Kerala High Court Quashes State Circular Restricting Fee Exemption On Converted Paddy Land

The Kerala High Court recently quashed a circular issued by the State government, limiting fee exemption on converted paddy land not included in the data bank only to applications filed after 25th February this year.

A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly also directed the concerned authority to consider the applications submitted by the petitioners irrespective of the cut-off date fixed in the Circular for payment of fee within 2 months.

The State had initially decided to impose a fee to convert paddy lands not marked in the data bank based on the Kerala Conservation of Paddy Land and Wetland Act, 2008.

However, on February 25, 2021, the government exempted the owners of lands below 25 cents from paying the fee. A new circular was thereby issued on 23rd July stating that exemption does not apply to the applications made before February 25.

It is this circular that has been struck down by the Court. 

The question before the Court was the scope of the Circular in legal parlance, and whether it amounts to an interpretation of the provisions of the Rules, 2008 and the Schedule thereto.

It is by virtue of the powers conferred under the provisions of Section 27A(3), r/w Rule 12 (9) of the Rules 2008, fee/charge can be imposed by the Government and it was accordingly that the Schedule was introduced, and the consequential amendment was made to the Schedule.

As per the amended Schedule, reclamation of any paddy land up to 25 cents is not liable to be imposed with any fee w.e.f. 25.02.2021. 

The Court opined that the circular had transgressed into the arena of interpretation of the rules 2008, "which is the absolute prerogative of a court of law". Similarly, the issue in respect of the binding nature of a circular is no more res integra in view of several authoritative pronouncements of the Apex Court, it said.

After considering the settled principle of independence of Judiciary, the bench observed:

"...we have no hesitation to hold that the Circular issued by the State Government dated 23.7.2021, fixing the cut off date of 25.2.2021 is not binding on this Court."

The respondent's argument was that the cut off date fixed is a reasonable classification.  

However, the Court found that no object was sought to be achieved by making such a cut off date. In fact, even an application filed prior to the cut-off date and subsequent to the said cut off date would be considered by the statutory authority even at a later point of time and in that process two different sets of orders would be passed on similar matters.

It added:

"When the State Government intended to classify and exclude farmers holding up to 25 cents of unnotified paddy land from the payment of fee/charge for reclamation and utilisation of the same for other purposes other than paddy cultivation, such farmers constitute a class by themselves thus precluding the State from further re-classifying the homogeneous class of the same nature merely because the applications are submitted on different dates, which according to us would be nothing but an unreasonable and arbitrary classification, violative of Article 14 of the Constitution of India."

The Court reiterated that in the context of Article 14, all persons and things similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Any classification therein should be rational and founded on an intelligible differentia.

However, it was found that in the instant case there was no object sought to be achieved by differentiating the class of owners of land upto 25 cents on the basis of the date of the application submitted by them before the very same statutory authority. 

Accordingly, it was held that if such an interpretation is made to the Rules, the purpose sought to be achieved by the State Government by granting exemption from payment of a fee to the owners of the paddy field up to 25 cents would be lost, or rather defeat the said purpose.

"Therefore, in our considered opinion, the action of the State Government making an interpretation to the already constituted rules by issuing a circular directing the officers of the State to discharge their functions in a particular manner can never be sustained, being violative of all canons of law and beyond the comprehension of the Constitutional mandates." 

As such, the impugned government circular was set aside by the Court.

Constitutional Validity

The petitions also challenged the constitutional validity of section 27A to section 27D of the Kerala Conservation of Paddy land and Wetland Act, 2008 and the consequential provisions of the Kerala Conservation of Paddy land and Wetland Rules, 2008.

The Court noted that there were hundreds of similar pending writ petitions filed by owners of unnotified paddy lands, challenging the constitutional validity of the said provisions.

The Bench was further informed that several public interest writ petitions were also pending challenging the Constitutionality of the very same provisions on the ground that the State was not right in introducing such amendments relaxing the imperative conditions of the Act quite contrary to the legislative intentions and purpose of the Act.

However, the Court clarified that these questions were left open to be considered in the pending writ petitions. 

The Court also observed that Section 27A was introduced into the statute in order to enable the owner of any unnotified land who desires to utilise such land for residential or commercial or other purposes, to apply to the Revenue Divisional Officer for permission, in such manner as may be prescribed.

Advocates K. Mohanakannan, A.R. Pavitha and T.S Nejumuddin represented the petitioner while the respondents were represented by Special Government Pleader Renjith. 

Case Title: M.K Baby v. District Collector & Ors. and connected matters.

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