Kerala High Court
Munnar Woods vs The State Of Kerala on 22 July, 2009
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15416 of 2007(I)
1. MUNNAR WOODS,A PARTNERSHIP FIRM
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. THE TAHSILDAR,TALUK OFFICE,
3. THE REVENUE DIVISIONAL OFFICER/
4. THE DISTRICT COLLECTOR,
5. K.SURESH KUMAR,I.A.S.,
6. RISHIRAJ SINGH,I.P.S.,
For Petitioner :SRI.K.JAYAKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :22/07/2009
O R D E R
S.SIRI JAGAN, J.
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W.P(C).No.15416 of 2007
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Dated this the 22nd day of July, 2009
J U D G M E N T
The petitioner in this writ petition is a partnership firm. They are challenging Ext.P1 order dated 18.5.2007 of the 4th respondent District Collector, Idukki, by which 2.84 acres of property jointly owned by the partners of the petitioner firm in Sy.Nos.84/1-1 and 84/1-2 in Pallivasal Village in Devikulam Taluk, have been ordered to be resumed by the Government for violation of Rule 14 of the Rules for Lease of Government Lands for Cardamom Cultivation, 1961 Ext.P.1 was passed pursuant to Ext.P10 show cause notice dated 9.1.2007, in which, it was alleged that the running of a resort by the petitioner in the property by converting the land reserved for cultivation of cardamom is in violation of Rules 36 and 37 of the 1936 Rules for grant of Patta for cultivation of cardamom, condition No.4 of the said rules, Rules 7, 11 and 24 of the Rules for Lease of Government Lands for Cardamom Cultivation, 1961 (hereinafter referred to as the 1961 Rules), and condition Nos.7, 11, 14, 16 and 17 of the order under which the lease has been granted.
2. According to the petitioners, on receipt of Ext.P10 show cause notice, directing the petitioner to show cause why the patta/lease granted in respect of the land reserved for cardamom w.p.c.15416/07 2 cultivation, should not be cancelled and the land resumed by the Government, the petitioner filed Ext.P11 reply explaining that the land belongs to the partners of the firm absolutely, they having brought the same by sale deed No. 456/2003, dated 27.1.2003 of Kothamangalam Sub Registrar's office, which is maintained as a cardamom plantation, in which a resort is constructed in the most eco-friendly manner, without cutting any trees or altering the nature of the land. They also claimed to have produced documents to prove their contentions. Thereafter, the petitioner was served with Ext.P12 notice dated 8.5.2007 directing the petitioner to appear for a hearing before the Collector at 2.30 p.m. on 16.5.2007, with all documents of title in respect of the property. According to the petitioner, on that day, the petitioner along with his advocate was present in the office of the Collector from 1 p.m. onwards with documents and Ext.P13 note explaining their contentions. However, the Collector was not present in his office. They waited in the office till 5 p.m. and returned, since the Collector did not come till the closure of the office hours. Despite the same, Ext.P1 order was passed stating that the petitioner did not appear for the hearing despite receipt of notice and directing resumption of the land for violation of the 1961 Rules. Pursuant to Ext.P1, the resort constructed spending crores of rupees was razed to the ground on 21.5.2007 without even considering the plea of the w.p.c.15416/07 3 petitioner for time to remove the valuables from the resort. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs:
"i. a writ of certiorari or any other appropriate writ order or direction quashing Exhibit P1 dated 18th May 2007 issued by the District Collector as illegal and unsustainable in law.
ii. issue a writ in the nature of mandamus commanding the respondents 1 to 4 to restore to the petitioner possession of the land having an extent of 2.84 acres of property in survey No.84/1-1 and 84/1- 2 of Pallivasal Village, Devikulam Taluk resumed under Exhibit P1 forthwith or at any rate within a time frame to be fixed by this Hon'ble Court.
iii. Any other appropriate writ, order or directions as this Hon'ble court may deem fit on the facts and in the circumstances of the case and allow this petition with all costs."
3. In support of his claim for title the petitioner traces his title thus:
The land formed part of 7 acres and 69 cents in Sy. No.197 in Pallivasal Village, which belonged to the erstwhile Travancore State. By Ext.P8 agreement dated 17.12.1133 (M.E.) which, according to the petitioner, corresponds to 1.8.1938 as per English calendar, registered as document No.28 of 1114 of Devicolam Sub Registrar's office, the erstwhile Travancore Government, acting through the Devicolam Divisional Commissioner, executed under the Cardamom Rules 1935 (hereinafter referred to as the 1935 Rules), 7.69 acres of land comprised of 4.84 acres in Sy.No.177 and 2.85 acres in Sy.No.197 in Pallivasal Village was assigned in favour of one Pylee Varghese. On the w.p.c.15416/07 4 security of Ext.P16 mortgage deed dated 18.11.1963 registered as No.459 of 1963 of Devicolam Sub Registrar's office in respect of 2.84 acres in Sy.No.197 in Pallivasal Village, the Government of Kerala sanctioned a loan of Rs.4000/- to the said Pylee Varghese for cultivating cardamom. Later on, on re-payment of the loan amount with interest, the Government of Kerala released the property from the mortgage in favour of Smt.Mariamma Varghese, widow of Pylee Varghese, the said Pylee Varghese having died in the meanwhile. The said Smt.Mariamma Varghese sold 2.84 acres in Sy.No.197 to one Kurian by Ext.P7 sale deed dated 22.6.1978, registered as document No.984 of 1978 of Devicolam Sub Registrar's office. Out of the said 2.84 acres, the said Kurian sold 1.42 acres each to P.J.Paul and P.D.Koshy, by two sale deeds, both dated 6.4.1994, registered as document Nos.1320 and 1321 of 1994 of Devicolam Sub Registrar's Office, produced in the writ petition as part of Ext.P3 series of documents. The said P.J.Paul and P.D.Koshy together sold the 1.42 acres obtained by each of them to Sri.K.A.Joseph and M.S.Jayakumari (partners of the petitioner firm) by sale deed dated 27.1.2003 registered as document No.458 of 2003 of Devicolam Sub Registrar's office, which also forms part of Ext.P3 series of documents. According to the petitioner, as evidenced by Ext.P15 extract from the Basic Tax Register maintained in the Pallivasal Village Office, the said property w.p.c.15416/07 5 was mutated originally in favour of Pylee Varghese and later in the name of P.D.Koshy and P.J.Paul. They also rely on Ext.P4 series of tax receipts to prove that land tax was being received from the partners of the petitioner and their predecessors-in-interest as pattadars in respect of the property.
4. The petitioner contends that the assignment in favour of Pylee Varghese by the erstwhile Travancore Government was an absolute assignment, although for cultivation of cardamom, without any condition for resumption in the event of non-cultivation with cardamom. Further, According to the petitioner, the 1935 Rules are no longer in force in view of the repeal provisions of the Travancore Cochin Government Land Assignment Act, 1950 and the Government Land Assignment Act, 1960. Therefore, even assuming that under the 1935 Rules, the land could have been resumed for non-cultivation of cardamom, since the Rules themselves stand repealed, the Collector could not have invoked the said Rules for resumption of the land. A further contention raised is that in so far as no lease has been granted under the 1961 Rules, invoking of the provisions of those rules is also unsustainable. According to the petitioner, the Collector never had any consistent case as to his source of power to issue Ext.P1 order and in any view of the matter the action is without jurisdiction in so far as the source of power cannot be traced to any provision of law now in force. w.p.c.15416/07 6
5. A counter affidavit has been filed by a later incumbent of the office of the District Collector, Idukki, in which the contention taken is that the petitioner is a trespasser into Government land and they have no valid title to the land. Therefore, according to them, the petitioner can be evicted summarily under the Kerala Land Conservancy Act. The averment of the petitioner that the then District Collector was not present in office on 16.5.2007 is denied by the person who filed the counter affidavit. It is further contended that being part of unreserved forest, the land would come within the purview of the Forest Conservation Act, 1960. They also claim that in view of ROC No.7959/41/Rev. dated 19.6.1942, which was issued before the completion of the proceedings for issue of patta under the 1935 Rules, the registry is terminable on alienation without permission and since the original assignee had alienated the land without permission, the Government is empowered to cancel the registry and resume the land. The learned Government Pleader contends that it is the petitioner who does not have a consistent case regarding their title to the property. He points out that the specific contention of the petitioner is that at the time of purchase, the land was an abandoned coffee plantation, whereas in all documents including the sale deed in their favour the land is described as a cardamom plantation. He further points out that in Ext.P7 sale deed executed by Mariamma, wife of w.p.c.15416/07 7 Pylee Varghese himself, the property is described as Kuthakappattom lands, and in Ext.P3 sale deed executed in favour of the partners of the petitioner by P.J.Paul and P.D.Koshy, Kuthakapattom is also mentioned. He points out further that in the schedule to Ext.P5 plaint in the suit filed by the petitioner, the property is described as 'Sirkar pattom'. Therefore, according to the learned Government Pleader, the petitioner did not have a consistent case regarding their title to the land. He argues that in Ext.P8 agreement, Pylee Varghese was to pay the balance land value in five instalments and the petitioner has not been able to produce any evidence regarding payment of the instalments, nor have they produced the patta issued under the 1935 Rules, in the absence of which, the petitioner cannot claim valid title to the land. When admittedly it was Government land, and the petitioner could not prove a valid assignment in their favour or their predecessors-in-interest, the petitioner is only a trespasser and the Government is entitled to resume the land as such. Therefore, according to the learned Government Pleader, Ext.P1 order and the action of the Government are perfectly valid and proper even if a wrong provision of law is mentioned therein. The Government Pleader also points out that in view of the decision of the Supreme Court in State of Kerala and others v. Vincy Cherian and others, 2008 INDLAW SC 929, the question as to whether despite coming into force of the w.p.c.15416/07 8 1960 Act and the Rules framed thereunder, the 1935 Rules still survive, is still at large pending before Division Bench, for considering which, in that case, the Supreme Court has remanded the matter to the High Court. He also contends that Ext.P19 order of the Maharaja of Travancore came into force before the registry proceedings in favour of Pylee Varghese was completed and therefore the condition therein that in the event of the land being transferred, the land is liable to be resumed, becomes applicable to that assignment, in which case since the widow of the said Pylee Varghese has transferred the assigned land, the assignment is liable to be terminated and the land resumed by Government.
6. Before going into the rival contentions, I am constrained to comment upon a disturbing attitude of the Government, which have come to light in the course of arguments, revealed by the decision relied upon by the Government Pleader himself. In Vincy Cherian's case (supra), originally by order dated 3.3.2006, a Division Bench of this Court, in W.A.No.2090 of 2004, directed the Government of Kerala to consider the application of the respondents before the Supreme Court, for registry of land in terms of the provisions of the Cardamom Rules (Travancore) 1935. Challenging that order of the Division Bench, the State of Kerala contended before the Supreme Court that in view of S.9(3) of the Government Land Assignment Act, 1960, the w.p.c.15416/07 9 Government Land Assignment Act III of 1097 (Travancore) and the Cardamom Rules 1935 framed thereunder stood repealed and therefore, an application for assignment under those 1935 Rules which are no longer in existence cannot be directed to be considered. The very same Government, like a cantankerous private litigant, in this case takes the diametrically opposite contention that the State is justified in resuming the land in question relying on the very same provisions of the Cardamom Rule 1935, which, they simultaneously contend before the Division Bench in W.A.No.2090 of 2004, can no longer be pressed into service for considering an application under those Rules, since those Rules stand repealed by the Government Land Assignment Act, 1960. I am unable to understand how a State Government can, in two pending cases, take two diametrically opposite contentions of law, to suit the occasion. I am of opinion that it is unbecoming of a State which swears by the Rule of Law to take up such totally inconsistent contentions on law, merely to win a case. I am at a loss to understand what stand the State would take if I am to refer this case to the Division Bench, on that question and the two cases are heard together. However, I am not inclined to refer this case to the Division Bench on that question, since the counsel for the petitioner submits that they are prepared to accept the stand of the Government that the Cardamom Rules, 1935, can still be pressed into w.p.c.15416/07 10 service, if applicable and they only contend that in this case, the reliance on those Rules for the action of the Collector is misplaced. I express my strong disapproval of such attitude of the State for winning a case. A responsible democratic government is duty bound to take a definite stand on a question of law, and merely for winning both cases, shall not take diametrically opposite contentions in two cases on the same question of law, which if permitted would lead to chaos in administration.
7. Coming to the merits of the case, I find considerable merit in the contention of the petitioner that the respondents have no consistent case on the issue involved in the writ petition. The action against the petitioner is initiated by Ext.P10 show cause notice, which itself is inconsistent. It refers to both patta and lease granted to the petitioner and directs the petitioner to show cause why the patta/lease should not be cancelled. In Ext.P10, the Collector is not sure as to what is to be cancelled, whether it is patta or lease granted to the petitioner. It alleges violation, by the petitioner, of the provisions of the Cardamom Rules 1936 (sic for 1935) and violation of the 1961 Rules. The 1935 Rules do not contain any provision for lease of Government land for cardamom cultivation. The provisions therein provide only for assignment of land on registry. The 1961 Rules do not contain any provision for assignment of land to anybody. As the name w.p.c.15416/07 11 of the Rules itself makes it clear (Rules for Lease of Government Land for Cardamom Rules, 1961) the same relates to lease of Government land only. Ext.P10 refers to violation of the terms of an order granting lease. They have not produced copy of any such order granting lease. They do not have possession of any records either of the patta or the lease referred to in Ext.P10. Then it is anybody's guess as to how they have come to the conclusion that the petitioner has violated conditions in both. At the same time, they find fault with the petitioner for not producing the original patta issued to them and argues that since they have not produced the same they have no title to the property. It is amusing to note that after directing the petitioner to show cause why the patta/lease issued to the petitioner should not be cancelled, the very same authority contends that no patta is produced to prove title. Then again after alleging violation of the terms and conditions of an order granting lease, they now contend that there is no such order. Further, without even seeing the patta or lease, in Ext.P10, the 4th respondent alleges violation of conditions stipulated therein.
8. Then again, in Ext.P1 which is the impugned order, there is no mention of the 1935 Rules at all or violation thereof. What is found therein is two violations of the 1961 Rules. The first is that contrary to the conditions of lease, the property leased for cultivation of cardamom has been used for construction of a resort. The second is w.p.c.15416/07 12 that in violation of Rule 14 thereof, the land has been alienated without permission from the District Collector. Therefore, Ext.P1 order presupposes the grant of a lease for cardamom cultivation under the 1961 Rules and yet they are not able to produce any order granting such lease.
9. In the counter affidavit filed in this case, they make a turn around. Therein, there is absolutely no mention whatsoever about the 1961 Rules or violation thereof, which is the only ground on which Ext.P1 order has been passed. Instead the 4th respondent takes the stand that the petitioner is a rank trespasser on a land which belongs to the Government and therefore, the petitioner can be summarily evicted under the Land Conservancy Act and that the District Collector is perfectly justified in doing so, apparently justifying Ext.P1 under the Kerala Land Conservancy Act, although neither in Ext.P10 nor in Ext.P1 is there any reference whatsoever to the Kerala Land Conservancy Act. The procedure for eviction under the Kerala Land Conservancy Act and the Rules by issuing notices in the forms prescribed under the Rules is also not complied with.
10. In the counter affidavit they seek to controvert the contention of the petitioner regarding title also on the basis of the 1935 Rules, contending that Ext.P8 is only an agreement which says that on payment of the amount in instalments mentioned in Ext.P8, w.p.c.15416/07 13 the land would be assigned to Pylee Varghese for the purpose of cardamom cultivation. According to the 4th respondent, there is nothing to show that Pylee Varghese had obtained patta by paying the instalments and therefore, the petitioner is a trespasser.
11. Lastly, in the counter affidavit, yet another contention is taken that the land forms part of unreserved forest, which cannot be used for non-forest purpose, which the petitioner has done by constructing a resort thereon, violating the provisions of the Forest Conservation Act, 1980. They have produced Ext.R1(a) communication from the Forest Conservator, which does not contain any reference to the land in question.
12. As such inconsistency at every stage is the hallmark of their contentions in this case and District Collector could not with any amount of certainty state as to under what provision of law the impugned action was initiated and completed. In fact, their entire case is a bundle of contradictions.
13. In addition to the inconsistency, the petitioner alleges dishonesty also on the part of the then District Collector, who passed Ext.P1 order. According to the petitioner, although their representative along with their advocate, was present for the hearing on 16.5.2007, the Collector was not present in the office till 5 p.m. on that day. The petitioner has produced Ext.P2 affidavit of the Advocate who swears to w.p.c.15416/07 14 the fact that they were present for the hearing and at that time and the confidential assistant of the Collector told them that the Collector was at Munnar, 2= hours away from his office and that fresh notice of hearing would be issued to them. Despite the same, in Ext.P1 order it is stated that the petitioner was not present for hearing, which according to the petitioner, is totally incorrect and mala fide. The author of Ext.P1 has not chosen to file an affidavit controverting the said allegations. Instead, the present incumbent of the office of the Collector states in the counter affidavit that the Collector was present in the office on 16.5.2007. It is further stated that neither the representative of the petitioner nor the advocate of the petitioner was present in the office on that day. I am at a loss to understand how, the present Collector, who was nowhere in the scene at the relevant time, could swear to such facts which are not in his personal knowledge.
14. It distresses me to note that in another case before me an identical allegation was raised against the same District Collector, who passed Ext.P1 order. In W.P.(C).No. 24415/2007 I directed the same District Collector to consider and dispose of a representation after affording an opportunity of being heard to the petitioner in that writ petition. Cont. case No.1709 of 2007 was filed by the petitioner therein alleging that an order was passed by the District Collector without hearing the petitioner. There also the allegation was that w.p.c.15416/07 15 although pursuant to the notice fixing a hearing, the petitioner was present in the office of the District Collector, the Collector was away and no hearing was conducted. But the Collector filed an affidavit stating that the petitioner appeared before him and he was heard by the Collector, which was strongly disputed by the petitioner. Since it was word against word, I did not proceed further and closed the case, leaving the petitioner to challenge the order passed on the ground of want of opportunity of being heard also and expressing displeasure about the manner in which the District Collector had dealt with the matter. I also disapproved of the attempt of the District Collector to put the blame on the Advocate General's office for his default in filing his response to the allegation of contempt of court. In that order, I also noted that the very same District Collector was earlier summoned in another case for non-compliance with another order of this Court. From what was at stake for the petitioner in this case, I am inclined to believe that the petitioner herein would not risk being absent for the hearing on 16.5.2007. Taking into account the facts and circumstances of the case, I am inclined to believe the affidavit of the advocate of the petitioner and disbelieve the statement in Ext.P1 that the petitioner was not present for the hearing. However, I leave it at that, since I am inclined to consider the validity of Ext.P1 order on all contentions of both parties in this writ petition without remanding the case for fresh w.p.c.15416/07 16 hearing, since it would serve no purpose except to protract the resolution of the dispute between the parties.
15. Having considered the contentions regarding inconsistency raised by the petitioner, I would be failing in my duty, if I do not consider the contention raised by the Government Pleader, regarding inconsistency in the documents of the petitioner. It is true that the petitioner contended that at the time of purchase of the property in 2003, the property was an abandoned coffee estate and that all the documents produced by the petitioner in support of his claim on title describe the property as a cardamom plantation. It is also pointed out that Ext.P5 copy of the plaint in the suit filed by the petitioner describes the tenure of the property as Government lease. It is also true that in Ext.P7 sale deed Mariamma, widow of Pylee Varghese refers to the patta issued to her husband as under the Kuthakappattom Rules. But what is stated therein is that her husband obtained assignment of the land from the Government as per Kuthakapattom Rules. That document also expressly states that Mariamma had absolute rights over the property and what is conveyed by that document is her proprietary rights (jenmom rights) in the property. It is also true that in the sale deed in favour of the partners of the petitioner the word 'kuthakappattom' is seen mentioned. But that is a reference to any appurtenant rights to the property and not to w.p.c.15416/07 17 the tenure of the property sold as such. It is also true that in Ext.P5 plaint copy the tenure of the property is given as Government lease. But the same cannot be regarded as a glaring inconsistencies in the case of the petitioner as sought to be made out by the learned Government Pleader so as to defeat the claim of title to the property by the petitioner. Unlike that of the 4th respondent, the consistent case of the petitioner is that the property belonged absolutely to them on the basis of valid title obtained by their predecessor-in-interest under the 1935 Rules which was conveyed to them by successive valid sale deeds.
16. Since the learned Government Pleader has dwelt on the question of want of title for the petitioner on the property as the main plank of his arguments, I shall next deal with the question as to whether the petitioner has title to the property as contended by them. Of course, before considering that issue, I must deal with the objection in the counter affidavit that the question of title cannot be established in a writ petition and that since the petitioner has already filed a civil suit, they cannot be permitted to proceed with both the suit and the writ petition simultaneously. Regarding the first contention, I note that the respondents do not dispute any of the documents produced by the petitioner. When the documents are not disputed, there cannot be any bar in considering on the basis of admitted documents, whether those w.p.c.15416/07 18 documents establish title in favour of the petitioner for the purpose of deciding the sustainability of Ext.P1 order, which is under challenge in the writ petition. Regarding the suit, from Ext.P5 copy of the plaint, I note that the suit is only for an injunction from trespass, whereas in the writ petition, what is challenged is Ext.P1 order of the District Collector passed after filing of the suit, ordering resumption of the land for violation of the 1961 Rules, which challenge is maintainable in a writ petition. Hence it cannot be held that the suit and this writ petition are for identical reliefs as sought to be made out by the learned Government Pleader. There is no inviolable rule that in every case of disputed title the party should be relegated to a suit. On the basis of admitted documents the question of title can be considered in a writ petition also, especially when the same can be decided on the basis of admitted materials on record, which is the case here. Therefore, both the objections of the 4th respondent are not sustainable on this point.
17. It is also to be noted that in Ext.P10, the petitioner was directed to show cause why the patta/lease should not be cancelled, which was not issued to the petitioner but only to his predecessor-in- interest. A patta or lease issued to a person cannot be cancelled without notice to him/her on their legal heirs, especially since he/she would be the one who is in the know of the real facts of the case. w.p.c.15416/07 19 Moreover, in this case, the patta sought to be cancelled includes 4.84 acres in Sy.No. 177 also, in addition to the subject property.
18. I further note that since by Ext.P1, the land was ordered to be resumed from the petitioner, the petitioner was admittedly in possession of the properties from the very fact that the property has been ordered to be resumed from them. Going by the documents produced by the petitioner, all of which are not disputed by the respondents, the possession of the present owners and their predecessors-in-interest relates back to 1938. In other words, the land was in possession of the petitioner and the persons through whom they claim for 68 years on the date of Ext. P10 show cause notice.. Therefore, even assuming that they have no title, the respondents have to answer a claim for adverse possession.
19. Another aspect to be noted is that Ext.P8 covers 7.69 acres, out of which only 2.84 acres is now proceeded against by Ext.P1. I specifically asked the Government Pleader as to whether any action has been taken against the balance property comprised of 4.84 acres in Sy. No. 177 covered by Ext.P8. The Government Pleader could not give me any answer either way.
20. Now turning back to the question of title, the petitioner traces the title to as far back as Ext.P8 dated 17.12.1113 (M.E). Ext.P8 admittedly is a registered agreement executed under Rule 10 of the w.p.c.15416/07 20 1935 Rules, which rule reads thus:
"10. When the preliminary order of registry in favour of the applicant is passed by the Commissioner, Devicolam, or when orders passed by the higher authorities are received by him, he shall issue a notice to the applicant directing him to pay the first instalment of Taravila as per Rule 9 within 30 days of the receipt of the notice, and execute an agreement for the payment of the remaining instalments subject to the conditions laid down in Rule 49 of the Revised Puduval Rules. The Commissioner may also sanction the extension of the period for the payment of the first instalment and the execution of the agreement by 15 days on the application of the party. When all the instalments are paid, the Commissioner shall pass the final order of registry directing the Tahsildar to issue a patta to the assignee. If the amount is not paid or the agreement is not executed within the time specified above, the Commissioner shall cancel the preliminary order for registry if it was passed by him, or recommend the cancellation of the same if it was passed by a higher authority. If the preliminary order for registry is cancelled, the deposit made with the application shall be forfeited to Government."
Ext.P8 is issued by the Travancore Government, represented by the Devicolam Divisional Commissioner, in favour of Pylee Varghese, who is described therein as the 'purchaser'. It states that the properties described in the schedule to the agreement has been assigned under the Cardamom Rules 1935 in favour of the purchaser and that he has already paid Rs.52.23.05 (Rupees fifty two, twenty three chakrams and five kasu) as part of the land value and the agreement is executed for the purpose of ensuring payment of the balance instalments as per rule 10 of the 1935 Rules. It also states that until all the balance instalments are paid, the ownership of the properties transferred as per the grant and mentioned in the schedule to the agreement would continue to vest with the Government and the purchaser will have no right to alienate the same. If the instalments are not paid within the w.p.c.15416/07 21 stipulated time despite notice, the Devicolam Commissioner can cancell the assignment or cause the same to be cancelled. It is provided further therein that the purchaser agrees that if at any time the Government requires any part of the properties described in the schedule, for the purpose of construction of any road or pathway, the Government is entitled to return of that part of the land without payment for the improvements, but paying the proportionate land value paid by the purchaser. Rule 10 of the 1935 Rules stipulates that when all the instalments are paid, the Commissioner shall pass the final order of registry directing the Tahsildar to issue a patta to the assignee. The petitioner has not been able to produce the final order on registry or the patta. They would submit that on enquiry with the revenue office, they were informed that records regarding payment of instalments of land value for assignment of land. The learned Government Pleader would argue that since the petitioner is unable to produce either the patta or the proof of payment of balance instalments, the petitioner cannot rely on Ext.P8 to prove their title. The petitioner would submit that after more than 60 years, it is impossible for them to produce those documents and the subsequent documents and the conduct of the Government themselves evidenced by admitted registered documents, would prove without any reasonable doubt that Pylee Varghese had obtained absolute title over w.p.c.15416/07 22 the land. For this the petitioner relies on Ext.P16 mortgage deed dated 18.11.1963, registered as no.459 of 1963 of Devicolam Sub Registrar's office, executed by Pylee Varghese in favour of Governor of Kerala, in respect of the 2.84 acres in Sy.No.197 in Pallivasal Village, which is part of the land included in Ext.P8 agreement, in respect of the assignment in favour of Pylee Varghese. According to the petitioner, the fact that the Government themselves accepted the property as security for the repayment of the loan amount would prove beyond doubt that the land was assigned in favour of Pylee Varghese and he had absolute title over the same which title was accepted by the Government. Subsequently the Government themselves executed Ext.P9 release deed dated 15.6.1977 registered as document no.724 of 1977 of Devicolam sub Registrar's office, releasing the property to the widow of Pylee Varghese discharged from the mortgage and all moneys secured thereby. According to the petitioner, these two documents go to show that the Government themselves had accepted the absolute title of Pylee Varghese to the property. The learned Government Pleader would contend that Ext.P16 is executed by Pylee Varghese describing himself as the absolute owner of the property, which cannot be relied upon to prove title of Pylee Varghese to the property if otherwise he did not have title to that property.
21. I am inclined to agree with the petitioner. It is common w.p.c.15416/07 23 knowledge that in the ordinary course of business, the Government would accept mortgage of a property as security for loan advanced by the Government, only after verifying the title of the mortgagor to the property scrupulously. Normally draft of the mortgage deed is supplied by the concerned department to the mortgagor, which only is engrossed in stamp paper, signed by the mortgagor and registered with the appropriate Sub Registrar's Office. There is absolutely no circumstances in this case to suspect that Ext.P16 was executed without undergoing that normal procedure. Having once accepted the title of Pylee Varghese to the property and advanced money on the strength of the mortgage of that property to Pylee Varghese, it is idle for the respondents to now turn around and dispute the title of the said Pylee Varghese and consequently that of the petitioner to the property. The devolution of the property from Pylee Varghese to the petitioner is vouchsafed by Ext.P7 and Ext.P3 series of documents as an uninterrupted chain. Ext.P15 series of copies of Basic Tax Registers of the property, wherein Pylee Varghese originally and P.D.Koshy and P.J.Paul later are described as owners of the said land, adds credence to the said fact. The same is further fortified by Ext.P4 series of tax receipts accepting tax from the partners of the petitioner and the erstwhile owners describes them as pattadars. I am satisfied that these documents would without any doubt go to prove the title of the w.p.c.15416/07 24 petitioner to the property.
22. Of course, the learned Government Pleader would try to cast some doubt on the same, contending that these documents were not produced before the District Collector during the hearing. He also points out that Ext.P16 mortgage deed was not even produced alongwith the writ petition as originally constituted, and that the same was added later by amending the writ petition. I am of opinion that the documents being documents registered with the appropriate Sub Registrar's Office, which is not disputed by the respondents, the same cannot be discounted on that ground alone. Further, the petitioner having become the owner only in 2003 and the documents being decades old, some delay in tracing the same is only to be expected and condoned. It is all the more so when the respondents themselves do not have any records relating to the transactions which are proved by the documents and they themselves do not have any documents whatsoever to disprove the same.
23. The learned Government Pleader relying on the decision of the Supreme Court in Neelakantan Damodaran Namboothiri v. Velayudhan Pillai Narayana Pillai, AIR 1958 SC 832 and the decision of this Court in Sarojini v. Santha Trading Co. & Others, 1969 KLT 412, would contend that a recital in a document in confirmation of pre- existing rights in a person, who had no such right in fact, would not w.p.c.15416/07 25 convey any right in the property to him. In my opinion that reliance of these decisions in this case is misplaced, since the document in which the pre-existing right is confirmed is executed in favour of the very same person who is now disputing that right and that person accepted the mortgage created by that document as security relying on the recital regarding the pre-existing right, which right if was not there, they would not have acted on the basis of that document to advance money to the executant of that document. Here, if the petitioner did not have the title to the property the Government would not have advanced loan to Pylee Varghese on the basis of Ext.P16 mortgage. In fact at the relevant time the Government was the best person to ascertain the title of Pylee Varghese on the property since they only assigned the property to him and they must have been in possession of documents to confirm the same.
24. Having thus settled the question of title in favour of the petitioner, let us move on to the question as to whether the 4th respondent can resume the land on any of the grounds relied upon by them for such resumption. In Ext.P10 show cause notice, violation of both 1935 Rules and 1961 Rules are cited as reasons. But Ext.P1 confines to violation of 1961 Rules. In the counter affidavit, 1961 Rues is given a go-by and the 4th respondent reverts to violation of 1935 Rules and violation of the Forest Conservation Act as an added ground. w.p.c.15416/07 26 As I have already observed, the 4th respondent was never sure of any of the grounds cited by him, obviously. Ext.P1 is liable to be quashed for the simple reason that it is abundantly clear that there never was any lease under the 1961 Rules and therefore, the question of violation of conditions of such a lease and the provisions of 1961 Rules do not arise at all, which is the only ground on which Ext.P1 order was passed.
25. Notwithstanding the same I shall now examine the contentions of the learned Government Pleader on the basis of the 1935 Rules also. The allegation in Ext.P10 is that Rules 36 and 37 of the Rules and condition no. 4 of the grant have been violated. Rules 36 and 37 read thus:
"36. These Rules do not convey any right to mines or minerals in the lands granted or to water power.
37. The disposal of cardamom lands should be in the strict accordance with these Rules. Any departure from these Rules requires the sanction of the Government."
Obviously, Rule 36 has no application to the land in so far as there is no contention that right to mines or minerals or to water power are involved in this case in relation to the property. Rule 37 is a general rule and the same can be invoked only in conjunction with violation of some other rule or condition of the grant. Condition no. 4 referred to in Ext.P10 must be condition no. 4 of form B, which is the form in which patta is to be issued under the Rules. That condition reads thus: w.p.c.15416/07 27
"4. In the case of concessional grants, should the lands be alienated at any future date in contravention of these Rules, it is open to the Government to resume the portion of land alienated."
For cancelling patta for violation of that condition it must be shown that the grant in question is a concessional grant. The Rules contemplate three kinds of grants, which are (1) Registry of land without auction, (2) Concessional Registry and (3) Auction sale of land. For(1) and (2) the assignee has to pay land value. But for (3) the assignee need not pay land value and probably that is why the grant is named concessional grant. Procedure for Registry of land without auction is detailed in Part II of the Rules, concessional Registry in part III and Auction sale of land in Part IV. Part III relating to concessional Registry comprises of only one Rule, namely Rule 11, which reads thus:
"11. Lands may be assigned for cardamom cultivation to Hillmen (within the meaning of the term explained in Rule 1 of the Rules relating to the treatment of Hillmen passed under the Forest Regulation) without auction and without payment of Tharavila or survey or demarcation charges, subject to the following conditions:-
(a) The Commissioner, Devicolam, is competent to sanction the assignment of three acres of land under these rules to a single family.
NOTE:- The expression 'single family' includes one's self, his wife or her husband and children living together and dependent on the parent. Those sons who live separate with their wives and children constitute a separate family, even though their parents may be alive. Living together and depending on the parents for livelihood are the conditions which constitute 'single family'.
(b) Assessment at the prevailing rate may be imposed on the lands thus assigned as per Rule 2(iii) supra.
w.p.c.15416/07 28
(c) Back arrears of assessment shall not be levied.
(d) Assignments made under this Rule are subject to the other
general conditions regarding concessional assignment of lands specified in Rules 26 to 31 of the Revised Puduval Rules. NOTE:- In respect of concessional assignments also, the list of the royal and reserved trees standing on the land should be signed by the assignee who shall be responsible for their safe preservation. The patta to be issued to the assignee should specify the conditions of assignment."
The very reading of the Rules and the fact that as recited in Ext.P8, land value has been realised from Pylee Varghese conclusively shows that the grant in favour of Pylee Varghese is not a concessional grant. Except condition no. 4 of Form B relating to concessional grants, nowhere in the Rules is there any mention even of resumption of land on any eventuality except in Rule 28. Ext.P8 shows that the same is an agreement as provided in Rule 10. Rule 10 relates to Registry of land without auction. Although the Rules provide for grant of registry of land for cultivation of cardamom, the Rules do not provide for resumption of land for non-cultivation of cardamom or alienation of the land. There is also no provision for resumption in the event of user of the land for other purposes. Of course, Rule 28 provides thus:
"28. Holder of cardamom land may remove the under-growth and fell such trees as it is necessary to clear in order to admit sufficient sunlight for the cultivation of cardamom but they shall not fell any tree exceeding 4 feet in girth at a hight of 3 feet from the ground before getting sanction from the Commissioner, Devicolam. All applications for felling such trees should in the first instance be made to the Forest Ranger having jurisdiction over the area, who, after inspecting the gardens from which the trees have to be removed, should forward his report on each application to the Division Forest Officer of the Division, who shall in turn forward it to the Commissioner, Devicolam, for final w.p.c.15416/07 29 decision. The Commissioner, Devicolam, shall then grant or refuse permission in writing. If any tree is felled in contravention of this Rule, double the value of the timber as assessed by the Commissioner shall be levied by way of damages. It shall also be open to the Commissioner, Devicolam, when fellings have been extensive to recommend that the land be resumed by the Government. Government will, however, pass orders on his recommendation only after giving an opportunity to the assignee for preferring his objections against its acceptance. If wanton destruction of the tree growth is established, Government may order the resumption of the land from the assignee without any liability to refund Tharavila paid by him at the time of assignment. Government may also order the recovery of any amount by way of damages, as they may deem fit. "
This rule authorsies resumption only when tree fellings have been extensive and in case of wanton destruction of tree growth. Mere isolated fellings of trees only attracts payment of damages at double the value of timber as assessed by the Commissioner, Devicolam. Neither in Ext.P10 nor in Ext.P1 is there even an allegation of felling of trees, let alone extensive tree felling or wanton destruction of tree growth.
26. Fortunately, for the petitioner, they have the advantage of the report of the Advocate Commissioner in I.A.No.433/2007 in the suit filed by them before the Devicolam Munsiff's Court, prepared on 17.5.2007, 3 days prior to the destruction of the structures in the property, by the respondents, which report is produced as Ext.P6. That report shows that in that property there were only 6 cottages and a larger building comprised of restaurant, conference hall and kitchen. Ext.P6 further states that the balance property, not covered by the cottages, is occupied by cardamom cultivation. It goes on to describe w.p.c.15416/07 30 that in the property there are 40 coffee plants aged 20 years, 20 jack fruit trees aged 30 years and old silver oak, chandana vayambu, Murikku and mango trees. The nature of the construction is described as traditional, which does not alter the nature of the land, made of laterite stones. That report hardly depicts a picture of extensive tree felling or wanton destruction of trees so as to attract Rule 28. The Rules do not prohibit construction of buildings altogether except that the grant is for cardamom cultivation. In so far as the petitioner still maintained the property as a cardamom plantation with only 6 cottages thereon, even if the Rues authorised resumption for non- cultivation, of cardamom, the respondents cannot make out a case for resumption on that ground also by any amount of conviction. In any event the power to order resumption of land under Rule 28 vests with the Government and not either the Devicolam Commissioner or the District Collector.
27. In the counter affidavit, the 4th respondent supports the resumption based on the proceedings of the Maharaja of Travancore No.ROC No.7959/41/Rev. Dated 19.6.1942, which according to the 4th respondent, empowers the Government to resume land in case of alienation. But as is their wont, usually while filing counter affidavits, the State has not chosen to produce the same alongwith their counter affidavit. But the petitioner has taken the pains to obtain a copy of the w.p.c.15416/07 31 same and to produce it along with their reply affidavit as Ext.P19. The same reads thus:
"Proceedings of the Government of His Highness the Maharaja of Travancore read:-
1. G.O R.O.C. No.4153/29/Rev., dated 30th September, 1935, issuing the Cardamom Rules under Section VII of the Land Assignment Act III of 1097.
2. G.O. R.O.C. No.4719/40/Rev., dated 12th October, 1940, restricting 60 acres as the maximum area assignable to a single applicant.
3. Letter C.No.1269/117, dated 6th January 1942, from the Division Peishkar, Kottayam, regarding the registry of an area of 139.39 acres of Cardamom lands in Pallivasal pakuthi to a single applicant.
ORDER R.O.C.7959/41 REV., DATED TRIVANDRUM, 19TH JUNE 1942/5TH MITHUNAM 1117 In the Cardamom Rules issued on the 30th September, 1935, no restriction was made in respect of the area of Cardamom land as single to a single applicant as large extents of Cardamom land were the available for registry. Applicants from Travancoreans for Cardamom lands were also very few in number. In recent years Travancoreans have taken to cardamom planting in larger numbers and it has become difficult to meet the increasing demands for assignment of areas of Cardamom cultivation. In order to ensure a fair distribution of the available area among as may applicants as possible, Government in G.O. dated 12th October 1940 read above, ordered that not more than 60 acres of cardamom land should be assigned in favour of a single applicant. It was also ordered that encroachments should be evicted in all cases, instances have also come to the notice of Government where individual applicants after getting an order for registry of large areas of Cardamom land have alienated there even before the registry proceedings were completed.
Government have now come to the conclusion that the registry of Cardamom lands should be better regulated with a view to safeguard the interests of bona-fide cultivators. They accordingly direct that the following further conditions should be observed in disposing of applications for Cardamom lands;
(i) the registry of Cardamom lands is not to be regarded any longer as a matter of right or of course but should be taken as intended to foster the cultivation by Travancoreans of the cash crops for the best advantage of the State. The discretionary character of the assignment of w.p.c.15416/07 32 Cardamom lands should not be over looked.
(ii) the extent of sixty acres referred in the G.O. R.O.C. No.4719, 40/Rev., dated 12th October 1940, is the maximum and not the minimum area available to any applicant.
(iii) the registry of Cardamom lands will be made terminable, if the holding or any part of it is alienated by sale, mortgage with possession or lease for over 10 years in favour of any one without the previous approval of Government and the lands so dealt with will be liable to be resumed by Government without payment of compensation for improvements.
(By Order) G.Parameswaran Pillai, Chief Secretary to Government"
The argument raised by the learned Government Pleader is that Ext.P19 proceedings were issued before the date of payment of the last instalment payable by Pylee Varghese as per Ext.P8 agreement and before issue of patta to Pylee Varghese as provided under Rule 10 and therefore, the conditions stipulated in Ext.P19 apply to that grant, in which case, since the widow of Pylee Varghese alienated the property to another by Ext.P7, the Government is justified in resuming the land for violation of that condition. The petitioner contends that Ext.P19 has been made expressly applicable at the time of disposal of applications for cardamom lands, from the date of Ext.P19 and since the application of Pylee Varghese for assignment had been disposed of prior to Ext.P19, making the grant in his favour, Ext.P19 is not applicable to that grant. I find merit in the contention of the petitioner. Ext.P19 lays down some further conditions to be observed w.p.c.15416/07 33 in disposing of applications for cardamom lands in addition to those stipulated in the 1935 Rules. Therefore, those conditions are to be observed while disposing of applications after the issue of Ext.P19.
Ext.P19 is dated 19.6.1942. In Ext.P8 dated 17.12.1113 (M.E) (which, according to the petitioner, corresponds to 1938 and according to the 4th respondent 1939), it is stated that on the application of the said Pylee Varghese the grant has been made and the agreement is executed for ensuring payment of instalments of balance land value on payment of which patta shall be issued. Therefore, the disposal of the application of the said Pylee Varghese was over prior to the date of Ext.P8. What remained was only payment of balance instalments and issue of patta. Therefore, the conditions in Ext.P19 cannot be made applicable to the grant in favour of Pylee Varghese and therefore, there cannot be any resumption on the basis of the transfer by Ext.P7 by the widow of Pylee Varghese. Further in the absence of the patta itself, it cannot be said that such a restrictive condition was included in the patta. Since it is the Government who sets up such restrictive condition for the assignment, the burden is on them to prove such restrictive condition. The Government themselves effected mutation of the property in favour of the transferees as evidenced by Ext.P15 series. Ext.P7 is dated 22.6.1978 and Ext.P10 is dated 9.1.2007. After almost 29 years, it is too late in the day for the Government to invoke w.p.c.15416/07 34 the condition, which they have not been able to prove in respect of the grant in favour of Pylee Varghese.
28. I am of opinion that this is a fit case where the doctrine of desuetude should be applied to the invocation of the 1935 Rule. That doctrine is of English origin. However, our Supreme Court has in Municipal Corporation for City of Pune v. Bharat Forge Co. Ltd., AIR 1996 SC 2856, held that, that doctrine applies to Indian statutes as well. paragraph 34 of that decision reads thus:
"34. Though in India the doctrine of desuetude does not appear to have been used so far to hold that any statute has stood repealed because of this process, we find no objection in principle to apply this doctrine to our statutes as well. This is for the reason that a citizen should know whether, despite a statute having been a disuse for long duration and instead a contrary practice being in use, he is still required to act as per the dead letter. We would think it would advance the cause of Justice to accept the application of doctrine of desuetude in our country also. Our soil is ready to accept this principle: indeed, there is need for its implantation, because persons residing in free India, who have assured fundamental rights including what has been stated in Article 21, must be protected from their being, say, prosecuted and punished for violation of a law which has become dead letter. A new path is, therefore, required to be laid and trodden."
The doctrine of desuetude was again referred to by the Supreme Court in the decision of Cantonment Board, Mhow and another v. M.P. State Road Transport Corporation in AIR 1997 SC 2013, thus in paragraph 16:
"16. Coming to the conclusion of the applicability of doctrine of desuetude M.Lekhi, the learned senior counsel strongly relied upon the decision of this Court in Municipal Corporation for City of Pune v. Bharat Forge Company Ltd. (1995) 3 SCC 434: (1996 AIR SCW 449) and submitted that the provisions of the Motor Vehicles Taxation Act must be held to be of disuse as no grant as provided in Section 7 of the Taxation Act has ever been made at any point of time after the enactment of the w.p.c.15416/07 35 said Act in 1947. This contention is wholly unsustainable in law in asmuch as we are not concerned with the question of grant to local authorities and Cantonment Boards as provided under Section 7 of the Taxation Act but we are concerned with the leviability of tax on Motor Vehicles under Section 3(2) of the Taxation Act. It is nobody's case that no tax was being levied on Motor Vehicles which is used or kept for use under Section 3(2) of the Madhya Pradesh Motor Vehicles Taxation Act 1947. That apart to apply the principle of desuetude it is necessary to establish that the statute in question has been in disuse for long and the contrary practice of some duration has evolved. In other words to make the aforesaid principle applicable in the case in hand it is required to be established that the provisions of Section 3(2) of the Motor Vehicles Taxation Act has been in disuse for a long period and that the imposition of tax on entry of Motor Vehicles into the Cantonment limit has been in operation for a fairly long period. Neither of these two ingredients has been satisfied in the case in hand and therefore the aforesaid principle of desuetude is of no application to the case in hand."
In this case, even assuming that the 1935 Rules have not been repealed by the later enactments, the same was not invoked ever since the Government Land Assignment Act, 1960 and the Rules thereunder came into force and for deciding matters of assignment of land and allied matters the 1960 Act and the Rules thereunder only are being enforced. The Government themselves took the stand in Vincy Cherian's case (supra) that those Rules cannot be enforced on coming into force of the 1960 Act. That proves beyond any doubt that for over 47 years those Rules have not been enforced and no land assigned under those Rules have been resumed. That being so, the doctrine of desuetude can be applied to the case to hold that by disuse for over 47 years, the Rules have become a dead letter and justice demands that those Rules should not be invoked to deprive the petitioner of the property which has been in possession of the petitioner and their w.p.c.15416/07 36 predecessors-in-interest for over 71 years bona fide believing that the property has been their's absolutely by virtue of the assignment as evidenced by Ext.P8. It is all the more so, since the Government had also not taken any steps to resume the land, even assuming that they had the powers and reason to do so, for years together. Therefore, the petitioner is entitled to be protected from resumption of the land by application of the doctrine of desuetude also.
29. In view of my above findings, Ext.P1 order is not sustainable under the 1935 Rules also.
30. For the first time in the counter affidavit filed, the 4th respondent takes a contention that the property is covered by the Forest Conservation Act, 1960, which prohibits use of the land for any non-forest purposes and therefore, since the petitioner has put the property for construction of a resort, which is a non-forest purpose, without permission from the Central Government, the action taken by the 4th respondent by Ext.P1 is sustainable. The very fact that the 4th respondent has chosen to sustain his action on the basis of a ground which is totally absent in Exts.P10 and P1, itself would go to show that he was not sure of the grounds mentioned in Exts.P10 and P1. Further the only document relied upon to show that the property in question is forest land is Ext.R4(a). Ext.R4(a) only states that Pallivasal unreserved is forest as per records of the forest department. But the w.p.c.15416/07 37 same does not state either that the property in question is part of Pallivasal unreserved or that the property in question is part of a forest. Therefore, that document cannot be relied upon to prove that the property in question is a forest. Secondly, in Ext.P6 commission report it is specifically stated that the subject property is surrounded on three sides by private estates and on the fourth side, the property is separated by the Kochi-Madurai National High Way. It is also stated that the property is separated from the other proprieties by clear-cut boundaries protected by barbed wire fence. As such, there is nothing on record to show that the property is part of any forest land. Even assuming that the property forms forest land, there is no provision in the Forest Conservation Act, for resumption of land for user for non- forest purposes. Section 3A of the Act only provides for penalty of imprisonment for a period up to 15 days for contravention of Section 2 which restricts use of forest land for non-forest purposes. Therefore, reliance by the 4th respondent for sustaining Ext.P1 is totally misplaced.
31. The petitioner alleges that after passing Ext.P1 on 18.5.2007, on 21.5.2007 all the structures in the property worth Rs.4 crores have been completely razed to ground and that the replacement costs would come to Rs.9 crores. According to them, they are entitled to be compensated by the respondents for the loss suffered by the w.p.c.15416/07 38 petitioner to the tune of Rs.12 lakhs including business loss. They would point out that after demolishing the structures illegally, by Ext.P14, an amount of Rs.2,99,518.73 has been demanded from the petitioner towards expenses for demolition and removal of the resort, rubbing salt into the wound inflicted by the respondents on the petitioner. They also allege that their fervent pleas for some time to remove the valuables in the buildings even were mercilessly ignored by the respondents. They would allege that the demolition itself was with undue haste the day after the writ petition was filed on 20.5.2007. They would point out that Ext.P1 was served on them on 19.5.2007 evening at 7 O' Clock, which was a Saturday. Although they filed the writ petition on 20.5.2007 during vacation and the matter was to be taken up by the vacation court on 23.5.2007, the demolition was hastily taken up on 21.5.2007 and completed on the same day. They also submit that the suit filed by them for injunction before the District Court, Thodupuzha (Vacation Court), along with Commission application and injunction application came up before the Court on 16.5.2007, on which date the court allowed the commission application and ordered notice on the injunction application. Notice on the injunction application was accepted by the District Government Pleader on behalf of the 4th respondent on the same day and the same was posted for objection and hearing on 31.5.2007. The Commissioner w.p.c.15416/07 39 visited the property on 17.5.2007 and the Devicolam Tahsildar submitted a work memo before the Commissioner for ascertaining certain facts which they wanted to be recorded in the report of the Commissioner. It is after all these that they hastily demolished the buildings on 21.5.2007, which according to the petitioners, smacks of bureaucratic highhandedness. The above facts are not controverted by the 4th respondent in his counter affidavit.
32. I am at a complete loss to understand, why in the name of resumption of land valuable buildings should be demolished. I specifically queried the Government Pleader as to why the buildings had to be demolished, while taking possession of the land. His answer was that the land being intended exclusively for cardamom cultivation, the constructions should not be allowed to remain in the land even for a moment. The answer appeared to be thoroughly unconvincing. It is all the more so, when in Ext.P19 relied upon by the 4th respondent himself, the Government could resume the land after terminating the registry without payment of compensation for the improvements. In any event, the hasty demolition without giving the petitioner sometime to seek legal remedies, in respect of a property which was in the possession of the petitioner and their predecessors-in-interest for over 68 years, especially when the writ petition was to come up for admission on 23.5.2007 and the application for temporary injunction w.p.c.15416/07 40 was to come up on 31.5.2007, of which the 4th respondent had notice, was, at the least, not unavoidable at least for a reasonable period. It is all the more so in this case since the 4th respondent was never sure of his powers to resort to such action which causes loss to the tune of crores of rupees. It is nothing but bureaucratic highhandedness and arrogance of power. I am of opinion that for such irresponsible act of respondents 2 to 6, if, ultimately the State is vicariously made liable to pay damages, the same should be recovered personally from the officers responsible for such wanton destruction and the exchequer should not be burdened with the same.
33. It disturbs my judicial mind to find that, of late, the bureaucracy is increasingly indulging in such highhandedness regardless of law, even attempting to overreach the orders of this court. The infamous Trivandrum Golf Club case is a case on point wherein this court had reprimanded a Government Secretary for a highhanded action overreaching this court while a writ petition was pending before this court. In fact some time back the very same Government Secretary had the audacity to issue instructions to the revenue officers of the State not to implement Section 7E of the amended Kerala Land Reforms Act, which was quashed by this Court. See Institute of Brothers of St. Gabriel v. State of Kerala, 2008 (4) KLT
631. I deem it apposite to quote a passage from that decision here to w.p.c.15416/07 41 buttress the point.
"7. S.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 interest over the land are mattes 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 Ext.P2 reveals a complete ignorance of the system of governance that we have given unto ourselves by the solemn provisions of the Constitution of 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 S.7E was inserted in the Principal Act, it become 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 Ss.99 and 100 of the Kerala Land Reforms Act not to exercise the powers under S.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."
Very recently, a Division Bench of this Court has in the decision of Varghese v. Kerala State Election Commission, 2009 (3) KLT 1, prefaced a judgment thus:
"Discipline decides destiny. This principle aptly applies to the democratically elected representatives of the people going for acrobatic exercises for power, position, money etc. betraying the democratic values. Disciplined democracy, though appear to be a contradiction in terms, is the need of the hour. There is no democracy without democratically disciplined conduct of the people and their representatives....."
I am of opinion that this applies with equal force to the bureaucracy as well. They also must practice discipline and restraint, when they exercise their powers, especially when their acts cannot be reversed w.p.c.15416/07 42 and if such acts are found unsustainable, for damages arising therefrom, the State would be vicariously liable. No harm would be caused if they act with restraint giving the party aggrieved sufficient time to resort to legal remedies if they are entitled to. The action with ugly haste calculated to stifle legal remedies is itself a negation of fairness in action. The present one is a classic example where even after being totally unsure about the legality of his action, the 4th respondent has with unnecessary, undue and ugly haste embarked on an act of wanton destruction of valuable property without giving the petitioner even an opportunity to salvage whatever valuables they could. Such actions should be condemned in the strongest terms. I do so.
34. For all the above reasons, I am satisfied that Ext.P1 and all actions pursuant thereto are totally illegal and unsustainable. Accordingly, Ext.P1 is quashed. The respondents are directed to restore the land resumed from the petitioner, as per Ext.P1, to the petitioner forthwith. If the petitioner has any claim for damages for destruction of the buildings and other actions of the respondents, they are free to approach the appropriate forum where they can adduce evidence to prove their claim and quantum.
In view of my finding that the person who passed Ext.P1 has misused his powers wantonly without being sure of his powers, that w.p.c.15416/07 43 too without hearing the petitioner and falsely stating that the petitioner was not present for the hearing, the petitioner is entitled to costs of this litigation from the respondents, which I quantify at Rs.15,000/-, which shall be recovered personally from the person who passed Ext.P1 and shall not be debited to the exchequer. The costs shall be paid within two weeks.
The writ petition is allowed as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
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P.A. to Judge