Varghese Kurien vs Dr.A.Jayathilak on 30 September, 2022

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Kerala High Court

Varghese Kurien vs Dr.A.Jayathilak on 30 September, 2022

This Contempt Case arises from the Judgment of this Court in which this Court directed the Government to consider grant of lease of the land which was granted on a patta for agricultural activities. Patta was revoked on noting that land has been utilised for commercial purposes in violation of the patta conditions. The petitioner, who invested huge amounts relying upon the Government Order dated 22/2/2019, approached the Government for lease of the above land where he has constructed the building. The Government rejected the request noting that no guidelines have been formulated to grant lease of such land. At the outset, I must say that no contempt is made out and this contempt petition will have to be closed. However, taking note of the fact that the Government in principle agreed to grant lease of the land, it is appropriate that the Government formulates guidelines Cont.Case (C).No. 598 of 2021 -:2:- for granting such lease. It is to be noted that the Government is having ample power under Rule 24 of the Kerala Land Assignment Rules, 1964 to assign land dispensing with the provisions contained in the land assignment rules, in view of public interest. If the land over which such construction is made is not a threat to the ecosystem, it is appropriate that the land is assigned on lease as decided by the Government in the order dated 22/8/2019 (Ext.P10 in W.P. (C).No.4820/2020). It is to be noted under law, one can be the owner of the building while another can be the owner of the land. No doubt, when lease conditions are violated, the Government can ask the owner of the building to remove the structure and to restore the land to them. It is also possible that on failure, the Government may demolish the structure and recover the expenses from the lease holder. Merely because the building is allowed to be constructed in a lease hold land, no right can be claimed by the lease holder over the land.

Cont.Case (C).No. 598 of 2021

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2. The Apex Court in M/s. Jeewanlal (1929) Ltd., Calcutta v. Its Workmen [AIR 1961 SC 1567] held that:

(11) We consider that both these contentions are unsound and the petitioners have made out a clear case of the violation of their fundamental rights.There has been some argument before us as to the true legal effect of the sanction granted in 1909 to Ramji Das subject to the conditions adverted to earlier: whether it was a lease in favour of the firm Faquir Chand Bhagwan Das; whether it was a licence coupled with a grant or an irrevocable licence within the meaning of S. 60(b) of the Easements Act, 1882. These are disputed questions which we do not think that we are called upon to decide in the present proceeding. The admitted position, so far as the present proceeding is concerned, is that the land belonged to the State; with the permission of the State Ramji Das, on behalf of the joint familv firm of Faquir Chand Bhagwan Das, built the dharmasala,temple and shops and managed the same during his lite time. After his death the petitioners,other members of the joint family, continued the management. On this admitted position the petitioners cannot be held to be trespassers in respect of the dharmasala temple and shops; nor can it be held that the dharmasala,temple and shops belonged to the State, irrespective of the question whether the trust created was of a public or private nature. A trustee even of a public trust can be removed only by procedure known to law. He cannot be removed by an executive fiat. It is by now well settled that the maxim, what is annexed to the soil goes with the soil, has not been accepted as an absolute rule of law of this country; see Thakoor Chunder Parmanick v. Ramdhone Bhuttacharjee, 6 Suth WR 228; Beni Ram v. Kundan Lall, 26 Ind App 58, and Narayan Das v.

Jatindranath, 54 Ind App 218: (AIR 1927 PC 135). These decisions show that a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the land by the application of the maxim quicquid piantatur solo, solo cedit. It is, therefore, impossible to hold that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason of their being on the land belonging to the State. If the State thought that the constructions should be removed or that the condition as to resumption of the land should be invoked, it was open to the State to take appropriate legal action for the purpose. Even if the State proceeded on the footing that the trust was a public trust it should have taken appropriate legal action for the removal of the trustee as was opined by the State's Legal Remembrancer. It is well recognised that a suit under S. 92, Civil Procedure Code, may be brought against persons in possession of the trust property even if they claim adversely to the trust, that is, claim to be owners of the property, or against persons who deny the validity of the trust. Cont.Case (C).No. 598 of 2021 -:4:-

3. In the judgment of Bombay High Court in Laxmipat Singhania v. Larsen and Toubro, Ltd. [AIR (38) 1951 Bombay 205], it was laid down as follows:

(3) Now, before turning to the provisions of the agreement to lease and the lease which I will have to construe in these suits, it would be convenient to see what the legal position is in India regarding the rights of the lessor and the lessee in cases in which a lease of a plot of land is obtained and the lessee puts up a structure thereon. The law in England is that anything affixed to the earth belongs to the lessor and it is not open to the lessee to take it away or to remove it at any rate in cases where it cannot be removed without causing serious damage to the structure. But under the provisions of the T. P. Act the law in India is quite different; and under S. 108 (h) of that Act in the absence of a contract to the contrary, a lessee may, even after the determination of the lease, remove all things which he has attached to the earth, which of course include structures or buildings put up by him. The effect of this provision is that the lessee is the owner of the building put up by him although it is put up on the land belonging to the lessor.

There may thus be two distinct ownerships, one of the land and the other of the structure. That such a position is possible was recognised by their Lordships of the Privy Council in Narayan Das v. Jatindra Nath, 54 I. A. 218 (A. I. R. (14) 1927 P. C. 135). In that case a plot of land, upon which there was a house erected by a lessee of the plot, had been sold for payment of arrears of revenue; and before the removal of the house, the whole property was acquired under the Land Acquisition Act, 1894, and the question that arose was whether the auction-purchaser or the person who put up the house was entitled to compensation in respect of the structures. The learned Subordinate Judge who tried the suit held that the house passed with the land to the auction purchaser by virtue of the revenue sale. On appeal, the learned Judges of the High Court held that the ownership of the building did not pass to the plaintiff on the auction sale, but those who had put up the structure remained owners thereof. Their Lordships of the Privy Council held that what was transferred to the auction-purchaser was land only and not the house. Their Lordships pointed out that in India there was no absolute rule of law that whatever was affixed or built on the soil because a part of it and subject to the same rights of property as the soil itself. This decision to my mind is clear authority for the proposition that a building can be owned by one man and the land by another in India; and that in a case where a lessee puts up a building on a vacant plot of land taken on lease by him, although the lessor may be the owner of the land, the building belongs to the lessee and not to the lessor.

Cont.Case (C).No. 598 of 2021

-:5:- In light of the judgments as above, there is no difficulty for the Government to grant lease of the land alone upon which the construction is being made by the petitioner. With the observation as above, the Contempt Case is disposed of.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE /-

ms
 Cont.Case (C).No. 598 of 2021

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              APPENDIX OF CON.CASE(C) 598/2021

PETITIONER ANNEXURES
ANNEXURE-A1         CERTIFIED COPY OF THE JUDGMENT DATED
                    11.06.2020 IN WPC 4820/2020
ANNEXURE-A2         TRUE COPY OF THE ORDER DATED
                    08.01.2021 BEARING NO.G.O.(RT)
                    86/2021/RD PASSED BY THE 1ST
                    RESPONDENT
ANNEXURE-A3         TRUE COPY OF IA 2 OF 2020 AND IA 3
                    OF 2020 DATED 08.10.2020 IN WPC
                    4820/2020 FOR EXTENSION OF TIME
                    FILEDBY THE GOVERNMENT
ANNEXURE-A4         TRUE COPY OF THE INTERIM ORDER IN IA
                    2/2020 DATED 30.10.2020 IN WPC
                    4820/2020
ADDL.DOCUMENT       ADDITIONAL    DOCUMENT   MARKED   AS
                    ANNEXURE-A8   PRODUCED   ALONG  WITH
                    I.A.No.1/2022
                    TRUE COPY REPRESENTATION DT 5/1/2022
                    SUBMITTED BY THE PETITIONER TO THE
                    PRINCIPAL REVENUE SECRETARY




RESPONDENT'S ANNEXURES
                    REPORT OF THE DISTRICT COLLECTOR
                    IDUKKI DATED 23/7/2020 PRODUCED
                    ALONG WITH MEMO DATED 10/8/2021
                    REPORT OF THE DISTRICT COLLECTOR
                    IDUKKI ON THE SITE INSPECTION DATED
                    26/8/2021 PRODUCED ALONG WITH MEMO
                    DATED 7/9/2021
ANNEXURE-R1(a)      TRUE COPY OF ORDER OF THIS COURT DT
                    21/1/2010 IN WPC 1801/2010

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