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Kerala High Court
P.R.Harikumar vs State Of Kerala on 30 June, 2011
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 30850 of 2007(S)


1. P.R.HARIKUMAR, ADVOCATE,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

2. SECRETARY TO GOVERNMENT,

3. COMMISSIONER OF REVENUE,

4. CHIEF CONSERVATOR OF FOREST

5. SUPERINTENDENT OF POLICE, KOTTAYAM.

6. DEPUTY SUPERINTENDENT OF POLICE,

7. CIRCLE INSPECTOR OF POLICE, MANIMALA.

8. HARRISONS MALAYALAM LTD.

9. K.P.YOHANNAN, MANAGING TRUSTEE &

                For Petitioner  :SRI.R.KRISHNA RAJ

                For Respondent  :SRI.A.M.SHAFFIQUE (SR.)

The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI

 Dated :30/06/2011

 O R D E R

A.K.Basheer & P.Q.Barkath Ali, JJ.

---------------------------------------------------- W.P.(C)Nos.30850 & 32628 of 2007, 6258, 18164 & 35458 of 2010, 11704/2011 & W.A.No.1049 of 2010

--------------------------------------------------- Dated this the 30th day of June, 2011 COMMON JUDGMENT Basheer, J.

Since all these cases relate to the same subject matter, they are being disposed of through this common judgment.

2. Before we deal with these cases individually, it is necessary to take a brief look at the case projected by the petitioner-Trust as regards its title, ownership and possession of the rubber plantation known as B.C. Cheruvally Estate situated in Kottayam District.

3. Gospel for Asia (hereinafter referred to as 'the Trust') is stated to have purchased the above Rubber Plantation situated in Sy. Nos.281, 282, 283, 284/2, 284/3, 284/4 in Erumely Village and in Sy. No.299 in Manimala Village on the strength of a registered sale deed dated August 1, 2005 from M/s.Harrisons Malayalam Limited (hereinafter referred to as 'the Company'). After the purchase, the property, having an extent of 2,263 acres (approximately), was mutated in the name of the Trust and tax was also being paid by the Trust under the Plantation Tax Act ever since it came into possession. WPC 30850/07 & con. cases 2

4. According to the Trust, the property originally belonged to Chenappady Devaswom of Kongoor Namboodiris. Later, the property came into the possession of Mattakkattu family in 1869 on mortgage right. To cut a long story short, the property is stated to have ultimately come into the possession of Malayalam Plantations Limited on the strength of document No.1600/1923, executed by Malayalam Rubber Products Limited. Later, Malayalam Plantations Limited and Harrisons & Crossfield (India) Limited merged in the year 1984 and a new Company was incorporated as Harrisons Malayalam Ltd. Thus, the vendor of the petitioner-Trust became the absolute owner of the property. In 2005, the company executed Exhibit P1 sale deed assigning its right, title and interest over the property in favour of the petitioner.

5. Trouble started for the petitioner-Trust in 2006, when W.P.(C) No.28870/2006 was filed before this Court by a public spirited person with a prayer to issue a writ in the nature of mandamus directing the Government to take possession of the land in occupation of the petitioner. The writ petition was disposed of by this Court with a direction to the Government to treat the said writ petition as a representation and take a decision thereon. Shortly thereafter, the same petitioner, namely, Sri.P.R.Harikumar, filed W.P.(C)No. WPC 30850/07 & con. cases 3 30850/2007 with a prayer to issue a direction to the government and its officers to restrain the Trust from cutting and removing any trees "from 3500 acres of land in the Cheruvally Estate". The said writ petition is one of the cases, which are being dealt with by us in this judgment.

6. On October 18, 2007, The Village Officer, Erumely South issued an order restraining the Trust from cutting any rubber trees from he Estate on the ground that complains had been received that excess land which was liable to be surrendered by the Company was also included in the rubber plantation now in the possession of the Trust. The Village Officer issued another order four days thereafter directing the Trust not to remove any rubber trees that had already been cut from the property. These two orders are under challenge in W.P.(C)No.32628/2007, filed by the Trust.

7. In the meanwhile, by order dated April 10, 2008, this Court had permitted the Trust to remove the rubber trees that had already been cut on payment of seignorage. It was made clear that payment of seignorage will be without prejudice to the contentions available to the Trust. The Trust was also permitted to cut and remove specified number of rubber trees from certain portions of the Estate and to re- plant; yet again on payment of seignorage and certain other WPC 30850/07 & con. cases 4 conditions.

8. More trouble was yet to follow. On December 11, 2008, Tahsildar, Kanjirappally issued an order cancelling the mutation allowed by the Village Officer, Erumely in respect of the rubber plantation in the possession of the Trust. A copy of the said order is produced and marked as Exhibit P8 in W.P.(C)No.6258/2010 filed by the Trust. In this order, the Tahsildar stated that the Company had assigned lands which were involved in the ceiling case and therefore, the mutation effect by the Village Officer in respect of the said land was liable to be cancelled.

9. The above order pased by the Tahsildar was challenged by the Trust before the Revenue Divisional Officer, Kottayam. By order dated June 19, 2009, a copy of which is available on record as Exhibit P11, the Revenue Divisional Officer confirmed the order passed by the Tahsildar and dismissed the appeal preferred by the Trust. The revision petition filed by the Trust before the District Collector, Kottayam also met with the same fate. A copy of the order passed by the revisional authority is available on record as Exhibit P16. It is significant to note that in this order, the District Collector held that the revision petition was not maintainable since it was not accompanied by the original or certified copy of the order sought to WPC 30850/07 & con. cases 5 be revised as provided under Rule 18(v) of the Transfer of Registry Rules and also under Section 84 of the Kerala Land Reforms Act. These three orders, viz., Exhibits P8, P11 and P16 are under challenge in W.P.(C)No.6258/2010.

10. On May 29, 2010, Additional Tahsildar, Kanjirappally issued a notice to the Trust to show cause why action should not be taken under Section 12(1) of the Kerala Land Conservancy Act, 1957 to evict the Trust from the Government Land. The said show cause notice has been challenged by the Trust in W.P.(C)No.18164/2010. A learned single Judge of this Court, before whom the above writ petition came up for admission, passed an interim order staying all further proceedings pursuant to the said show cause notice, a copy of which is available on record as Exhibti P12 in the said writ petition. The interim order passed by the learned single Judge is under challenge in W.A.No.1049/2010 filed by the State.

11. In W.P.(C) No.35458/2010, the Trust challenged Exhibits P11 and P12 orders to pay seignorage for the rubber wood and rubber fire wood at the revised rate of Rs.1710/- and Rs.725/- respectively.

12. In W.P.(C) No.11704/2011 filed by the Trust the challenge is against Exhibit P24 notice issued by the Deputy Ranger, Forest Station, Plachery directing the Trust to stop the pineapple cultivation WPC 30850/07 & con. cases 6 in its property since according to the Deputy Ranger the Trust has been permitted by this court in its interim order only to cut the old rubber trees and replant new ones.

13. The State in its counter affidavit filed in W.P.(C) No.6258 of 2010, which can be treated as common to all writ petitions since it is more comprehensive compared to others, has contended that the attempt of the petitioner-Trust is to get its title over the property established by virtue of Exhibit P1 sale deed. The State has not only questioned the genuineness and authenticity of the notarised English version of document No.1600/1923 on the strength of which the vendor Company had allegedly got title and possession, but it has also been contended by the State that the said document does not contain the properties mentioned against old Sy.No.116/1C. It is further contended that a considerable extent of the land now claimed by the Trust on the basis of Exhibit P1 is not seen included in document No.1600/1923. In short, the contention of the State is that the Trust did not get a valid title over the property at all. It is also contended that as per the Settlement Register of 1908 maintained by the State of Travancore the lands situated in Sy.Nos.357/1J, 116/1, 1C-1, 2, 3, 4, 5 etc. are "Sree Pandarakaryam Cheyvarkal" properties measuring about 2,203.4 Acres and forest land measuring about 1,195.98 Acres WPC 30850/07 & con. cases 7 which are the lands exclusively held by the Government. But the vendor of the Trust namely, M/s.Harrisons Malayalam Limited had no title over the property covered under Exhibit P1. Since the land covered under Exhibit P1 is a Government land proceedings were initiated against the petitioner-Trust under the Kerala Land Conservancy Act and also under the Transfer of Registry Rules.

14. The other contention raised by the State is that the land covered under Exhibit P1 is the subject matter of the ceiling case pending before the Taluk Land Board, Vythiri in TLB (SW) No.37/1981 against M/s.Harrison Malayalam Limited. We will deal with the above contentions more elaborately a little later.

15. It is pertinent to note that the petitioner-Trust as well as the State have been engaged in this long drawn legal battle, which, since 2006, shortly after the Trust purchased the property on the strength of Exhibit P1 sale deed. The dispute essentially boils down to the question whether the petitioner Trust has derived any title over the property by virtue of Exhibit P1.

16. The State contends that the vendor of the petitioner-Trust namely, M/s.Harrison Malayalam Limited, did not obtain any title over the property in question. State disputes the very genuineness and authenticity of the notarised version of the document (1600/1923) WPC 30850/07 & con. cases 8 produced by the Trust before the authorities. State has a further case that some of the properties which are included in the schedule of Exhibit P1 are not seen mentioned in Document No.1600/1923 at all. Still further, State has got a case that the land purchased by the petitioner-Trust is Government land; part of it being forest land and the remaining portion being "Sree Pandarakaryam Cheyvarkal".

17. The major plank of the case projected by the State is that the vendor-Company has alienated excess land which was liable to be surrendered to the Government. In this context, it is pointed out by the State that the Land Ceiling Case initiated on the basis of the declaration furnished by the vendor-Company is still pending consideration before the Taluk Land Board, Vythiri. It is also pointed out that this Court, by Exhibit P6 order dated November 25, 1993 in C.R.P.No.3661/1982 filed by the declarant (Company), had directed the Taluk Land Board to consider the matter afresh in the light of the directions issued in the order and also in the light of such other relevant materials that may be brought before it by the vendor Company.

18. Learned Additional Advocate General submits that the question whether Exhibit P1 assignment deed included lands which are liable to be surrendered by the vendor-Company is still at large WPC 30850/07 & con. cases 9 and therefore the action of the statutory authorities in initiating proceedings against the Trust is justified, since obviously, the Trust has not obtained a valid right or title over the property in question.

19. It is true that under Section 11 of the Kerala Land Conservancy Act, 1957, an unauthorised occupant of a land which is the property of the Government whether a puramboke or not, is liable to be evicted summarily. Section 12 provides for issue of prior notice to such unauthorised occupant. But the short question is whether there is sufficient and cogent material to show that petitioner Trust is an unauthorised occupant.

20. It is undoubtedly true that the State has a definite case that the lands which have been allegedly conveyed by the vendor company are Government lands or some portions of the lands are excess lands that are liable to be surrendered by the vendor-Company. Indisputably, petitioner Trust has been in possession of the lands covered under Exhibit P1 sale deed ever since 2005. Petitioner has been remitting land revenue, plantation tax, etc. since then. It is also beyond controversy that mutation has been effected in the name of the petitioner pursuant to the execution of Exhibit P1 document. Similarly, transfer of title under the Transfer of Registry Rules, 1966 had also been effected.

WPC 30850/07 & con. cases 10

21. It is contended by Sri.R.D.Shenoy, learned senior counsel who appears for the petitioner-Trust that the action of the government is without any doubt a colourable exercise of power. Petitioner had purchased the property after remitting Rs.6.30 crores as stamp duty to the Government. All formalities under the relevant Statutes and Rules were complied with. If at all there was any cloud over the title of the petitioner, the Government ought to have given sufficient opportunity to the petitioner to be heard. If there was any doubt about the identity of the property assigned in favour of the petitioner Trust, the mighty Government ought to have got the property surveyed with reference to the records. He further submits that petitioner was not responsible for the delay in the disposal of the Land Ceiling Case which is pending before the Taluk Land Board, Vythiri. Petitioner- Trust which is a bona fide purchaser was fully convinced at the time of purchase that its vendor had valid title and possession over the property which it assigned in favour of the petitioner. Learned senior counsel submits that the action of the Government is only to please certain elements who are bent upon harassing the petitioner for reasons best known to them. The contention that petitioner has purchased lands which are liable to be surrendered by the vendor company is too far fetched and untenable. Placing heavy reliance on WPC 30850/07 & con. cases 11 the directions issued by this Court in Exhibit P6 order, it is contended by the learned senior counsel that the lands which had been purchased by the petitioner are not "excess land", as alleged by the Government.

22. A perusal of the materials available on record will show that there is some confusion or ambiguity about the identity of the land which is stated to have been conveyed by the Company to the petitioner-Trust. The dispute revolves around the question whether any excess land, which was liable to be surrendered by the vendor- Company to the Government, has been assigned to the petitioner- Trust. The specific case of the Government in the counter affidavit is that "The large extent of land, over which, the petitioner is claiming title is comprised in old Sy.No.357/1J as per document No.1600/1923 (1098 M.E.) and Sy.Nos.116/1, 1C-1, 2, 3, 4, 5 as per document No.2359/2005".

23. It is the further contention of the Government that "As per the Settlement Register of 1908 maintained by the State of Travancore, the lands aforesaid are "Sree Pandarakaryam Cheyvarkal" measuring about 2203.4 Acres and forest measuring about 1195.98 Acres which are the lands exclusively held by the Government".

WPC 30850/07 & con. cases 12

24. We have extracted the above assertions made by the Government in its counter affidavit only to highlight the fact that this appears to be the primary bone of the contention. The Government has apparently initiated action against the petitioner under the Kerala Land Conservancy Act, Transfer of Registry Rules, etc. on the basis of the materials referred to above.

25. We have carefully perused Exhibit P5 order passed by the Taluk Land Board in the ceiling case pending against the vendor- Company. While dealing with the land held by the Company in Kottayam District (Mundakkayam Estate), the Taluk Land Board noticed that the declarant (Company) had claimed that it had in its possession 3,681.06 acres and that exemption had already been allowed in respect of 3,549.42 acres. It is not necessary to refer to the other small extents of land mentioned in the order of the Taluk Land Board in respect of this item of property, at this stage. It is clear from the above order that Company had in its possession under the exempted category about 3,550 acres. In Exhibit P6 order passed by this Court in C.R.P.No.3661/1982, there is no reference to this item of property in Kottayam District. Obviously, petitioner had no grievance about the order passed by the Taluk Land Board in respect of this item. Any how, this Court, while remitting the case back to the Taluk WPC 30850/07 & con. cases 13 Land Board, had not issued any specific direction about this item of property. Thus, it is clear that the Company had in its possession nearly 3,550 acres in Kottayam District.

26. Though the Government has referred to old Sy.No.357/1J in the counter affidavit, no material has been produced to show the new corresponding re-survey number. It is significant to note that petitioner has mentioned the survey numbers relating to the property in their possession covered under Exhibit P1. It is true that Government has referred to the old Sy.No.357/1J as it appears in the document of 1,923 which is stated to be the basic document relating to the property. We have referred to these aspects only to indicate that there appears to be considerable force in the contention raised by the petitioner that no excess land that was liable to be surrendered by the Company was included in Exhibit P1 document. We hasten to add that this is only an expression of out prima facie view and not a finding since no basic document or survey records have been placed before us and more importantly, in a proceedings under Article 226 of the Constitution of India such a scrutiny or roving enquiry is not warranted or feasible.

27. The specific case of the Company is that it had surrendered 1400 acres as excess land and that the property covered under WPC 30850/07 & con. cases 14 Exhibit P1 did not include any excess land. Sri.A.M.Shafique, learned senior counsel who appears for the Company, has vehementally contended before us that the action initiated by the Government is totally unwarranted and ill motivated. He further submits that the challenge raised by the Company before this Court in C.R.P.No. 3661/1982 was confined only to certain items of land held by it in some other Districts in the State of Kerala. As regards Mundakkayam Estate in Kottayam District, no serious dispute was raised in the CRP, since the Company was not very much aggrieved, as the claim for exemption made by the Company had been more or less allowed by the Taluk Land Board obviously for the reason that it had been a rubber plantation for the last several years.

28. However, Sri.Renjith Thampan, learned Additional Advocate General, submits that the vendor-Company had in its possession and enjoyment only 737.94 acres. Therefore, it could not have assigned such a huge extent of more than 2,000 acres to the petitioner-Trust under Exhibit P1 document. He has also invited our attention to Section 3 of the Kerala Land Conservancy Act and contended that Government is well within its powers to evict encroachers as provided under Sections 11 and 12 of the Act. He further submits that Exhibit P8 order was passed by the Tahsildar strictly in compliance with the WPC 30850/07 & con. cases 15 provisions contained in the Act. Similarly, the proceedings initiated under the Transfer of Registry Rules is also in strict conformity with the procedure prescribed. He further submits that W.P.(C)No. 18164/2010, filed by the Trust challenging the show cause notice issued by the Additional Tahsildar, Kanjirappally, is not at all maintainable. The interim order passed by the learned single Judge in this writ petition is assailed by him. He urges that this Court has to refuse to exercise its jurisdiction under Article 226 of the Constitution of India, since, petitioner is entitled to approach the authority concerned and show cause why the proposed action is not warranted.

29. It may at once be noticed that the case of the Government is that the Rubber Plantation which is now in the possession of the petitioner on the strength of Exhibit P1 includes excess land and that unless and until the Taluk Land Board decides the issue in the proceedings now pending before it, petitioner cannot be heard to say that it is entitled to keep possession of the said land. We have already referred to the specific case of the Government in this regard as projected in the counter affidavit.

30. We have also noticed that the Taluk Land Board had granted exemption to the Company in respect of about 3,500 acres of rubber plantation (Mundakkayam Estate) in Kottayam District. Admittedly, WPC 30850/07 & con. cases 16 petitioner had purchased the rubber plantation under Exhibit P1 from the Company. Therefore, prima facie, we are satisfied that the contention raised by the petitioner cannot be totally repelled or rejected. Yet again, we hasten to add that we are not expressing any opinion on the merit or demerit of the contentions raised by the parties. The question relating to the identity of the land and also whether any excess land had been conveyed by the Company to the petitioner, etc. are matters to be decided before the appropriate forum. In any view of the matter, this Court cannot, under Article 226 of the Constitution of India, decide such issues.

31. In this context, learned Additional Advocate General has invited our attention to the notice issued by the petitioner-Trust under Section 80 of the Code of Civil Procedure. He points out that though the petitioner had informed the Government that it proposes to institute appropriate legal proceedings for establishment of its title, no steps have been taken in this regard so far. We do not propose to make any comment or observation on this aspect nor do we want to advise any of the parties about the remedies available to them.

32. As regard the action taken by the Government under the Transfer of Registry Rules, it may only have to be noticed that Rules 3

(a), 7, 9, 10 and 14 of the Transfer of Registry Rules, 1966 only WPC 30850/07 & con. cases 17 prescribe the procedure for effecting transfer of registry in relation to the transfer of title and the manner in which the competent authority is to prepare and maintain the relevant records. Rule 16 postulates that the summary enquiry and decision thereon is only "an arrangement for fiscal purposes" and does not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases. The Rule further provides that the question of legal rights is always subject to adjudication by Civil Courts and pattas will be revised from time to time in accordance with judicial decisions. Thus, it is clear that the competent authority can always conduct such enquiries as it deems fit.

33. But, in the case on hand, for the reasons stated by us in the earlier part of this judgment, we are of the view that the authorities were not justified in initiating coercive action against the petitioner without deciding the identity of the property with reference to the survey records and also before culmination of the proceedings pending before the Taluk Land Board, Vythiri.

34. In that view of the matter, Exhibits P8, P11 and P16 in W.P. (C)No.6258/2010 are quashed. Similarly, Exhibit P12 order in W.P. (C)No.18164/2010 is also quashed. However, we make it clear that it will be open to the Government to initiate other appropriate WPC 30850/07 & con. cases 18 proceedings in accordance with law.

35. In the meanwhile, petitioner-Trust shall not encumber or alienate any part of the property covered under Exhibit P1 till the disposal of the Land Ceiling Case pending before the Taluk Land Board, Vythiri. Petitioner will be at liberty to pursue the remedies available to it under law for establishment of its title and possession, if so advised. Similarly, nothing stands in the way of the Government in expediting the disposal of the Land Ceiling Case.

36. In view of the above findings entered by us, we do not find any merit in the contentions raised by the petitioner in W.P.(C)No. 30850/2007. Therefore, it is closed. We, however, make it clear that petitioner in this writ petition will be at liberty to pursue the matter at a later stage, if situation so warrants. His contentions are left open.

37. W.P.(C)Nos.32628/2007, 18164/2010 and 11704/2011 and W.A.No.1049/2010 are also closed since they have become infructuous in view of the conclusions made by us in the earlier part of this judgment.

38. In W.P.(C)No.35458/2010, petitioner-Trust has challenged the revision of seignorage rates of rubber wood and rubber fire wood. But, petitioner has not produced any material to show that the hike in the seignorage rate is irrational or exorbitant or that the Government WPC 30850/07 & con. cases 19 is not within its powers to revise the rates periodically. Therefore, this writ petition is dismissed.

All the above writ petitions and writ appeal are disposed of in the above terms.

(A.K.Basheer, Judge) (P.Q.Barkath Ali, Judge) tkv