Kerala High Court
The Registrar vs K. Raveendran Nair on 23 July, 2012
Author: A.V.Ramakrishna Pillai
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
MONDAY, THE 23RD DAY OF JULY 2012/1ST SRAVANA 1934
LA.App..No. 1132 of 2007 (U)
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[AGAINST THE JUDGMENT DTD.07/04/2007 IN L.A.R.NO.49/2003 OF THE
ADDITIONAL SUB COURT,KOLLAM]
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APPELLANT/2ND CLAIMANT:
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THE REGISTRAR,
UNIVERSITY OF KERALA,
THIRUVANANTHAPURAM.
BY ADV. SRI.GEORGE POONTHOTTAM,S.C.
RESPONDENTS/IST CLAIMANT & RESPONDENT:
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1. K. RAVEENDRAN NAIR,
NANI HOUSE, KOCHUPILAMOODU, MUNDAKKAL,
KOLLAM, REPRESENTED BY THE
POWER OF ATTORNEY HOLDER K. RAJAGOPALAN NAIR,
S/O. KESAVA PILLAI, PAINGALIL VEEDU, KOZHIKODE,
KATTADI P.O, POOYAPPALLI.
2. THE STATE OF KERALA,
REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM.
R1 BY ADVS. SRI.B.KRISHNA MANI,
SRI.JOSEPH T.JOHN,
R2 BY SR. GOVT. PLEADER SRI. S. JAMAL.
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY
HEARD ON 23-07-2012, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Prv.
PIUS C.KURIAKOSE &
A.V.RAMAKRISHNA PILLAI JJ.
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L.A.A . NO. 1132 OF 2007
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Dated this the 23rd day of July, 2012
JUDGMENT
Pius C.Kuriakose,J The University of Kerala, the second claimant before the Land Acquisition Reference Court in a Reference under Section 31(2) of the L.A. Act, is the appellant. The first respondent in the appeal is the first claimant in the reference case. The 2nd respondent-State, through the Land Acquisition Officer, referred the disputes pertaining to compensation with respect to acquisition of 13.90 Ares of land in R.S. 100/1 of Kollam East Village under Section 31 (2) of the Land Acquisition Act. The appellant University claimed title, over an extent of 12 Ares from out of the acquired property, on the basis of gift deed No.2702/99 (Ext.A2) dated 9/8/1999 in favour of the University. The first respondent claimed title for himself on the basis of the deed of cancellation (Ext.A3) of Ext.A2 Gift Deed. The Land Acquisition Officer found that the appellant has L.A.A No. 1132 /2007 2 title and possession over 12 ares, while over the remaining extent of 1.80 Ares, the first respondent has title. However, on the basis of the dispute raised by the first respondent, reference was made to the court and the compensation amount of Rs.28,56,830.74 due in respect of 12 Ares was deposited before the court below. The evidence before the Reference Court consisted of Exts.A1 to A4 on the side of the first respondent and Exts.B1 to B6 on the side of the appellant. Ext.B1 was the original of Ext.A2 gift deed. Ext.B2 was basic tax receipt in respect of the property covered by Ext.A2 for the period of 1999
- 2000. On the side of the first respondent AW1, the power of attorney holder, was examined while on the side of the appellant the University DW1 was examined. The Reference Court, on appreciating the evidence adduced in the case, came to the conclusion that Ext.A3 cancellation deed had the effect of canceling Ext.A2 gift deed and on that basis would answer the reference in favour of the first respondent. To come to such a conclusion the court below would rely on the recitals in Ext.A2 which contains a condition that the property gifted was to be utilised by the donee, the University, for the purpose of L.A.A No. 1132 /2007 3 establishing an educational institution thereon failing accomplishment of which purpose within three years, the property was reverted back to P.Krishna Pillai Memorial Public Charitable Trust and its managing trustee, the donor. According to the court below, if the condition in Ext.A2 gift deed is not complied with on time, status quo ante will stand restored as regards the ownership over the property covered by the Gift Deed.
2. We feel that for appreciating the bone of contentions between the parties it is necessary to refer to the pleadings raised by the parties briefly. It is also necessary to understand the identity of the parties before the Reference Court.
3. The appellant, as already indicated, is the University of Kerala represented by its Registrar. The first respondent is one Raveendran Nair represented by its power of Attorney holder one Sri. Rajagopalan Nair. The contentions raised by the first respondent through his statement of objections were briefly as follows;
4. As the Kerala University did not have sufficient land in its possession within the limits of Kollam Town for establishing L.A.A No. 1132 /2007 4 institution for higher education at the request of the Registrar of the University, the first respondent who is the owner in possession of the land in dispute (12 cents) belonging to P.Krishna Pillai Memorial Public Charitable Trust executed Ext.A2 gift geed in favour of the University in his capacity as the Managing Trustee. The Gift Deed contained stipulation that within three years from the date of its execution, the 2nd claimant shall construct the necessary buildings and other infrastructures and commemorates for different higher education courses. The name of the institution shall be the "University of Kerala, P.Krishhan Memorial Buildings, University Institute of Technology, Kollam (commemoration of the beloved father of the donor). From the date of execution of Ext.A2 the 2nd claimant was given unrestricted right to construct buildings and other structures for the establishment of the stipulated institution. But, the University did not take any steps to construct the buildings or even compound wall separating the property covered by the gift deed from the remaining portion of the property. As the mandatory condition subject to which the gift deed was executed was not complied with, the first L.A.A No. 1132 /2007 5 respondent has resumed the land and was holding it for and on behalf of the Trust in his capacity as the managing trustee. The first respondent has executed a deed of cancellation by which he revoked the gift deed and resumed the property in his possession. At the time when the property was acquired and possession was taken over, the property belonged to P.Krishna Pillai Memorial Trust.
5. The appellant through its claim statement contended that at the time of the acquisition, the property belonged absolutely to the University and was under the Exclusive possession and enjoyment of the University. The property was taken over from the possession of the University on 23/11/2012. The action of the LAO in drawing up a reference under Section 31 (2) of the L.A. Act was wrong. The compensation presently awarded is too low. The University applied for permission with requisite fees for constructing a four storied building to accommodate its institutes of Technology and Teachers Training Centre therein. The Kollam Municipality did not exempt the land from acquisition. The Kollam Municipality did not allow the University to go ahead with its building construction project. L.A.A No. 1132 /2007 6 It is then contended that the first respondent by its letter dated 21/7/1999 informed the Vice Chancellor of the 2nd claimant of his desire to denote 30 cents of land belonging to P.Krishna Pillai Memorial Public Charitable Trust within the Kollam Municipality for running an institution by the University. In the letter it is also specified that the offer was being made with a view to provide more facilities for higher education to the students of Kollam and in the larger interest of the public. The University examined the offer and decided to accept it. It was accordingly that the first respondent executed the gift deed. The University took possession of the property, effected mutation in its favour vide patta No.T.15258. Though the University submitted application for permission for the construction of a four storied building in the property gifted, the application was rejected by the Municipality on the reason that the proposed site is already notified for acquisition for a public purpose as per notification dated 28/07/99. The District Collector also informed the University that the building proposed for the University Institute of Technology is included in M.P.L.A.D.S scheme proposed by Sri.Rajendran M.P. The University has made all L.A.A No. 1132 /2007 7 efforts for the construction of a building. The Legal Services Authority also intervened but the intervention was not fruitful as the Municipality did not agree for a compromise. In the meanwhile, the land acquisition proceedings continued and the land was taken from the University on 23/11/02. The University has taken all the earnest efforts to fulfill the conditions of the gift deed. The conditions could not be fulfiled due to reasons beyond control of the University. The conditions in the gift deed are invalid. The University alone is entitled for the compensation deposited before the court. The donor has no right to receive any compensation. The first claimant (the first respondent herein) is not entitled to cancel the gift which is accepted by the donee. The first claimant was not in possession of the land from 09/08/99 onwards. The first claimant was fully aware of the fact that the land was under notification for acquisition. The first claimant was duty bound to disclose this fact to the University. The University was not aware of any defect in the title. Active concealment of material facts amount to fraud. When performance of a condition is prevented by a fraud, the person perpetrating the fraud is precluded from taking advantage from the circumstances. The L.A.A No. 1132 /2007 8 Reference Court formulated the requisite point as to who among the claimants is entitled to get the compensation amount under deposit and conduct trial. The evidence consisted of AW1 and Exts.A1 to A4 on the part of the first respondent herein and DW1 and B1 to B6 on the part of the University. On evaluating the evidence, the reference court came to the conclusion that acceptance of the gift by the University was subject to an essential condition that the land gifted will be utilised for establishing an educational institution, and that a specific right had been reserved with the donor and that if the donee does not establish the educational institution within three years, the property will revert back to P.Krishna Pillai Memorial Public Charitable Trust and the Managing Trustee of that Trust, who is the donor, has an unfettered right to take possession of the property for and on behalf of the Trust. According to the court below, if no educational institution is established within three years of Ext.P1 gift deed, the status quo ante will be restored and the gift deed will be of no legal consequence. Hence, the court below held that the gift did not take effect and accordingly concluded that the appellant University is not entitled for any L.A.A No. 1132 /2007 9 portion of the compensation. On the total compensation of Rs. 31,04,232/- it was ordered that the first respondent can draw Rs. 28,39,236.4/- being the proportionate compensation due for 13.12 Ares covered by the gift deed. As regards the balance amount relating to 01.12 Ares in Sy. No.42/109 of Kollam East Village, no direction is passed for releasing that portion to any of the parties for the reason that the first respondent did not produce any document substantiating his claim.
6. In this appeal various grounds are raised assailing the judgment of the Reference Court and we have heard the submissions of Sri.George Poonthottam, the learned counsel for the appellant University and those of Sri.B.Krishnamani, the learned counsel for the first respondent rival claimant. We have heard the learned Government Pleader Sri.S.Jamal also for the second respondent/State.
7. Our attention was drawn by Sri.Poonthottam to the notification under Section 4(1) dated 08/11/99 which shows that the proposal was there even at that time for acquisition of the subject properties for the purpose of car parking facilities for Kollam Railway Station. Sri.Poonthottam referred to Exts.B1, B2, L.A.A No. 1132 /2007 10 B3, B4 and B5 and submitted that B3 will show that the application for building plan submitted by the University was rejected by the Municipality for the reason that the property is under acquisition proceedings. Strong reliance was placed by Mr.Poonthottam on the judgment of the Supreme Court in Asokan v. Lakshmikutty and Others (2007(13) SC cases 210) and it was argued that a deed of gift once accepted cannot be unilaterally revoked or cancelled by the donor. In the absence of re-conveyance by the donee in favour of the donor, the gifted property would remain as the property of the donee.
8. Sri.B.Krishnamani, the learned counsel for the first respondent, per contra, would submit that Ext.B1 is not a gift deed. It is only a licence given to the University to establish an educational institution. All licences are revocable and in the instant case it has been revoked validly by the cancellation deed. Section 126 of the Transfer of Property Act was referred to by Sri.Krishnamani who would place reliance on commentaries by Mulla 7th edition of Page No.796. According to him, Ext.B1 is not an absolute gift but it is a gift made subject to conditions. The learned Counsel argued that when a gift is made subject to L.A.A No. 1132 /2007 11 conditions, there is no transfer of gift unless and until the conditions are fulfilled. In the above context Sri.Krishnamani relied on an early judgment of this Court in Subramonian Asari v. Kanni Ammal Velamma (1952 KLT 686). For the same proposition Mr..Krishnamani relied on the judgment of the SC in Thakur Raghunath Ji Maharaj v. Ramesh Chandra (2001(5) SCC
18), and the judgment of the Full Bench of this Court in Velayudhan Vivekanandan v. Ayyappan Sadasivan [1975 KLT 1 (FB)] and also the judgment of this Court in Balakrishnan v. District Magistrate, Kozhikode and Ors (1975 KLT 20). He referred to the judgment in OP.30412/99 of this Court. According to Sri.Krishnamani, there is no infirmity whatsoever in the impugned judgment. He also pointed out that on the strength of the impugned judgment, the first respondent could draw the compensation amount from the court below and according to him that also should deter this Court from interfering with the impugned judgment.
9. We have given our anxious consideration to the rival submissions addressed at the Bar. We have carefully read through the impugned judgment. We have made a thorough re- L.A.A No. 1132 /2007 12 appraisal of the entire evidence on record before the court below including the oral evidence given by AW1 and DW1. Ext.B4 letter dated 21/7/1999, Ext.B5 letter dated 3/8/1999, Ext.B1 Gift deed, Ext.B2 Tax Receipt, Ext.B3 order rejecting the building plan submitted by the appellant, Ext.A3 cancellation deed are the documents specifically scrutinized by us.
10 . We have considered the ratio of the various decisions cited at the Bar. On a scrutiny of Ext.B1, with reference to the requirements of a valid gift provided under Sections 122 and 123 of the Transfer of Property Act, there is no difficulty for us to conclude that Ext.B1 discloses a valid and complete gift. The Hon'ble Supreme Court in Lakshmikutty And Others ((2007) 13 Supreme Court Cases 210) has analysed the law relating to gift in depth and held that once a gift is completed, the same cannot reinstated. In that judgment their Lordships relied on the judgment of this court in Alavi v. Aminakutty (1094 KLT 61 (SN) authored by Paripoornam, J, in which it is held that "
" It is settled law that where the deed of gift itself recites that the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him.L.A.A No. 1132 /2007 13
Such a recital raised a rebuttable presumption and is ordinarily sufficient to hold that there was delivery of possession. Therefore, the burden lies on those who allege or claim the contrary to prove affirmatively that in spite of the recitals in the gift deed to the effect that possession has been delivered over, in fact, the subject matter of the gift was not delivered over to the donees".
On going through Ext.B1, we find that the same discloses an absolute transfer of the title of the donor and his possession of the acquired property.
11. There are enough materials in the case to accept the contention of the appellant that under Ext.B1 the donee, the appellant University, has accepted the gift. Mutation of name has been effected in the revenue records by Ext.B3. Basic tax is paid against Ext.B2 and it is seen that all acts of title and possession over the property which is subject matter of the gift has been exercised by the donor. Thus the gift in question has become complete and irrevocable. The deed of cancellation (Ext.A3) relied on by the first respondent is executed unilaterally by the first respondent just three days prior to the taking over of the possession of the property by the acquisition authority. The records relating to the acquisition will clearly reveal that L.A.A No. 1132 /2007 14 possession was taken over from the appellant university. This means that Ext.A3 cancellation has been of no effect and the first respondent has not been able to re- assume the possession on the strength of Ext.A3. We cannot accept the finding of the court below that, on account of non compliance of the condition in the gift deed that the gifted property shall be utilised for the purpose of establishing an educational institution, the property has reverted back to the donor. The donor has no legal authority to revoke the gift deed or resume possession of the gifted property after acceptance by the donee except through institution of suit for that relief, as laid down in Gopalakrishnan v Rajamma (2006 ( 4) KLT 377). It is important to notice that there is no agreement or contract between the donor and donee in Ext.B1 to perform a specified act, failing which to revert the property or to revoke the gift on failure of such performance, to the donor. In the absence of any such specific contract, the unilateral act of revocation of the gift deed under Ext.A3, in our view, cannot have legal consequence.
12. We will now consider whether the appellant is to blame for non establishment of the educational institution on the gifted L.A.A No. 1132 /2007 15 property. It is found that the appellant, after assuming possession of the gift property, had prepared a plan and estimate for the construction of a multi storeyed building on the property and arranged financial source for its construction through M.P.'s Fund of the local M.P. Ext.P6 will show that the appellant applied for a licence from the local authority Kollam Corporation. The licence was declined by the Kollam Corporation on the only reason that the property was under notification for acquisition. We find force in the submission of the learned counsel for the appellant that the donee made efforts to implement the stipulations in the gift deed. But, failure to comply with the stipulations in the gift deed is due to the circumstances beyond the control of the donee or due to supervening impossibility. Donee cannot be treated as a defaulting party enabling the donor to resume possession. This aspect of the matter is not even considered by the court below.
13. The first respondent herein- rival claimant before the reference court, is not the donor under Ext.B1. The donor under Ext. B1 was a Public Trust by name Sri.P.Krishna Pillai Memorial Public Charitable Trust , Kollam. The public trust, being a legal L.A.A No. 1132 /2007 16 person, is competent to put forth its own claim. Significantly the claimant before the LAO and before the Reference Court is one Sri.K.Raveendran Nair through his Power of Attorney holder. The Trust, the original owner of the property has not put forth any claim of possession or for compensation. We drew the attention of Mr..Krishnamani learned counsel for the first respondent to this aspect of the matter. The learned counsel instead of answering this question , would argue that Ext.B1 is not a gift deed, it is only a licence which can always be revoked. The decisions relied on by Mr.Krishnamani, we must say, do not have any application to the facts obtaining in this case.
14. We notice another aspect of the matter.
O.P.No.30412/1999 was instituted by the first respondent before this court challenging the land acquisition proceedings. The appellant was impleaded by the first respondent in that original petition as the 7th respondent. The averments in that original petition revealed that as early as on 16/2/1991 (i.e. long prior to the execution of the gift deed) the property was notified for acquisition. The first respondent initiated action objecting to the acquisition. It is during the course of such action that the L.A.A No. 1132 /2007 17 gift deed is executed and the appellant is put in absolute ownership and possession. It is not only illegal, but inequitable on the part of the first respondent to contend that the compensation for the acquired property should be released to him.
15. The result of the above discussion is therefore is as follows;
The appeal is allowed. The impugned award is set aside. It is found that the appellant, the University of Kerala, is entitled for the amount under deposit towards compensation for the properties covered by the gift deed. As we are told that the amount under deposit was released to the first respondent during the pendency of this appeal, we direct the first respondent to deposit the amount before the Reference Court within a period of three months from today. Sd/-
O JUDGE PIUS C.KURIAKOSE,
JUDGE
Sd/-
A.V.RAMAKRISHNA PILLAI,
JUDGE.
dpk/kns /True copy/ P.S. to Judge.
L.A.A No. 1132 /2007 18