Kerala High Court
M/S.Harrisons Malayalam Ltd vs State Of Kerala on 18 May, 2010
Author: K.M. Joseph
Bench: K.M.Joseph, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34707 of 2009(G)
1. M/S.HARRISONS MALAYALAM LTD
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
2. SECRETARY TO GOVERNMENT,
3. DIRECTOR GENERAL OF POLICE,
4. INSPECTOR GENERAL OF POLICE
5. INSPECTOR GENERAL OF POLICE
6. INSPECTOR GENERAL OF POLICE
7. SUPERINTENDENT OF POLICE,KOLLAM
8. SUPERINTENDENT OF POLICE,
9. SUPERINTENDENT OF POLICE, IDUKKI
10. SUPERINTENDENT OF POLICE,KOTTAYAM
11. SUPERINTENDENT OF POLICE, THRISSUR
12. SUPERINTENDENT OF POLICE, WYANAD
13. SADHU JANA VIMOCHANA SAMYUMKTHA VEDI
14. WAYANAD BHOO SAMRAKSHANA SAMITHI
15. BHOOSAMARA SAMITHI, REPRESENTED BY ITS
16. COMMUNIST PARTY OF INDIA
For Petitioner :SRI.E.K.NANDAKUMAR
For Respondent :SRI.THOMAS ANTONY
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :18/05/2010
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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W.P(C).NOS. 34707/09G, 4545/10P,
4624/10C, 4642/10E & 4646/10E
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Dated this the 18th May, 2010
JUDGMENT
K.M. Joseph, J.
These batch of Writ Petitions raise common questions and hence they are disposed of by this common Judgment. All the petitioners seek a writ of mandamus, order or direction in the nature thereof, directing the official respondents to provide police protection to them to ward off encroachments on their properties.
W.P.(C).No.4545 of 2010
2. The petitioner is an elected Member of the Kerala Legislative Assembly from Kalpetta. Briefly put, the case of the petitioner is as follows:
Petitioner is a planter. The present Wayanad District and other parts formerly constituting the erstwhile Malabar area were under the administration and management of the Madras Government. During 1940, the Madras Government formulated WPC.34707/09 & CNN. CASES 2 a scheme, called more food campaign to encourage the people to cultivate more lands. The grandfather of the petitioner, a cultivator was approached by the concerned Officials offering to give the property in the possession of the petitioner herein for improving and converting the same into an agricultural land. These lands were handed over in the year 1940 and were improved and converted into an excellent garden land consisting of various fruit bearing trees. During 1958, there was an assessment and levy of additional land revenue under the Madras Land Revenue (Surcharge) Act, 1954. Ext.P3 is the copy of the Registration Certificate in favour of the petitioner's grandfather. There is a partition by the grandfather and the property was allotted to the share of his father, Shri M. P. Veerendrakumar who is a former Minister. Petitioner's father also paid tax under the Kerala Plantation Additional Tax Act, 1950. There is reference to a Partition Deed No. 1639 of 1972 by which there was a partition among the members of the branch of the petitioner's father (Ext.P5). From the date of the Partition WPC.34707/09 & CNN. CASES 3 Deed, the property is in the possession of the petitioner. Petitioner has improved the property further, paid taxes and other dues to the Government. It is stated that in regard to the present property, petitioner has requested for assignment which is not granted. There is also reference to the petitioner being in possession of land of about 48.18 Acres with lands lying adjacent to the present property. It is alleged that the petitioner moved a Review Petition before the Minister for Revenue which is pending consideration, and the matter has not attained finality. Petitioner filed OS.No.142 of 2007 for declaration of title and injunction. Ext.P6 is the interim order passed. Still further, there is reference to the relationship between the petitioner and his father and a section of the leadership of the LDF becoming strained due to political developments. It is alleged that a demand emanated from the local activists of the CPI (M) that the land in possession of the petitioner and his father should be dispossessed and distributed among the adivasis. It is stated that the petitioner and his father had to leave the LDF along with his WPC.34707/09 & CNN. CASES 4 entire party, Janata Dal (S). His detractors incited the adivasis to move this Court by filing Writ Petition No.3195 of 2007 seeking re-possession of the land in the possession of the petitioner. That Writ Petition was dismissed. Against that, Writ Appeal No.348 of 2008 was filed. Without affording an opportunity of hearing to the petitioner, it was disposed of directing the official respondents to take effective steps to re-possess the land if the petitioner is in illegal possession. Petitioner filed a Review Petition. It was alleged further that the Local Secretary of the CPI (M) and the M.L.A. representing Sulthan Bathery Constituency, suddenly, started a movement clamouring that the land which is the subject matter of a civil suit and the Review Petition before this Court be handed over to adivasis for erection of huts and a march was held to seize the land by force. There are allegations against the District Collector in regard to the installation of a Board showing that the property is Government property for assigning to adivasis in terms of the Judgment of this Court in Writ Appeal No.348 of 2008.
WPC.34707/09 & CNN. CASES 5
3. A Counter Affidavit is filed by the second respondent, inter alia, stating as follows:
The subject property having 14.44 Acres is a Government land. After the formation of the Government of Kerala, the property stood vested with the Government of Kerala. Petitioner filed Ext.R2(a) application for assignment of the said land. There is reference to the Rules and Ext.R2(b) Report of the District Collector to the effect that the petitioner is in possession of 62.23 Acres of land, even according to Ext.R2(a) application. By Ext.R2(c), the Government rejected the claim of the petitioner for assignment of the subject property after giving an opportunity of being heard to the petitioner. There is no documentary evidence whatsoever, except Puncha Chit Receipt and the coffee plantation certificate to show that their family was in possession of the property as lessee. Leasehold right, in other words, appears to be denied. It is stated that the document will only show that the petitioner or for that matter, his predecessors in interest were in possession of the properties WPC.34707/09 & CNN. CASES 6 without any objection from the Government. It is stated that after having suffered Ext.R2(c) order, the petitioner cannot turn round and say that he has prescribed title or that he is entitled to fixity of tenure in a civil suit. He is estopped. Government has every authority to re-possess the land under the provisions of the Land Conservancy Act, subject to the Suit. It is stated that there is no meaning in the petitioner's contention regarding his alleged apprehension that Government may re-possess the land without adhering to the provisions of law. There is reference to the order passed by this Court in Writ Appeal No.348 of 2008. It is contended that the Division Bench permitted the Government to re-possess the land, subject to the Land Conservancy Act and after observing the principle of natural justice, to distribute the land to the eligible adivasis. Thereafter, it is, inter alia, stated that the Government did file Counter Affidavit in the Suit in 2007 itself, denying the allegations. The allegations about strained relationship of the petitioner with LDF etc. are disputed. It is stated further that it is true that the landless adivasis in WPC.34707/09 & CNN. CASES 7 Waynad made an attempt to enter into the property on 6.2.2010. However, their attempt was foiled by the Police force effectively and, therefore, the adivasis could not remain there. An attempt is made to justify the action of the Collector. It is further stated that the Government will re-possess the land in question from the petitioner only subject to the decision in the Suit and by resorting to the Act and the Rules and after observing principles of natural justice and they will make every possible steps to maintain law and order. Petitioner has filed a Reply Affidavit to the same.
4. There is a Counter Affidavit filed by respondents 7 and 8 in the matter. The 7th respondent is the President of the Adivasi Kshema Samithi, Wayanad and the 8th respondent is the District Secretary of the Adivasi Kshema Samithi, Wayanad.
Therein, the parties have made an attempt to trace the history of the adivasis. In long and short, it is their case that the adivasis of Wayanad have been reduced to begar. It is further stated that there are about three lacks tribals in Wayanad District and about WPC.34707/09 & CNN. CASES 8 twenty thousand tribal families are without any land or livelihood. Reference is made to the decision in Varkey Abraham v. Secretary to Government (2007 (3) KLT 702), wherein it is declared that the Kerala Land Assignment Act and the Rules are not intended for enriching persons who hold extensive lands. It is their case that the petitioner is attempting to politicise the issue. It is their case that the writ Court may not declare the title of the petitioner. There are factual issues which are highly disputed and contumacious. Petitioner has filed a Reply Affidavit to the same.
W.P.(C).No.4642 of 2010
5. Briefly put, the case of the petitioner is as follows:
They are co-owners in possession of coco plantation having an extent of 26.305 hectares equivalent to 65 acres in Wayanad District. They had acquired the jenm right over a property having an extent of 47.5610 hectares under Ext.P1 Assignment Deed No.3357 of 1999. Thereafter, the leasehold rights of the lessee, namely M/s. Cadbury India Limited was WPC.34707/09 & CNN. CASES 9 surrendered orally in favour of the petitioners and followed by Ext.P2 document. In Writ Petition No.4642 of 2010, the Land Board Order is produced to show that the aforesaid property of coco plantation is exempted by the Taluk Land Board. 20.2500 hectares came to be acquired by the Government for KINFRA in the year 2000. Ext.P4 is the Award. There was a reference to the Sub Court in the matter of compensation. Ext.P5 is the Award. Petitioner in W.P.(C).No.4642 of 2010 was elected to the Wayanad District Panchayat on the party ticket of Janata Dal. Janata Dal was associated with CPI(M). Petitioner was elected as the Chairman of a Standing Committee. In 2009, following a political re-alignment, Janata Dal supported the United Democratic Front, which is in opposition to the LDF. With the support of the petitioner in W.P.(C).No.4642 of 2010 whose stand was of critical importance, the UDF has gained control of the Panchayat, dislodging the Sitting President and Vice President of the Panchayat and the petitioner was elected as the New Vice President. Consequently, the ruling CPI(M) is WPC.34707/09 & CNN. CASES 10 antagonist to the petitioner. Government has charged a false case of under-valuation which is pending consideration in a Writ Petition. Thereafter, allegations are raised against respondents 6 and 7 that they have manipulated the fifth respondent and managed a forcible entry by members of the fifth respondent in the property of the Sitting M.L.A. Shri M. V. Sreyams Kumar (petitioner in W.P.(C).No.4545 of 2010). Thereupon, the petitioner filed Ext.P6 complaint. It is alleged that some members of the adivasis were egged on and headed by respondents 5 to 7 and on 8.2.2010, they forcibly entered into a portion of the property and destroyed a few coco plants and attempted construction of katcha huts. Petitioner has approached the respondents. Counter Affidavits have been filed by respondents 2 to 4. They are the Superintendent of Police, Wayanad; the Circle Inspector of Police, Kalpetta and Sub Inspector of Police, Kalpetta. It is, inter alia, stated as follows:
Petitioner is in possession along with his other co-owners 65 acres of land in Survey No.2661 of Kalpetta Village and that WPC.34707/09 & CNN. CASES 11 a part of the land has been acquired for KINFRA. There is also reference to the allegation of under-valuation and a dispute between the petitioner and the Government in regard to the land.
There is reference to a vigilance case under the Prevention of Corruption Act, 1988. It is also stated that the proprietory rights of the petitioner and other co-owners are also in dispute, since according to the Government, the alleged title is bad, as it is hit by the provisions of the Kerala Land Reforms Act. There is reference to the fourth respondent receiving the petition from the petitioner and other co-owners. It is stated that the fourth respondent along with eleven police men then readily available, rushed to the spot and found some AKS workers numbering about 150 including women and children gathered here and there as groups along with road side adjacent to the boundary of the petitioner's property and shouting slogans. On seeing the police party, the assembled groups further spread and entered into the land of the petitioner and other co-owners who were not having any fencing before the police could do anything. The WPC.34707/09 & CNN. CASES 12 police party are stated to be out-numbered. The persons shouted slogans and erected blocks. The available police force were not enough to remove the mob numbering about 150. Fourth respondent informed the higher Officer. Third respondent reached the spot with re-inforcement. With that re-inforcement, the force was insufficient to remove the agitators. But, it is stated that later, eighteen persons were removed. They got a Report from the Special Branch of the local area that the adivasis are preparing for resistance with the police and further removal at that dusk time may lead to serious law and order problem as the agitating adivasis including women and children may sustain causalities. On the next day (9.2.2010), the entire police force was on duty in connection with the eviction from the subject matter in W.P.(C).No.4545 of 2010. Some more adivasis also forcibly entered into the estate land through the interior pathways and thus, the number increased about 350, in regard to the petitioner in W.P.(C). No.4642 of 2010. The adivasis forcibly entered were remaining there and living WPC.34707/09 & CNN. CASES 13 according to their life style, using the waste wood as firewood for cooking food. Petitioner has represented this matter as destruction of property. It is stated that the persons cleaned some bush growths and some small waste of the trees which were cut.
6. In the Counter Affidavit filed by the first respondent, it is, inter alia, stated as follows:
The land measuring 180.70 acres came into the possession of M/s. Panora Tea & Produce Company Limited as per the Lease Deed No.8 of 1965 and Lease Deed No.15 of 1868 from two tharwads. The jenm rights came to be vested however with one of the tharwads under a Document of the year 1884. The leasehold right possessed by M/s. Panora Tea & Produce Company Limited was seen vested with M/s. Chambra Peack Estate, the successor of the said Panora Tea & Produce Company Limited. The Chambra Peak Estate transferred the above extent of 180.10 acres on sub-lease for a period of twentyfive years (Marupattom) in favour of M/s. Cadburys India WPC.34707/09 & CNN. CASES 14 Private Limited in the year 1966. There was a Suit filed by the jenm owner before the Munsiff Court which was finally settled between the parties and there was a renewal in favour of Champra Peak Estate for 99 years. As per Document No.2548 of 1991 Champra Peak Estate sold 119.21 acres to M/s. Cadburys India Private Limited. An extent of 60.29 acres which was given on sub-lease was surrendered and the lessee regained possession of the same. That was sold and later on, transferred to various parties. The legal heirs of the jenm holder transferred their right over an extent of 117.48 acres which was in the actual possession of M/s. Cadburys India Pvt. Ltd. To Shri Imbichi and M. Sasidharan in the year 1998. Thereafter, the said Imbichi and Sasidharan assigned the jenm right to Shri George Pothen, Shri P.C. Mathew and Shri George John. M/s. Cadburys India Pvt. Ltd. Surrendered their leasehold right and handed over possession of the said property to Shri George John and other co-owners as per Document in 2002. There is reference to the Award passed by the Acquisition Officer. Two lacunae are WPC.34707/09 & CNN. CASES 15 pointed out in regard to the title. It is stated that under Section 72 of the Land Reforms Act, there is a vesting of the rights of the jenmi automatically with the Government and the lessee has to apply and obtain purchase certificate from the Land Tribunal.
Petitioner or his predecessor had not obtained purchase certificate. Secondly, it is contended that under Section 51 of the Kerala Land Reforms Act, the lessee cannot terminate the tenancy by surrendering the leasehold right and even if he should surrender, it could be only in favour of the Government. There is reference to also a case booked by the Vigilance & Anti-Corruption Bureau in regard to the deficiency in stamp duty paid in the Document at the time of registration. It is further stated that it is understood that landless adivasis in the Wayanad District who got information regarding the defective title of the petitioner, have forcibly entered into the property with their family members including women and children and have erected huts therein. At the time of forcible entry, the organized mob were so agitated and determined and hence any WPC.34707/09 & CNN. CASES 16 strict measures could have resulted in blood shed. It is also stated that on 8.2.2010, special branch information from the local area indicated that the adivasis are preparing for resistance with police and further removal at that dusk time may lead to serious law and order problems, as the agitating adivasis including women and children may sustain causalities. There is also statement that even though the police attempted to remove the organised mob from the site, it was not effective because any strict measures at that time would have been led to bloodshed. It is also stated that after the learned Advocate General submitted that law and order would be maintained, no further forcible entry occurred. Apart from the Counter Affidavit filed by respondents 2 to 4, there are Counter Affidavits filed by respondents 5 to 7, inter alia, raising contentions based on Sections 51 and 72 of the Act, and the booking of the case for under-valuation of the property. A Reply Affidavit is filed. Therein, it is, inter alia, stated as follows:
The arguments based on Sections 51 and 72 of the Kerala WPC.34707/09 & CNN. CASES 17 Land Reforms Act are sought to be met by contending that they fall in Chapter II and as per Section 3 of the Act, nothing contained in Chapter II will apply to leases of private forests and tenancies in respect of plantations exceeding thirty acres in extent. It is stated that property was leased by Chembra to Cadbury in 1965 as a private forest for the purpose of planting coco and Cadbury had converted the area of 117.8 acres into coco plantation before 1.1.1970. Ext.P9 is stated to be the Registered Lease Deed dated 30.10.1965 between Chembra Peak Estates Ltd. and M/s.Cadbury Fry India Pvt. Ltd. and it is stated that Ext.P10 is a copy of the Registered Lease Deed between the same parties. It is contended that the area is plantation and it did not vest in the Government and the jenmi retained the right which was validly assigned to Imbichi and Sasidharan who in turn sold it to them. It is stated that Section 51 has no application to surrenders after 1970. W.P.(C).
No.4646/2010 is filed by the other co-owner and we need not refer to the facts separately.
WPC.34707/09 & CNN. CASES 18
W.P.(C).NOS.4624 OF 2010 &
34707 OF 2009
7. These Writ Petitions are filed by the same Company, namely M/s. Harrisons Malayalam Ltd. Briefly put, the case of the petitioner is as follows:
Petitioner is a Company owning an estate both rubber and tea. It is in possession of 6916 acres of land in Wayanad District. It has been in the possession of the Company for the last more than hundred years. 5612 acres is planted with tea and the balance is interspersed and ancillary area required for the said plantations. There is reference to the petitioner Company being a victim to the Chengara land agitation. It is stated that though this Court had granted protection, trespassers have made permanent constructions and have prevented the petitioner from cultivating 350 acres in the rubber plantation. It is stated that the petitioner had to file W.P.(C).No.34707/09 in which Ext.P1 interim order came to be passed. The threat of trespass into the petitioner's lands in Wayanad being writ large, the petitioner has been contacting respondents 1 to 11 for adequate protection. It WPC.34707/09 & CNN. CASES 19 is stated that on 8.2.2010, respondents 12 and 13 had trespassed into the petitioner's Chundale Estate lands. Petitioner filed Ext.P3 complaint, followed by Ext.P4 letter. It is also stated that supporters of respondents 12 and 13 had trespassed into fresh areas of Achoor and Arapetta Estates also of the petitioner. Petitioner filed Ext.P5 complaint. It is the case of the petitioner that the total holdings of the petitioner Company was determined by the Officials after detailed enquiry and verification as 59623.50 Acres. The Taluk Land Board by its order dated 2.7.1982 arrived at 1845 acres as the petitioner's excess lands in all its Estates in Kerala. Petitioner filed C.R.P.No.3661 of 1982. By Ext.P6 order dated 25.11.1993, this Court directed the Taluk Land Board to consider afresh the case after taking into consideration the irregularities pointed out by the petitioners in the Civil Revision Petition. It is stated that no Appeal was carried against the said order. Hence, they cannot claim any extent more than the 1845 acres arrived at in the year 1982 order and this position is upheld by this Court in W.P.(C).
WPC.34707/09 & CNN. CASES 20 No.738 of 2008. The matter is, however, pending consideration before the Taluk Land Board, Vythiri. It is submitted that there is a wrong motion that the petitioner is holding large extents of land in its Estate as excess land. In the report submitted by the Government of Kerala, known as the High Level Committee Report, the Committee on its own, without hearing the petitioner, concluded that the petitioner is in possession of 76769.80 acres of land in Kerala. It is stated, inter alia, that the Report is erroneous. It relied on land holdings prior to 1.1.1970. It is stated that the petitioner is ready to co-operate with any enquiry as its land holdings and it has written to the Government Officials about its willingness. The report of the Committee accuses the petitioner of delaying the Taluk Land Board proceedings and it further recommends complete survey of the petitioner;s land. Petitioner was not given any notice. Petitioner approached this Court by way of a Writ Petition and it was disposed of by Ext.P7 Judgment wherein this Court, inter alia, took the view that the Government was only ascertaining the WPC.34707/09 & CNN. CASES 21 facts and any further action can be only after completing with the procedural formalities as per law applicable and also after hearing and opportunity to adduce evidence to the petitioner. It is stated that visual and print media have been coming out with reports based on the faulty report of the High Level Committee.
8. In the Counter Affidavit filed by respondents 6 to 11, it is, inter alia, stated as follows:
There is a practical difficulty faced by the police in view of the scattered nature of the property possessed by the petitioner Company. It is stated that the distance from one Estate to another Estate of the petitioner is five kilo metres and the Estates are situated stretching at a distance of about thirty kilo metres. However, the police have registered criminal cases against persons who made forcible entry to the property. It is stated that on 9.2.2010 a group of persons forcibly entered into seven acres of land of M/s. Harrisons Malayalam Limited, Division at Chundale and constructed eighteen huts and on getting information, police moved to the spot immediately and WPC.34707/09 & CNN. CASES 22 took effective steps to prevent forcible entry and the persons were removed from the land. Crime has been registered against eleven accused persons and it is stated that on the next day, they forcibly entered into the same land and about seventyfive persons are still occupying the land. It is stated that on 10.2.2010, about hundred persons forcibly entered into 14.3 acres of M/s. Harrisons Malayalam Ltd.'s Estate land at Achoor Factory Division, Parakunnu. It is stated that the police force rushed to the spot and it was noticed that the mob was very violent and agitated and they were shouting slogans that they are landless tribals. The mob included women, children and old women. Therefore, police could not remove the persons from the area in question. It is stated that at that time, that alone was possible to avoid blood shed. It is stated that crime has been registered under Sections 143, 147, 447 read with Section 149 IPC against about hundred persons. These persons have erected about eighteen huts and are still remaining there. Likewise, there is reference to forcible entry on 10.2.2010 and crimes have WPC.34707/09 & CNN. CASES 23 been registered. It is further stated that again on 13.2.2010, there was forcible entry and construction of temporary huts. Crime was registered. Reference is made to arrest of encroachers Bappootty, S/o. Hassan Kutty and Vijayakumar, S/o. Parameswaran Ezhuthachan on 14.2.2010. There is reference to four persons encroaching into the same land and being arrested and removed. It is stated that after the submission of the learned Advocate General that law and order would be maintained, there was no further forcible entry allowed to be committed. It is stated that at present, practically there is no gathering of people or for that matter forcible entry. It is further stated as follows:
As most of the encroachers belonging to the adivasis with women and children, forceful removal would lead to severe causalities. Agitators were organized and they were reluctant to move from the site. Strict measures at that time would have led to blood shed. It is also submitted that forcibly entry by the organized mob was substantially in the barren land possessed by WPC.34707/09 & CNN. CASES 24 the Company. There is reference to the dispute between the Company and the Government and the extent of land. It is also stated that it is understood that an extent of land possessed by the Company is much more than 6916 acres. It is stated that there is thus a dispute between the Company and the Government with regard to the extent and title of the land possessed by the Company in the State.
9. Respondents 12 and 13 who are the Kerala State Karshaka Thozhilali Union and the Adivasi Kshema Samithi have filed a Counter Affidavit. Therein, they have essentially attempted to trace the history of the adivasis. It is essentially pointed out that they have been exploited and they have been reduced to the stage of begar. It is stated also that this Court may not in the writ jurisdiction declare the title of the petitioner. Factual issues are highly disputed. It is stated that OS.No.174 of 2002 filed by the petitioner against one Pulangal Aboobacker and the Government of Kerala was dismissed. It is stated that there are many Suits. There was also a Counter Affidavit filed WPC.34707/09 & CNN. CASES 25 by the fourteenth respondent who was the Wayanad Bhoosamrakshana Samithi. They would say that to their knowledge, the petitioner Company has no land in the Wayanad District. There is reference to a Judgment in W.P.(C).No.17035 of 2009. Petitioner filed a Reply Affidavit producing various documents including the documents relating to the Land Board proceedings. They deny the allegation that the Company is holding 76769 acres in Kerala. They also produced letters issued by the petitioner in connection with the proceedings of the High Power Committee.
10. W.P.(C).No.34707 of 2009 was also filed by the same Company with four party respondents and the others are official respondents. Therein also, the prayer is for adequate protection in respect of the Company's properties in Wayanad, Thrissur, Kottayam, Pathanamthitta, Kollam and Idukki Districts. It is not necessary for us to refer to the allegations therein.
11. We heard Shri. K. Ramakumar, learned Senior Counsel appearing for the petitioner in W.P(C) No. 4545/2010, WPC.34707/09 & CNN. CASES 26 Shri. A. M. Shafeeque, learned senior counsel for the petitioner in W.P(C) Nos.4624/2010 and 34707/09; Shri. Bechu Kurian Thomas, learned Counsel for the petitioner in W.P(C) No.4646/2010 and Shri. B. G. Bhasker, learned Counsel appearing on behalf of the petitioner in W.P(C) No.4642/2010. We also heard Shri. C. P. Sudhakara Prasad, learned Advocate General appearing on behalf of the State and its officers, and Shri. P. V. Surendra Nath, learned Counsel appearing on behalf of respondents 12 and 13 in W.P(C) Nos. 34707/2009 and 4624 of 2010.
12. Shri. K. Ramakumar, learned Senior Counsel would trace the history of the title which we have already noticed and we have extracted the pleadings. He would further submit that the State of Kerala has been injuncted by the learned Sub Judge in a Suit filed by the petitioner. He would submit that it was the re-alignment in the political arena which has been the cause of the entire issue. Shri. A. M. Shafeeque would also reiterate the pleadings. He would submit that though this Court have given WPC.34707/09 & CNN. CASES 27 directions in the judgment relating to the petitioner company, in the judgment reported in M/s. Harrisons Malayalam Ltd. v. State of Kerala (2007 (4) KLT 540) about 350 acres of the petitioner company continues to remain trespassed upon. Referring to the said decision, learned Counsel would submit that the theory of operational freedom of the police means that the police will have to be left free and are not to take orders from extraneous sources. He would submit that lawlessness would continue to plague the body polity, if the trespassers are permitted to get away with their acts. Shri. B. G. Bhasker would submit that the adivasis have absolutely no right over the properties in question. He would refer us to Sec.129 of the Code of Criminal Procedure, besides the relevant provisions of the Police Manual, to contend that the police are bound to act come what may. He would submit that the question whether the adivasis are to be killed or to they would commit suicide, does not concern the petitioner, as they have a right to protect their property and enjoy the property. Shri. Bechu Kurian Thomas also would WPC.34707/09 & CNN. CASES 28 essentially refer us to Police Manual. He would contend that there is a breach of the Constitutional order.
13. Shri.C.P.Sudhakara Prasad, learned Advocate General would, on the other hand, submit as follows:
In regard to the writ petition filed by Shri. M.V. Sreyams Kumar (W.P.(C).No.4545 of 2010), he would submit as follows:
The police have acted in the matter. There are no trespassers on the property. He would further submit that the injunction order obtained by the petitioner has been modified. He would take us through the order and submit that as the order now stands, it is open to the State to take a decision about the illegality of the petitioner's possession and the learned Sub Judge has let the State free to dispossess the petitioner in the said eventuality. He would further submit that in view of the admitted fact that the petitioner has more than 62 acres of land inclusive of the disputed fourteen and odd acres, even accepting the case of the petitioner, under Rule 5 of the Kerala Land Assignment Rules, there is a duty on the part of the petitioner to WPC.34707/09 & CNN. CASES 29 surrender the entire land. He would further point out that the petitioner having applied for assignment of the land vide Ext.R2
(a) application and the said application having been rejected vide Ext.R2(c), the petitioner cannot cling on to the land. He would submit that the possession of the petitioner is illegal and this Court should not in Article 226 of the Constitution cannot order police protection for the petitioner to sustain his illegal possession of the land. He would also, of course, deny that the petitioner can claim as a lessee. According to him there is noting to show that the petitioner is a lessee.
14. As far as, W.P(C) Nos.34707/2009 and 4624/2010 (M/s. Harrisons Malayalam Ltd) are concerned, he would submit that the High Power Committee has found that the petitioner has possession of about 76000 acres of acres. He would point out the practical difficulty as the Estates are lying far apart.
15. In regard to W.P(C) Nos.4642/2010 and 4646/2010 are concerned, he would also refer to the provisions of Sections 51 and 72 of the Kerala Land Reforms Act. He would also refer WPC.34707/09 & CNN. CASES 30 to the Vigilance case about the Stamp Duty evasion. He would, of course, stoutly deny that the events alleged have nothing to do with the political developments in all these cases.
16. He would further refer us to the judgment of this Court in M/s. Harrisons Malayalam Ltd. v. State of Kerala (2007 (4) KLT 540) and commend to us the theory of operational freedom. He would submit that the alleged encroachment is done by landless adivasis. The situation is volatile and sensitive. The agitators will go to any length, he points out. The State cannot be ordered to fire upon and kill the agitators, he points out. He apprehends loss of life, if a flushing out operation is ordered.
17. Shri. P. V.Surendra Nath, learned Counsel would impress upon us the deplorable plight of the adivasis. He would submit that in Wayanad itself, there are about 20000 landless adivasi families. He would point out that the Constitution guarantees, among other rights, the rights which the Courts have declared under Article 21 of the Constitution. He would submit WPC.34707/09 & CNN. CASES 31 the Writ Court may consider the plight of the adivasis and the rights the landless adivasis have. He would submit that the adivasis are a deprived lot. He would emphasise that the agitation is a peaceful agitation. He would point out that promises have been made, but not kept and if the agitators, who may be led by outside elements (and there is nothing wrong about it, he contends, with reference to the history of the Indian Freedom Struggle), decided to protest, this Court should not interdict the same.
18. The issues which fall for our consideration, cannot be held to be res integra any longer, in view of the Judgment of this Court in M/s. Harrisons Malayalam Ltd. v. State of Kerala (2007 (4) KLT 540). Therein, a Bench of this Court was, in fact, dealing with a Writ Petition by the petitioner Company which is one of the parties in these cases also, namely M/s. Harrisons Malayalam Ltd. Therein, the Court, inter alia, held as follows:
"12. We notice with respect the above views, but we are of the opinion that if a person disobeys a law, whatever be the motivation for the same, the WPC.34707/09 & CNN. CASES 32 law must take its own course. The police have a duty in the light of the provisions in the Criminal Procedure Code and the Kerala Police Act referred to by the learned senior counsel for the petitioner, to maintain law and order and advert breach of peace. Threat to the lives of the citizens has also to be averted. If a large group of persons having no semblance of right over a property encroach into it and commit mischief, the owner is entitled to get the help of the police to protect his property. In such circumstances, the filing of a civil suit is not an efficacious remedy. So, when the police are under such a duty and it is shown that they have failed to perform its duty in this regard, then, normally, a writ in the nature of mandamus will be issued by this Court.
13. But, in this case, a few thousands of people, who are apparently landless, are involved. They also say, they will commit self immolation, if force is used to remove them. In that context, the police has to act carefully and tactfully to deal with the situation. The police are not supposed to yield to the pressure of the masses and abandon their duty to maintain law and order. But, the point to be WPC.34707/09 & CNN. CASES 33 decided is whether the police should be given operational freedom in planning how to evict the encroachers or we should force their hands. Normally, this Court should explain the duty of the police and leave it to the police to act on their own. But, in extreme cases where there is palpable failure of duty, this Court can and must step in and issue positive directions.
17. ......Whatever be the exact number, it is common case that a few thousands have encroached into the property of the petitioner. So, we feel that the police should be given freedom to decide how to act and when to act to discharge their duty, which we have mentioned earlier. The District Collector, who is the District Magistrate in charge of the police force, shall also involve himself in the issue and try to evict the encroachers without unpleasant untoward incidents We remind him that the District Magistrate has also got a duty in this regard, in the light of the relevant provisions in the Cr. P. C. and the Police Act. So, the District Collector and the District Superintendent of Police should act in tandem and discharge their duty to the petitioner. The Government also cannot be a silent WPC.34707/09 & CNN. CASES 34 spectator. It is one of the primary duties of the Government to maintain law and order and protect the life and property of its citizens. It shall not appear that it is turning a blind eye towards lawlessness. The Government, therefore, shall extend a helping hand to the District Collector and the police to solve the stalemate. We are in respectful agreement with the decisions cited above, which say that the Court should not interfere with the operational freedom of the police. Further, having regard to the special facts of this case, we do not think it appropriate to set any strict time schedule for discharging their duty."
Thus, if a large group of people trespass or attempt to trespass without the semblance of any right over a person's property, they cannot be told off the gates by relegating them to a civil court.
19. Therefore, the first question to be considered is whether the agitators/encroaches have any legal right or a semblance of the same over the properties of the petitioners in question ?
WPC.34707/09 & CNN. CASES 35 Going by the allegations and the submissions, we are of the firm view that none of the agitators/encroachers can claim to possess the semblance of any right over the properties in question. In fact, in the Counter Affidavits of the respondents, we notice that crimes have been registered and in many cases, persons were arrested, in regard to the alleged trespasses. The removal of the trespassers/encroachers is essentially being resisted alleging the existence of a sensitive state of affairs again substantially referring to the encroachers being women and children.
20. In regard to the petitioner in W.P.(C).No.4646 of 2010 and W.P.(C).No.4642 of 2010, essentially only three points appear to be raised and we have a distinct impression that these points cannot enable the learned Advocate General to resist the relief sought for by the petitioners. Firstly, it is contended that the right of the landlord is vested with the Government under Section 72 of the Kerala Land Reforms Act and, therefore, the title of the petitioners is suspect, as the assignment of the WPC.34707/09 & CNN. CASES 36 landlord's right in favour of the petitioners took place after 1.1.1970 when the vesting took place in 1970. The petitioners have sought shelter under Section 3 of the Kerala Land Reforms Act. Clause (vii) of Section 3 essentially provides that nothing contained in Chapter II will apply to leases of private forests. Of course, the proviso provides, inter alia, that the said Clause will not apply in cases of persons who were entitled to fixity of tenure immediately before the 21st of January, 1961 under any law then in force or persons claiming under such persons. Clause (viii) of Section 3 of the Act provides that nothing contained in Chapter II shall apply, inter alia, to tenancies in respect of plantations exceeding thirty acres in extent. The proviso reads as follows:
"Provided that the provisions of this Chapter, other than Sections 53 to 72S shall apply to tenancies in respect of agricultural lands which are treated as plantations under sub-clause (c) of clause (44) of Section 2."
WPC.34707/09 & CNN. CASES 37
21. Sections 51 and 72 of the Act relied on by the State, fall under Chapter II of the Kerala Land Reforms Act. Learned Government Pleader would point out the decision of the Full Bench of this Court in Rt. Rev. Dr. Jerome Fernandez v. Be-Be Rubber Estate Ltd. (1972 KLT 613). Therein, the Full Bench has taken the view that in order to attract Section 3 (viii) providing for tenancies of plantations exceeding thirty acres, the land should be a plantation at the time of the commencement of the lease. He would point out that going by the recitals in Ext.P2, it would show that the land was converted into a plantation at the hands of the lessee. Learned counsel for the petitioners would point out that under Clause (vii) of Section 3, the lands were private forests. They would contend that both private forests and plantations are exempted categories and that there is no embargo against conversion of a private forest into a plantation in between 1.4.1964 and 1.1.1970. It is contended that in fact the land in question was private forest as on 1.4.1964 and it was converted into coco plantation before 01.01.1970.
WPC.34707/09 & CNN. CASES 38 They would contend that this fact is clearly probabilised by Exts.P9 and P10. In particular, they would refer us to the contents of Ext.P10. In Ext.P10, they would point out that for Ext.P9 lease executed between the lessee and M/s. Cadbury, sanction was not obtained from the District Collector under Section 3(2) of the Madras Preservation of Private Forests Act. Sanction was obtained from the District Collector, which is referred to in Ext.P10, and that is how Ext.P10 came to be executed, it is contended. They would further point out that accepting the case of M/s. Cadburys India, the Land Board had exempted the land in question as a coco plantations. It is also contended that there is no dispute in this case regarding the possession of the petitioners. In fact, it is admitted that the petitioners are in possession. As far as Section 51 of the Act is concerned, it is pointed out that it will have no effect after 1.1.1970. Learned Government Pleader would contend that the contention of the learned counsel for the petitioners that the property was private forest as on 01.4.1964 and it was converted WPC.34707/09 & CNN. CASES 39 into a coco plantation by 01.01.1970 is not borne out by documents.
22. We find that the State has clearly admitted the possession of the petitioners. Petitioners have produced the order of the Taluk Land Board as per which the Taluk Land Board has found that the land is to be exempted as coco plantation. The State had proceeded to acquire a portion of the land and on a reference the Sub Court has found that the petitioners are entitled to receive the compensation. There is no case for the State that the property belongs to it. Prima facie, the case of the petitioners under Section 3(vii) is probabilised by Exts.P9 and P10 and in particular, the statement in Ext.P10 that sanction was obtained from the District Collector to execute the lease deed apparently under Section 3(2) of the Madras Preservation of Private Forests Act and the Order of the Land Board exempting the land as a coco plantation. But, we do not think it necessary for us to finally pronounce on the issue relating to the title as such of the petitioners, particularly in view WPC.34707/09 & CNN. CASES 40 of the admitted possession of the petitioners besides the order of the Sub Court finding that the petitioners are entitled to receive the compensation. We are totally unimpressed by the contention based on the vigilance case registered in relation to the alleged evasion of stamp duty, when the question at hand is the failure on the part of the State to afford protection. We fail to see how the State should be entitled to raise the question relating to stamp duty evasion, as a defence in an action to protect the right to possess peacefully property as against persons without the slightest semblance of a right to the privately possessed lands of the petitioners.
W.P(C) Nos.34707/09 and 4624/10
23. As far as the petitioner in these writ petitions are concerned, we would think that essentially as far as the State is concerned, there is a Bench decision of this Court in M/s. Harrisons Malayalam Ltd. v. State of Kerala (2007 (4) KLT
540) as already referred, dealing with most of the issues which WPC.34707/09 & CNN. CASES 41 have been raised. Of course, the principal question relates to the actual extent in the possession of the petitioner company. On the one hand, the petitioner would contend that it has possession of 59000 and odd acres. The attempt on the part of the State and in fact the party respondents also who contest the issue, is that it is in possession of much more extent of land. They relied on the findings of the High Power Committee in this regard. The fact, however, remains that originally the Taluk Land Board has determined the extent of land with the petitioner company as 59000 and odd acres. It had directed surrender of 1845 acres.
The company challenged the same by filing a Civil Revision Petition before this Court. This Court set aside the order of the Land Board and remitted it for fresh consideration. The said order was passed in the year 1993. 17 years have gone by and the matter remains undecided by the Taluk Land Board. The result is that the Competent Body to decide the question as to the extent of the land in the possession of the petitioner company and the extent it is liable to surrender, has still not determined WPC.34707/09 & CNN. CASES 42 the matter as per law. No doubt, in the Statement filed, it is stated that the matter will be disposed of within 6 months. However, the learned Advocate General would argue that Government has legal opinion that the matter therein between the petitioner company and the Government in relation to the forest land may have to be decided. As far as this Court is concerned, we cannot certainly decide what is the extent of the land which the petitioner possesses or what it can retain and what it may have to surrender. There is no serious contest to the possession by the petitioner company of the trespassed land in question are concerned. In fact, apparently recognizing the petitioners possession, crimes have been registered and arrests have been made.
24. Of course, we must hasten to observe in W.P(C) No.34707/09, that in respect of its Estate at Chengara, it was the subject matter of the judgment of this Court in M/s. Harrisons Malayalam Ltd. v. State of Kerala (2007 (4) KLT 540). It is not in dispute that though the Division Bench held that police have WPC.34707/09 & CNN. CASES 43 to discharge their duties after the Onam holidays in 2007 (within a month, hoped the Court), the impasse continued. Applications were filed seeking time to comply with the directions. Time was being granted. There have been talks between the parties. There have been various developments which need not detain us in this case. The fact remains that the petitioner is clearly not justified in seeking fresh relief in the Writ Petition in regard to the Chengara Estate as correctly contended by Shri. A. X. Varghese, learned Counsel appearing on behalf of the 13th respondent and we refuse to grant any relief to the petitioner in regard to the Chengara Estate.
25. We must now notice the contentions of Shri.P.V.Surendra Nath, learned Counsel appearing on behalf of the Adivasi Kshema Samithi. According to him, adivasis have been the unfortunate victims of exploitation which as spanned several centuries. They have, under the Constitution of India, various freedoms, in particular, the fundamental right to life which embraces the right to shelter and the right to livelihood.
WPC.34707/09 & CNN. CASES 44 Governments have been liberal in making promises. But the adivasis continue to remain landless and at the end of the day the promises have been found to be mere ropes of sand, he complains. There is freedom to agitate. He referred us to the freedom struggle of India. He would point out that the agitations have been peaceful. He would also submit that in these cases dispute has been raised as to title and possession unlike in the Division Bench judgment reported in M/s. Harrisons Malayalam Ltd. v. State of Kerala (2007 (4) KLT
540).
26. The preamble of the Constitution of India declares one of the lofty goals to be achieved as justice which is social, economic and political. After the 42nd amendment to the Constitution, the preamble also contains a declaration that India is to be a socialist State. Of course, the lot of the tribals is unique in the tribulations and the sufferings they have had to undergo, particularly having regard to their cultural uniqueness, their natural sense of alienation and perhaps even their WPC.34707/09 & CNN. CASES 45 helplessness. In our anguish, we have sought to ascertain about the details of the lands which have been vested with the Government under the Land Reforms Act and the Private Forest (Vesting) Act and the steps the Government proposes to deal with the problem of landless adivasis. The following are, inter alia, the details which have been indicated in the Statement of the land in Wayanad. It is stated that 6349.88 acres have been declared as excess land under the Land Reforms Act. Possession of 3762.08 acres was taken. It is stated that about 2587.80 acres could not be taken possession of and 518.88 acres could not be assigned. It is also stated, inter alia, that unauthorised occupation by persons for the last so many years is one of the reasons for non-assigning and not having been taken possession of. It is also stated that there are fourteen cases pending before the High Court. It is stated, inter alia, that as far as the lands vested under the Kerala Private Forests (Vesting And Assignment) Act, 1971, they cannot be assigned after the Forest Conservation Act, 1980 without prior permission from WPC.34707/09 & CNN. CASES 46 the Central Government. It is also stated that Government have accorded administrative sanction for the purchase/acquisition of land for respondent-settling the tribal families in Wayanad District, and that it may take at least one year time. It is also stated that a total extent of 1224.04 hectares has been identified under the Traditional Forest Dwellers Act, 2006, out of which an extent of 940.2616 hectares of land have already been passed by the Sub Divisional Level Committee/District Level Committee for distribution to the eligible Scheduled Tribe persons. Learned Advocate General would submit that the Government will take steps to recover lands in the unauthorised possession of persons. Of course, he submits that there may be landless persons in such possession in which case a different approach may be taken.
27. However, the legal issue which falls for our consideration is whether, burdened as the adivasis are, with perhaps the righteous indignation of being in the special focus under our Constitutional scheme of social justice, only in paper, WPC.34707/09 & CNN. CASES 47 are they entitled to take the law into their hands ?
In his Text Book of Jurisprudence by G. W. Paton (IIIrd Edition), the learned Author, discussing the theories of property, has stated has follows:
"(a) One theory is that property arose by the taking control of a res nullus - occupatio. He who first reduces into possession a piece of property has the best of justifications for remaining in control.
But, the acceptance of what has been flippantly termed the divine right of grab' is not so widespread today as once it was. Maine suggests that the doctrine that occupatio gives title is probably the result of later thought. It is only when the rights of property have gained a sanction from long practical inviolability, and when the vast majority of the objects of employment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominium over commodities in which no prior proprietorship has been asserted. In a crowded world, occupatio applies only to a relatively unimportant degree-less often does the vacant forest await the tiller. The theory of occupatio WPC.34707/09 & CNN. CASES 48 hardly provides a reasonable account of the origin of property, and it is even less satisfactory as a justification of property. Why should he who is lucky enough to seize a thousand acres become owner ?
(b) Another theory regards property as the result of individual labour. Industry should be encouraged by granting to a worker the ownership of any respondent which is created by his toil. But, this doctrine seems to imagince a simple state of society in which each man creates his own products.....
(c) According to the Hegelians, some control of property is essential for the proper development of personality. The community has slowly evolved from status to contract, from group holding to individual property-liberty has grown in the process, and it is the control of property that makes men free. There is in this a valuable truth-he who is wholly dependent on property entrolled by others in their own interest can hardly live the life of the free. But the argument does not justify, but rather criticizes, the present system which allows concentration of property in a minority of the WPC.34707/09 & CNN. CASES 49 community. The Hegelian theory really leads to the conclusion that society should be so organized that every member can, by toil within his powers, acquire such property as is necessary for true self- realization.
(d) Some have considered that private property is a creation of the State and achieved only after a long struggle with the clan....
(e) The increasing tendency in modern times is not to attempt to justify the institution of private property by an a priori theory, but to build doctrines on an analysis of the functioning and social effects of the institution. This approach is sometimes called the functional theory, and it lays down that property which is the result of effort or involves the giving of service is ethically justifiable, but property which is an undeserved claim on the wealth produced by others is not. If property is to be effective in encouraging production, then society should see that it is distributed on proper principles. Durguit would put it that property ceases to be a right and becomes a duty; the owner is no longer free to exercise his arbitrary will but must perform a social function."
WPC.34707/09 & CNN. CASES 50 In his work "Jurisprudence (Revised Edition) The Philosophy and Method of the Law by Edgar Bodenheimer, the learned Author would state as follows:
"The Benthamite legislator who wishes to insure happiness for the community must strive to attain the four goals of subsistence, abundance, equality, and security for the citizens. "All the functions of law," said Bentham, "may be referred to these four heads: to provide subsistence; to produce abundance; to favour equality to maintain security." Of these four ends of legal regulation, security was to him the principle and paramount one. Security, he pointed out, demands that a man's person, his honor, his property, and his status be protected, and that his expectations, insofar as the law itself had produced them, be maintained. Liberty, although a highly important branch of security in his view, must sometimes yield to a consideration of the general security, since laws cannot be made except at the expense of liberty."
Next to security, the legislator must try to foster equality, Bentham demanded. Equality, he WPC.34707/09 & CNN. CASES 51 maintained, "ought not to be favoured except in the cases in which it does not interfere with security; in which it does not thwart the expectations which the law itself has produced, in which it does not derange the order already established." The equality which Bentham had in mind was not an equality of conditions, but merely an equality of opportunity. It was an equality that allows every individual to seek his own happiness, strive after wealth, and live his own life.
Bentham never questioned the desirability of economic individualism and private property. A State, he said, can become rich in no other wise than by maintaining an inviolable respect for the rights of property. Society should encourage private initiative and private enterprise." Writing in Young India on 21.1.1920, Mahatma Gandhi states as follows:
"Every Satyagrahi was bound to resist all those laws which he considered to be unjust and which were not of a criminal character, in order to bend the Government to the will of the people."
(Emphasis supplied) WPC.34707/09 & CNN. CASES 52 Later, on 5.1.1922, he writes in Young India as follows:
"I wish I could persuade everybody that civil dis-obedience is the inherent right of a citizen. He dare not give it up without ceasing to be a man. Civil disobedience is never followed by anarchy. Criminal disobedience can lead to it. Every State puts down criminal disobedience by force. It perishes, if it does not."
(Emphasis supplied)
28. Can the adivasis, however laudable their object, claim an exemption from the operation of the Criminal Law ? Can they, who are allegedly giving guidance and leadership to them, plead that they have a right to commit a crime as a part of the agitation? Can the State and its Officers stand by as mute spectators, when crimes are committed ?
29. We are of the firm view that the answer to all the questions can only be in the negative. The State itself, according to one view, is formed from the social contract between its constituents. They come together, giving up many rights, to be glued together, on the understanding that they will WPC.34707/09 & CNN. CASES 53 be provided with protection of certain rights. A State will but flounder, if it fails to deliver on the fundamental premise of securing security for the citizens and their properties. If State is overwhelmed by lawlessness, it does not require much imagination to conclude that all the so-called precious rights which are declared sacrosanct under our Constitution would but perish. It is thus the bounden duty of the State to ensure that it deals with lawlessness in an appropriate manner, but firmly. No doubt, lawlessness can take various forms. Its content may vary depending on its context. Every act of lawlessness which is tolerated by way of condonation is bound to create the impression in the minds of the law abiding people that lawlessness has its rewards. Another important aspect of tolerating lawlessness with impunity is that over a period of time the distinction between what is a right and wrong, will become blurred in the minds of the common man. In these cases, defiance of the law is attended with considerable publicity. It is certainly not a healthy signal for a political democracy which WPC.34707/09 & CNN. CASES 54 has been operating for more than sixty years. The Courts, in particular being Constitutional Courts, beholden to uphold the Constitution and the laws, have a duty as none other has in the body polity, to see that the laws are enforced.
30. The most important question however, of course, relatable to the issue of operational freedom of the police. There can be no doubt that the police do have operational freedom. They are the experts in their chosen field. However, it is to be noted that the premise of the theory of operational freedom is functional. That is to say, they are free so as to discharge their functions in the most efficient and just manner in varying circumstances. But operational freedom cannot mean that it is reduced to a farce and under the shelter of the concept of operational freedom, the police force are reduced to inertia. If doing nothing, is to be understood as operational freedom, it would amount to condoning omissions on the part of the police to act which itself would be illegal. In other words, if the police have a duty to act while they may have a discretion in law, to WPC.34707/09 & CNN. CASES 55 decide how best to act and the methodology to be employed as are dictated to by the circumstances, the people whom they are dealing with, the terrain they are acting in and by other imponderables, they cannot shirk their responsibility to act so as to discharge their duties. Operational freedom also would mean that they will act without being influenced by any extraneous considerations. Nor can they come under dictation from any quarters unless it be legally supported. In this case, we must notice certain features. It has been the case of the learned Advocate General that after the date he gave an assurance, the assurance has been honoured. It is the further case of the learned Advocate General that in regard to the petitioner in W.P (C) No.4545/2010, though there had been encroachments, they have been removed. We have already noticed the pleading indicating that removal at a particular time would have led to bloodshed. We also notice the argument of the petitioners that no serious efforts have been taken to remove the encroachers subsequently. The case was also adjourned citing the holding of WPC.34707/09 & CNN. CASES 56 a conference by the Chief Minister. (We got the distinct impression that efforts were afoot to get the encroachers removed). It is to be noted that there cannot be any dispute that the encroachment is illegal, and that the encroachers have to be removed.
31. Here, in the facts of these cases, we must observe that for whatever reasons it is, tribals and the petitioners would say that non-tribals also have trespassed on the private lands, and for which cases have been charged. If the rule of law is to prevail, such misadventures, however, noble the cause might be, should not be tolerated by the State and its instrumentalities. There can be no doubt that display of any laxity or helplessness by the Authorities will only usher in more such and perhaps worse incidents of rank-lawlessness. We must also note a point of distinction between the facts of these cases and the facts of the case reported in M/s. Harrisons Malayalam Ltd. v. State of Kerala (2007 (4) KLT 540). Therein, there were thousands of persons who had encroached upon the land in question, whereas WPC.34707/09 & CNN. CASES 57 in the facts of these cases, the number of encroachers is far fewer.
32. In WPC.No.4545/2010, there is a contention taken by the learned Advocate General that no further directions are necessary in this case. He would also submit that having regard to the rejection of the application filed for assignment of the land in question and having regard to Rule 5 of the Land Assignment Rules, it may not be appropriate for this Court to order protection, when the petitioner is bound to surrender the land to the Government.
Rule 5(b) of the Kerala Land Assignment Rules, 1964 reads as follows:
"5. Maximum limit to be assigned for cultivation.-
(1) The extent of land that shall be registered in favour of a single family for personal cultivation by members of the family shall not ordinarily exceed
-
(b) in the case of lands held on lease, whether current or time expired or by way of encroachment WPC.34707/09 & CNN. CASES 58 not considered objectionable, the lessee or the encroacher as the case may be will, be eligible for assignment of not more than 50 cents of land, whether wet or dry, in the plains, and one acre of land, whether wet or dry in hilly tracts. Land, if any, held in excess of this area shall be surrendered to Government and no compensation shall be payable for the lands so surrendered."
33. Shri K. Ramakumar, learned senior counsel would contend that in the circumstances of the case, even now protection must be granted. He would further contend that having regard to the findings of the civil court as they stand, the petitioner cannot be treated as an encroacher. He would also submit that having regard to Rule 1A of the Land Assignment Rules, Rule 5 would not apply in respect of lease of lands planted with coffee, etc. under a lease. Rule 1A, inter alia, provides as follows:
"Nothing contained in these Rules shall apply to or affect.- assignment of Government lands made for specific purpose of cultivating Tea, Coffee, Rubber, Cinchona and Cardamom."
WPC.34707/09 & CNN. CASES 59
34. Learned Advocate General would submit that there is no lease as such proved. No doubt, it is the case of the official respondents that the lands in the possession of the petitioner will be resumed only under the provisions of the Land Conservancy Act and after fulfilling the principles of natural justice.
35. We notice the following findings of the civil court in the interlocutory order passed after hearing the defendants, namely the government of Kerala and the Tahsildar, Sulthan Bathery:
"The fact that Exts.A1 to A4 Puncha Chits issued by the Government to Pathma Prabhu Gowder, prima facie, shows that he was approved as tenant by the Government at that time." ......... "But, from the fact that in the partition of 1958 and after 14 years in the partition of 1972 also, the plaint schedule property was included in the properties to be partitioned and the sharer to whom the plaint schedule property was prepared to accept it shows that the plaint schedule property was also treated in the family of the plaintiff as the other properties of the family"...... "The date of Ext.A1 Pathma Prabhu WPC.34707/09 & CNN. CASES 60 Gowder was in possession of the plaint schedule property. After Ext.A43 partition deed, Shri M.P. Veerendrakumar was in possession and after Ext.A44 of the year 1972, the plaintiff is in possession of the plaint schedule property. So, it cannot be accepted at this stage that the plaintiff is in unauthorised possession".
36. Petitioner has been clearly in possession of the land for a long period of time. The matter is at any rate pending consideration before the civil court. It may not be appropriate for us to record a finding that either there is a lease or not, in these proceedings, and having regard to the contents of the interim order passed, it may not be appropriate to hold that the petitioner is duty bound to surrender the land under Rule 5. We are of the view that, having regard to the circumstances obtaining, the movement culminating in the trespass or rather attempted trespass which was foiled, it may not be just to deny the benefit of an order for police protection to the petitioner.
37. Under the Police Manual, no doubt, the instructions are provided as to the manner in which the police are to tackle WPC.34707/09 & CNN. CASES 61 such situations. Inter alia, they provide for using tear gas first. Police can then resort to a lathi charge. Firing, naturally is to be resorted to as a last measure. Section 129 of the Code of Criminal Procedure provides power with the Officers to deal with unlawful assemblies. The Executive Magistrate or the Authorised Police Officer may proceed to disburse such assembly by force. They have the power to arrest if necessary and confining persons who form part of the assembly, to disburse such assembly.
38. In the Statement filed by the Deputy Collector, Land Reforms, Wayanad, it is inter alia stated that 2587.80 Acres of land could not be taken possession and one of the reasons mentioned is unauthorised occupation by persons for the last so many years. Under Section 96 of the Kerala Land Reforms Act, the landless advasi agricultural labourers are among the categories entitled to assignment of excess land vested with the WPC.34707/09 & CNN. CASES 62 Government. We note further that under Rules 19 and 20 of the Kerala Land Reforms (Ceiling) Rules 1970, the Officer shall, inter alia, take possession of the land after removing any unauthorised occupation by using such force as he thinks fit. We would think that the provisions cast a duty on the part of the Authorised Officer to recover possession by removing any unauthorised occupant.
39. The upshot of the above discussion is that the petitioners are entitled to succeed. The encroachers must be removed from the lands in the possession of the petitioners. Necessarily, we cannot direct the official respondents to remove the encroachers by also dictating to them the manner in which it is to be done. That is a task for the District Magistrate and the Police Officers to achieve. We would only remind them of the procedure which has been mentioned in the Police Manual to which we have made a brief reference in our Judgment. We are WPC.34707/09 & CNN. CASES 63 of the view that in the facts and circumstances obtaining, there must be a time limit also fixed to remove the encroachers. Hence the Writ Petitions are disposed of as follows:
As regards the issue relating to the landless adivasis, we take note of the Statement filed. We also take note of the submission of the learned Advocate General, referred to earlier, that action will be taken against persons in unauthorised occupation of the lands as contained in the Statement and record the same. We also notice that there are directions issued by the Courts including the Apex Court directing assignment of lands in favour of deserving adivasis.
The interim orders passed in all these cases directing protection to be granted, are made absolute. We further direct that the District Magistrate, Wayanad and the Superintendent of Police, Wayanad to take all steps as per law and remove all the encroachers from the lands which are the subject matter of these cases at the earliest and, at any rate, within a period of one WPC.34707/09 & CNN. CASES 64 month from today. We make it clear that we are not granting any order to remove the encroachments in the Chengara Estate in W.P.(C).No.34707 of 2009 wherein the case of the adivasis is represented by the 13th respondent.
Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk.
// True Copy // PS to Judge WPC.34707/09 & CNN. CASES 65 K.M. JOSEPH, JUDGE WPC.34707/09 & CNN. CASES 66 M.L. JOSEPH FRANCIS, JUDGE kbk.