Kerala High Court
Institute Of Brothers Of St Gabriel vs The State Of Kerala on 25 September, 2008
Author: V.Giri
Bench: V.Giri
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25074 of 2008(I)
1. INSTITUTE OF BROTHERS OF ST GABRIEL,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE PRINCIPAL SECRETARY TO
3. THE DISTRICT COLLECTOR, IDUKKI.
For Petitioner :SRI.P.RAMAKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.GIRI
Dated :25/09/2008
O R D E R
V.GIRI,J.
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W.P ( C) No.25074 of 2008
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Dated this the 25th September, 2008
J U D G M E N T
Communication issued by the Principal Secretary to Revenue Department to all the District Collectors and all Chairmen of the Taluk Land Board in the State requiring them to keep in abeyance the operation of Section 7E of the Kerala Land Reforms Act brought in by the Amendment Act of 2005 is essentially the subject matter of challenge in this writ petition.
2. Since what has been interdicted in the communication affects the rights of the public in general, I think it is necessary to express the opinion of this Court in certain categoric terms and see that it is brought to the notice of the Government at it's highest level and to the notice of the persons who are at the helm of the affairs of the Government, hoping that they will be gracious enough to spare some time and consider the aspects highlighted in the judgment.
W.P ( C) No.25074 of 2008 2
3. Petitioner purchased an extent of 8 hecatres, 49 ares and 42 sq.meters of land in Sy. No.20/1 of Chinnakanal village as per five separate documents executed in the year 1994 and 1995. According to the petitioner, it derived rights over 13 acres of land from it's predecessors in interest. Apparently, the right was being exercised by the predecessors in interest for a period of 30 years. The property was acquired for the purpose of establishing a school. While so, the petitioner received a notice stated to have been issued under the Kerala Land Conservancy Act, 1957 stating that they have encroached upon 15.007 acres of Government land and requiring them to show cause why they should not be evicted. Subsequently, an order was passed by the competent authority requiring the petitioner to vacate from 13.3678 acres of land in Sy No.20/1 of Chinnakanal village.
4. Petitioner submitted an appeal before the Sub Collector. But the same was rejected under Exhibit-P1 order. Thereafter, petitioner has submitted Exhibit-P3 statutory appeal before the District Collector - the 3rd W.P ( C) No.25074 of 2008 3 respondent. Normally a direction to the District Collector to pass orders on Exhibit-P3 would suffice. Petitioner points out that no purpose would be served in prosecuting the remedy before a statutory authority in the light of Exhibit-P2 communication issued by the Principal Secretary to the Revenue Department. The same reads as follows:
"I am to direct you to keep the operation of Section 7E, as envisaged in the Kerala Land Reforms (Amendment) Act 2005 (Act 21/06) in abeyance until further orders".
5. I heard learned counsel for the petitioner and learned Government Pleader.
6. Section 7E of the Kerala Land Reforms Act brought in by the Amendment Act of 2005 reads as follows:
"7E. Certain persons who acquired lands to be deemed tenants:
Notwithstanding anything to the contrary contained in Section 74 or section 84 or in any other provisions of this Act, or in any other law for the time being in force or in any contract, custom or usage, or in any judgment, decree or order of any court, tribunal or other authority, a person who at the commencement of the Kerala Land Reforms (Amendment) Act, 2005, is in possession of any land, not exceeding four heactares in extent, acquired by him or his W.P ( C) No.25074 of 2008 4 predecessor-in-interest by way of purchase or otherwise on payment of consideration from any person holding land in excess of the ceiling area, during the period between the date of the commencement of the Kerala Land Reforms Act, 1963 (1 of 1964) and the date of commencement of the Kerala Land Reforms (Amendment) Act, 2005, shall be deemed to be a tenant."
7. Section 7E of the Act was brought into force to confer fixity of tenure on certain class of persons subject to the fulfillment of the conditions mentioned therein. Therefore the possibility of acquiring the right, title and and interest over the land are matters for adjudication by the competent authority with reference to a provision that has been inserted in the Kerala Land Reforms Act and which became a law on receipt of assent from the President. (The Principal Act is included in the 9th Schedule to the Constitution). This is now purported to be directed to be kept in abeyance at the instance of the Principal Secretary, Revenue Department. This Court is constrained to observe that Exhibit P2 reveals a complete ignorance of the system of governance that we have given unto ourselves by the solemn provisions of the Constitution of W.P ( C) No.25074 of 2008 5 India. Doctrine of subjugation of all persons to the Rule of law including statutory law is a message that is conveyed by the provisions of the Constitution in loud and clear tones. Once therefore Section 7E was inserted in the Principal Act, it becomes law. It is inconceivable for the Government to direct, not only the District Collectors in the State but also the quasi judicial authorities otherwise constituted under Section 99 and 100 of the Kerala Land Reforms Act not to exercise the powers under Section 7E of the Land Reforms Act and to ignore as it were, a provision in the Land Reforms Act. Exhibit P2 and any decision taken by the Government (which I presume must have been taken because otherwise the consequences really cannot be contemplated) are completely without jurisdiction.
8. In the result, Exhibit P2 is declared to be null and void. It is quashed. Third respondent shall proceed to consider Exhibit P3, in accordance with law, and take a decision thereon within a period of three months from the date of receipt of a copy of this judgment. W.P ( C) No.25074 of 2008 6
9. Registry shall communicate a copy of this judgment to the Chief Secretary to Government and also to the Principal Secretary to the Revenue Department.
It is made clear that I have not expressed any opinion on the merits of petitioner's claim. It remains to be adjudicated by the competent authority in the course of disposal of Exhibit P3.
(V.GIRI,JUDGE) ma W.P ( C) No.25074 of 2008 7 W.P ( C) No.25074 of 2008 8