even the ratio decidendi of a lower court decision has only persuasive force like that of a dictum. It has been pointed out that some dicta are so authoritative that the distinction between ratio and dictum is reduced to vanishing point. Dicta which have no force are propositions stated by way of illustration or on hypothetical facts. Greater difficulties attend ruling of law which are subsequently relegated to the status of dicta by interpretation. The distinction in such cases between ratio and dictum is but a device employed by subsequent courts for the adoption or rejection of doctrine expressed in previous cases according to the inclination of the Judges. An example would be the treatment of Lord Atkin’s ‘neighbour’ proposition in subsequent cases.The weight accorded to dicta varies with the type of dictum. Mere causal expressions carry no weight at all. ‘Not every passing expression of a Judge however eminent can be treated as an ex cathedra statement’. On the other hand dicta which have been acted upon over the years may acquire increasing respect. A dictum may also be adopted as the ratio decidendi of a subsequent decision and will then acquire the authority of that tribunal. In Zeidman v Owen ((1950) 1 All. ER 290) Lord Goddard CJ said ‘If we thought that the dicta though obiter expressed the true construction of the Act we should feel we ought to follow them’. Finally a suggestion has been offered that a distinction be drawn between obiter dicta those irrelevant to the case and judicial dicta those relevant to some collateral matter but no part of the ratio. The latter will generally be more persuasive than the former.”(Pp. 143-144 Dias’s Jurisprudence 5th Edn.)116. The Constitution thus popularly stated is an organic instrument designed in contemporaneous settings but with the expectation that it should be abiding the nation’s political life. It is a cryptic code rather than a descriptive document. Its interpretation takes into its fold the temporal factors as the nation moves on in the path of progress even regress too. There can be instances where the ratio of a judgment though perfect at the time it was delivered may with the passage of time and with the change of morals and political outlook become incongruous and out of sync with the nation’s changing ethos. Dias recognises as has been acknowledged by the Hon’ble Supreme Court in State of Punjab v. Devans Modern Breweries Ltd. (2004 (1) KLT SN 72 (C.No.96) SC = (2004) 11 SCC 26) this possibility by observing thus:“Although a case has neither been reversed nor overruled it may cease to be ‘law’ owing to changed conditions and changed law: cessante ratione cessat ipsa lex. It is not easy to detect when such situations occur for as long as the traditional theory prevails that Judges never make law but only declare it two situations need to be carefully distinguished. One is where a case is rejected as being no longer law on the ground that it is now thought never to have represented the law; the other is where a case which is acknowledged to have been law at the time has ceased to have that character owning to altered circumstances. It is the latter that is under consideration. If the law-making function of courts is admitted then it would be easy to reject out-of-date precedents openly on the ground of changed conditions and not have to resort to the threadbare fiction that cases only reflect what always has been law.117. In fact the House of Lords in Miliangos v. George Frank (Textiles) Ltd. ((1976) A.C. 443) felicitously answered the riddle of taking note of the temptation of times to break the mould of a fossil like precedent. It has tellingly observed that ‘specifically courts which are bound by the rule of precedent are not free to disregard an otherwise binding precedent on the ground that the reason which led to the formulation of the rule embodied in such precedent seems to the court to have lost cogency’ thereby implying that the Apex Court can.The Summing up of Precedential Position:118. Examined in the light of the above precedential position it is to me evident that the ratio of Jalaja Dileep cannot be said to be obiter. In that case the Agricultural Officer issued a certificate to the effect that the land in question was recorded in the survey records as a converted land. Additionally the Village Officer also issued a possession certificate reporting that the land in question was actually a dry land. On the strength of these two documents the landholders demanded a change in the entry in the Basic Land Tax Register. The Hon’ble Supreme Court has held that the rectification envisaged by S.18 of Kerala Land Tax Act can only be in respect of arithmetical or clerical error that too in the order of determining the tax due. It cannot be used to effect conversion of the nature of the land bye-passing the competent authority and the procedure stipulated under the KLUO and the Wetland Act. In Jalaja Dileep as I understand the Apex Court has emphatically negative the collateral or oblique approach of correction of records to facilitate conversion of lands. In Jalaja Dileep the end result may be a correction in Land Tax Register; here it may be obtaining a building permit but both have the precondition of conversion of land. To stymie the subversive process of conversion in the name of correction of mere entries in the registers; the Hon’ble Supreme Court has held that the due procedure mandated under either the Wetland Act or KLUO is required to be followed as sine qua non for conversion. Thus in the final analysis I am inclined to hold that the ratio of Jalaja Dileep is not an obiter dictum on the issue raised in the present batch of Writ Petitions.119. Further from all the above precedents if we cull out consistent principles of law on the principal issue of the binding nature of the procedural safeguards incorporated in the Wetland Act and KLUO firstly we should admit that there are certain jarring judicial notes in some judgments. Nevertheless now the issue does not any more admit of cleavage given the fact that the Apex Court has rendered a comprehensive judgment.120. To begin with in Praveen it is emphatically held that in respect of paddy land and wet land even if an application was made before appropriate authority under KLUO and when 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 the Wetland act. It is further held that except in the case of paddy land and wet land the provisions contained in the Land Utilization Order still survive in respect of the other food crops.121. Jafarkhan (supra) strikes a slightly different note by holding that whenever paddy or wet land has become unfit for cultivation viably such land should be permitted to be converted for suitable use instead of allowing it to be retained as waste land; so is the case with Aishabeevi (supra) which has held that 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. Archana Varghese which has held that KLUO in the present form is archaic antiquated and not suited to the current time to sustain agricultural landscape in my respectful opinion may have become untenable especially in the face of findings in Jalaja Dileep (supra).122. On this issue Jalaja Dileep has the final word: If a property is included in the Data Bank or the Draft Data Bank prepared under the Wet Land Act as a “Paddy Land” or “Wetland” and the classification of land is noted as “Nilam” in revenue records the provisions of the said Act would apply. If the property is not included in the Data Bank as “Paddy Land” or “Wetland” as defined under the Act it is still governed by the provisions of KLUO.123. Following the above decision is the judgment rendered recently by a learned Division Bench of this Court in The Local Level Monitoring Committee (supra) wherein it is held that once the Wetland Act is rendered inapplicable to any lands automatically the provisions of the KLUO would be applicable. As the learned Division Bench has analysed the ratio of Jalaja Dileep and rendered thus the said proposition of law without doubt binds me.The Significance of Entries in Revenue Records:124. It is trite to hold that most of the times the entries in the revenue records do not reflect the present nature of the land. It does not mean that they can be wished away. The revenue entries apart from revealing the classification of land at the time the survey of the lands had been undertaken also serve many other statutory purposes including revenue augmentation. The change of entries in revenue records technically termed ‘mutation’ may at best be a ministerial job. Mutation follows the use of land reflecting the temporal impact on the land in question. On the other hand conversion of land is not a mere ministerial act; it is a conscious act of the authorities permitting the use of the land for purposes other than the assigned one. Thus unlike mutation the conversion precedes the land use.125. If any enactment specifies a specific mode or method of conversion of land the plea that notwithstanding the revenue entries the nature of the land stands changed or that the land has lost potential in the classified category cannot stultify the said statutory procedure nor do the acts of the landholders render the presumptive conversion a fait accompli. Inevitably there ought to be a statutory compliance concerning the conversion process before any person can take advantage of the change of nature of the land. If the nature of the land alone shall determine the enjoyment of the land in presenti it may in my view amount to putting a premium on statutory violation. I am therefore inclined to hold that for the purposes like using the agricultural land of whatever description—say paddy land wetland etc.—the landholder cannot circumvent the statutory stipulations concerning the conversion under the excuse that the land ceased to answer the description as contained in the revenue records. The landholder ought in short take recourse to the due process of conversion of land by way of change of entries under the relevant law before seeking civic permissions for illustratively construction purposes.Retroactive Effect:126. Indeed without much cavil I am inclined to hold that the Wetland Act is not retrospective in its application. Nevertheless if the authorities under the Act are of the opinion that the land ceased to bear the character described in the revenue records even before the Act came into force it necessarily gives rise to the presumption that the change of nature of the land was in violation of KLUO unless the landholder succeeds in establishing that the land was so even prior to 1967. In such an event the landholder shall move the machinery under KLUO for the necessary permission. On appreciation of the plethora of precedents cited above I am inclined to hold that the Wetland Act has neither subsumed nor obliterated the KLUO which still holds the field in its assigned sphere. To hammer home this aspect that the KLUO is still regnant we need no better illustration than the issuance of Notification No.G.O.(Rt.)No. 157/2002/AD by the Agriculture (NCA) Department Government of Kerala as recently as on 05.02.2002 which insists that the Conversions should not be presented as a ‘fait accompli’.127. Beginning from Praveen to Jalaja Dileep the judicial view is consistent: both the KLUO and the Wetland Act do have their application in their assigned spheres and that KLUO has not been rendered otiose. As such the discussion on the impact of S.14 of the Act or the alleged annihilation of KLUO may not fall for consideration.128. In the light of the above findings the contention of many a petitioner that once the land is not reflected in the data bank—draft or final—it shall be treated as non-agricultural property and that no further discretion is vested with the authorities to refuse the building permit cannot be accepted. It is also a consistent plea on the part of the petitioners that with passage of time especially owing to inaction of the authorities under KLUO at the earliest point of time when the land was put to nonagricultural purpose after the enactment of Wetland Act the authorities cannot resurrect KLUO. Regrettably this plea cannot be sustained. The landholder cannot in my view take the plea of antiquity concerning the conversion of land in violation of the statutory mandate. No person can be allowed to take advantage of his own wrong on the ground that it went unchecked for many years. Wine may become fine with time but not a violation unless there is a condoning method.129. Both Praveen and Jalaja Dileep are consistent. Statutory violation which is recurring in nature cannot be swept under a carpet of official apathy. It is also specious to suggest that what is protected in KLUO is food crop but not the land which is a state subject. It is too well known a cannon of constitutional construction that the incidental legislative trenching if at all of a field is permissible when the pith and substance of one field becomes a mere myth without the aid of the element in another field.130. Concerning the submission made by the learned Government Pleader that the Government has contemplated an amendment to the Wetland Act to regularise the conversions made prior to 12.08.2008 I may say that legislating is the sovereign function of the State and it cannot be a subject matter of judicial scrutiny unless an Act has already come into being.131. In some instances it is the grievance of the petitioners that while granting the building permit the civic authorities have imposed a condition of non-alienation of the building to be raised for a few years say ten years. If the landholder is otherwise entitled to conversion either under KLUO or the Act as the case may be I am of the considered opinion that such an extra-legal condition cannot be imposed. It is still to be observed that though no building permit is required for constructing a house if the extent is miniscule as has been prescribed under the relevant statutes this however does not absolve the landholders in the first place to have the conversion of the land if they desire to use it for the purpose other than the one reflected in the revenue records.132. In certain other cases the petitioners have ventilated their grievance that they have constructed the buildings after obtaining valid building permits but the authorities have taken a recalcitrant stand regarding the legality of structures post-construction. They have refused to give house number or provide other amenities. Indeed there is no gainsaying the fact that earlier this Court has on numerous occasions rendered judgments directing the authorities to give building permits if the nature of the land stood changed by 12.08.2008 when the Wetland Act came into force. In some other instances the authorities though not based on the judicial directive guided by the precedent have granted building permits. In all those instances it is inequitable and also impermissible for the authorities to negate their own permits and render impossible the position of those persons who bona fide acted on the very building permits.133. Answering all the three issues together I hold that KLUO has not been superseded by the Wetland Act; they both are in operation in their respective spheres and that the judicial findings of Jalaja Dileep are not obiter dicta.134. In the final analysis especially going by the ratio in Jalaja Dileep and Mariumma this Court disposes of the batch of Writ Petitions with the following declarations and directions:1. Both KLUO and Wetland Act 2008 do survive and continue to operate in their respective spheres.2. If the land has been converted without due process subsequent to 12.08.2008 the Civic Authorities shall be guided by S.14 of the Wetland Act and unless there is proper conversion of the land in terms of the provisions of the said Act the authorities shall not grant building permits etc.3. If the conversion without due process had been effected prior to 12.08.2008 the provisions of KLUO should apply and the civic authorities cannot entertain applications for building permits etc. unless the authorities under KLUO certify to the said effect.4. If any landholder has raised any structures or has been raising any structures under any valid building permit either on the basis of any judicial directive issued prior to the rendering of Jalaja Dileep (supra) by the Hon’ble Supreme Court or based on the building permit issued by the authorities essentially going by the ratio of the judgments of this Court holding the field prior to Jalaja Dileep those structures shall not be disturbed.With the above observations the batch of Writ Petitions stands disposed of. No order as to costs. As a sequel Miscellaneous Petitions if any pending in these Writ Petitions shall stand closed.