Kerala High Court
State Of Kerala vs Munnar Woods on 22 July, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY,THE 25TH DAY OF JULY 2014/3RD SRAVANA, 1936
WA.No. 1721 of 2009 ( )
------------------------------------
AGAINST THE JUDGMENT IN WP(C) 15416/2007 OF THIS HONOURABLE COURT
DATED 22-07-2009
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APPELLANTS/RESPONDENTS IN THE WP(C) :
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1. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT,
GOVT.SECRETARIAT,THIRUVANANTHAPURAM.
2. THE TAHSILDAR, TALUK OFFICE,
DEVIKULAM.
3. THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR,
DEVIKULAM.
4. THE DISTRICT COLLECTOR,
IDUKKI COLLECTORATE, PAINAVU P.O.,
IDUKKI DISTRICT.
BY SPL. GOVT. PLEADER SMT. SUSHEELA R. BHAT
RESPONDENT/PETITIONER & RESPONDENTS 5 & 6 IN THE WP(C) :
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1. MUNNAR WOODS,
A PARTNERSHIP FIRM REGISTERED UNDER
THE INDIAN PARTNERSHIP ACT, 1932
REP. BY ITS MANAGING PARTNER K.A.JOSEPH,
AGED 56 YEARS, S/O.ASTHAPANOS,
RESIDING AT 37/2990, KALLINGAL HOUSE,
PONOTH ROAD, KALOOR, KOCHI.
2. K.SURESH KUMAR, I.A.S.,
SPECIAL OFFICER FOR EVICTION, CAMP OFFICE AT LB OF KSEB
CHITTIRAPURAM P.O., PALLIVASAL VILLAGE
DEVIKULAM TALUK.
3. RISHIRAJ SINGH, IPS,
SPECIAL OFFICER FOR EVICTION, CAMP OFFICE AT LB OF KSEB
CHITTIRAPURAM P.O., PALLIVASAL VILLAGE
DEVIKULAM TALUK.
R1 BY ADVS. SRI.K.JAYAKUMAR
SRI.P.B.KRISHNAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/12/2013, ALONG
WITH WA. NO.1878/2009, THE COURT ON 25/07/2014 DELIVERED THE
FOLLOWING:
Mn
...2/-
WA.No. 1721 of 2009 ( )
APPENDIX
PETITIONERS' ANNEXURES :
ANNEXURE I COPY OF THE COUNTER AFFIDAVIT FILED BY THE CHIEF
SECRETARY TO GOVT. BEFORE THE HON'BLE SUPREME
COURT.
ANNEXURE II COPY OF ROYAL PROCLAMATION DATED 15TH MEDAM, 997
ME (HUZUR CENTRAL VERNACULAR RECORDS)
ANNEXURE III COPY OF RULES REGARDING THE SYSTEM OF CARDAMOM
LAND TAX ON THE CARDAMOM HILLS AND PERIYAR
RESERVES SANCTIONED BY HIS HIGHNESS THE MAHARAJA
ON 9TH KARKADAGOM 1075 ME, 23.7.1900.
ANNEXURE IV COPY OF RULES REGARDING THE ASSESSMENT ON
CARDAMOM GARDENS AND LAND GRANTED FOR WET
CULTIVATION WITHIN THE CARDAMOM HILLS AND PERIYAR
RESERVES SANCTIONED BY HIS HIGHNESS THE MAHARAJA
ON 12TH AUGUST 1905.
ANNEXURE V COPY OF PROCEEDINGS OF THE GOVERNMENT OF HIS
HIGHNESS THE MAHARAJA OF TRAVANCORE ORDER NUMBER
ROC NO. 7959/41/REV. DATED 19TH JUNE 1942.
ANNEXURE VI COPY OF NOTIFICATION NO. ROC 2439/44/DEVPT. OF HIGH
HIGHNESS THE MAHARAJA OF TRAVANCORE DATED
10.11.1944.
ANNEXURE VI COPY OF GO(MS) NO. 804/1958/REV. DATED 9.8.1958 OF
GOVERNMENT OF KERALA.
ANNEXURE VIII COPY OF RULES FOR LEASE OF GOVERNMENT LANDS FOR
CARDAMOM CULTIVATION NOTIFIED AS G.O.(PRESS) 21/REV.
DATED 8.1.1959.
ANNEXURE XI COPY OF THE TRAVANCORE GOVERNMENT GAZETTE NOTICE
PUBLISHED IN PAGE 1932 OF GAZETTE DATED 24.8.1897.
(Contd...)
WA.No. 1721 of 2009 ( )
ANNEXURE X COPY OF REPORT OF THE COMMITTEE CONSTITUTED AS PER
THE DIRECTION OF THE HON'BLE SUPREME COURT OF INDIA
IN PARA 5 OF THEIR JUDGMENT ON 12.12.1996IN WP(C)
NO. 202/95.
ANNEXURE XI COPY OF REPORT OF THE CENTRAL EMPOWERED
COMMITTEE FILED BEFORE THE HON'BLE SUPREME COURT
IN IA NO. 305/2002 REFER TO IN PARA 2 OF THE COUNTER
AFFIDAVIT.
RESPONDENT'S ANNEXURES :
ANNEXURE A : DATED 18-8-2007, TRUE COPY OF THE ORDER PASSED BY
THIS HON'BLE COURT IN IA NO. 9905 OF 2007 IN WP(C)
NO. 15416 OF 2007.
//TRUE COPY//
P.A. TO JUDGE
Mn
MANJULA CHELLUR, CJ
& A.M.SHAFFIQUE, J.
* * * * * * * * * * * * *
W.A.No.1721 of 2009 & W.A.No.1878 of 2009
----------------------------------------
Dated this the 25th day of July 2014
J U D G M E N T
SHAFFIQUE,J Appellants in W.A.No.1721/2009 are State of Kerala and its officers who were arrayed as respondents before the learned single Judge. First respondent herein was the writ petitioner.
2. Writ petition came to be filed seeking quashing of Ext.P1 dated 18/07/2007 issued by the District Collector, Idukki. Under Ext.P1, District Collector ordered taking over of 2.84 acres of land in Sy.Nos.84/1/1 and 84/1/2 of Pallivasal Village in Devikulam Taluk along with the constructions thereon by the Government. The relief sought in the writ petition was to restore possession of the aforesaid land to the writ petitioner.
WANos.1721 of 2009 &1878 of 2009 2
3. Writ petitioner, a partnership firm, substantiated their contention based on title contending that land was assigned to their predecessor-in-interest under Cardamom Rules (Travancore) of 1935 (hereinafter referred as '1935 Rules') and a patta was issued under the said Rules. According to the writ petitioner, action of Government in taking over the said land invoking the said provisions was not sustainable as the said Rules were no longer in force.
4. According to respondent State, patta said to have been issued under 1935 Rules was never produced, therefore, title of the petitioner was under a cloud and according to them, there was no assignment under 1935 Rules. They also contended that adjudication cannot be made so far as disputed questions of fact regarding title under a petition filed under Article 226 of the Constitution of India.
5. Learned single Judge opined that by WANos.1721 of 2009 &1878 of 2009 3 applying the doctrine of desuetude, Cardamom Rules of 1935 have become a "dead letter" and justice demanded that those Rules should not be invoked to deprive the petitioner of properties which has been in their possession. Learned Judge further held that conditions at Ext.P19 cannot be made applicable to the alleged grant in favour of Sri.Pylee Varghese and according to learned single Judge the very fact that mortgage deed executed by Sri.Pylee Varghese in favour of Government which was again released would indicate that title of Sri.Pylee Varghese on this property was accepted by the Government. Learned Single Judge also opined that suit filed by writ petitioner has nothing to do with the writ petition as the suit is only for injunction. Ultimately, learned Single Judge opined that Ext.P1 and all the actions pursuant thereto are totally illegal and unsustainable, hence proceeded to quash Ext.P1. Further, respondents were directed to restore the land to WANos.1721 of 2009 &1878 of 2009 4 the writ petitioner resumed as per Ext.P1. So far as damages for demolition of buildings and other actions of respondents therein, liberty was reserved for them to approach appropriate forum where they can adduce evidence to substantiate their claim and quantum.
6. The learned Single Judge opined that the person who passed Ext.P1 has misused his powers wantonly without being sure of his powers, that too, without hearing the petitioner and falsely stated that writ petitioner was not present for the hearing. Therefore, Rs.15,000/- was awarded as cost, to be recovered personally from the person who passed Ext.P1.
7. Aggrieved by the judgment of the learned single Judge, respondents have come up in W.A.No.1721/2009 and the Authority who passed Ext.P1, one Mr.Raju Narayana Swamy, the District Collector, Idukki, at the relevant time has come up in his personal capacity as appellant in WANos.1721 of 2009 &1878 of 2009 5 W.A.No.1878/2009.
8. So far as the appeal filed by the State, they contend that the learned Judge erred in scrutinising the title of the petitioner on the basis of the assumption that he is deciding the title of the parties like a civil suit. Learned Judge was not entitled to decide the title of the parties. On the other hand, writ petitioner ought to have been held as a rank trespasser. Initially, Ext.P3 sale deed was relied upon contending that the land transferred under the said document was a cardamom plantation. Tax receipts were produced at Ext.P4. Ext.P5 was the plaint in the original suit. The suit was for a bare injunction. In the plaint, nowhere petitioner has stated that there was any absolute assignment or grant of patta in favour of their predecessor- in-interest. The said suit is pending. Subsequently, Ext.P7 sale deed of 1978 was relied upon indicating that one Smt.Mariamma, wife of Sri.Pylee Varghese, assigning 2.45 WANos.1721 of 2009 &1878 of 2009 6 acres of land in Sy.No.179 to Mr.Kurian. In that document, Mariamma states how she acquired title to the property wherein assignment under Kuthakapattam was brought on record. Appellants contended that Ext.P8 is only an agreement between the Devikulam Divisional Commissioner and Sri.Pylee Varghese attracting Rule 10 of Cardamom Rules of 1935. It is very clear from this agreement that the person entering into the agreement has to pay certain amounts in instalments mentioned in the agreement without any default. Only after complete payment of amounts mentioned in the agreement Commissioner would pass the final order directing the Registry to issue Patta to the assignee. If amounts are not paid, the preliminary order of registry will be cancelled by the Commissioner. According to appellant State, there is nothing on record to show that as per Ext.P8 agreement amounts were paid and patta was issued crystallizing title WANos.1721 of 2009 &1878 of 2009 7 in favour of Sri.Pylee Varghese. Five instalments of 78 rupees 7 chakrams and 10 paise was to be paid on or before 15th day of the month Makaram 1118 corresponding to 1943. No material is forthcoming indicating payment of instalments either in lumpsum or in advance. The final order could have been issued only in the year 1943. The restrictions imposed under Ext.P19 order of proceedings of the Government by His Highness of Travancore would be applicable to patta that could have been issued to Sri.Pylee Varghese in 1943 which says there cannot be any alienation without the prior approval of Government. Ultimately, it has to lead to termination of registry.
9. Coming to the mortgage executed in favour of Government by Sri.Pylee Varghese, the same was for an agricultural loan. In this mortgage document at Ext.P16, Sri.Pylee Varghese described himself as the absolute owner of the property and same will not confer any title on WANos.1721 of 2009 &1878 of 2009 8 Sri.Pylee Varghese, if he did not have title to the property. Subsequently, as per Exhibit P9 mortgage was released in favour of Smt.Mariamma, wife of Sri.Pylee Varghese. In the very subsequent year Smt.Mariamma sold the property to Sri..Kurian wherein it was mentioned that property in question was assigned to her husband under Kuthakappattam. 1947 Rules of Kuthakapattam stipulates that said Rules are not applicable to the land given to cardamom or tea cultivation. 1947 Rules do not contemplate absolute assignment of land and issue of patta.
10. Ext.P10 notice came to be issued on 09/01/2007 to the petitioner intimating that constructions put up by him in the land is illegal and petitioner was directed to produce the documents under which he was claiming title to the property. It was made clear that if no proper explanation was furnished, land will be resumed without WANos.1721 of 2009 &1878 of 2009 9 any further notice. Reply was given as per Exhibit P11. None of the documents relied upon by the petitioner were produced or even mentioned in the reply dated 12.02.2007. So far as possession of property, explanation was offered as per Ext.P13. Even in the said explanation, documents at Exts.P7, P8, P9 and P16 are silent. The contentions raised now were never raised before the authorities concerned. In pursuance to Ext.P10, Ext.P1 order was passed by the Government and it cannot be invalidated based on mentioning of wrong provisions of law.
11. According to the appellants, writ petition should not have been heard by the learned single Judge on account of the pendency of W.A.No.2090/2004, wherein the validity of 1935 Rules was directed to be considered by the Apex Court. Though the writ petitioner contended that they are ready to withdraw the said contention and was prepared to accept the stand that 1935 Rules can still be WANos.1721 of 2009 &1878 of 2009 10 pressed into service, learned single Judge held that Cardamom Rules of 1935 have become a dead letter and justice demands those Rules cannot be invoked to deprive the petitioner of the property which has been in his possession. Learned Judge totally ignored the said position of law that on questions of law there is no estoppel.
12. Further it is contended that no opportunity was given either to the officer against whom criticisms were made by the learned Judge nor the Government to explain their stand. Learned Judge misdirected himself into an erroneous line of reasoning and proceeded to pass the above judgment, therefore, State has sought for setting aside the judgment of the learned single Judge and dismiss the writ petition.
13. So far as W.A.No.1878/2009, appellant was not arrayed as party respondent and no allegations were made against the appellant personally. At paragraph 14 of the WANos.1721 of 2009 &1878 of 2009 11 Judgment certain observations were made by the learned Judge against the appellant and those observations are made without affording any opportunity of being heard and without any pleading or allegations on behalf of writ petitioners. Similarly, finding of the learned single Judge at paragraph 35 of the judgment holding the appellant as responsible to pay costs of Rs.15,000/- is also an error. So far as absence of writ petitioner before District Collector, Idukki on 16.05.2007 also, there was no opportunity to explain. With these averments he sought for setting aside the judgment of the learned single Judge to the extent of holding that appellant was personally liable and saddling him with liability to pay costs of Rs.15,000/- and also to expunge all the observations made by the learned single Judge at paragraphs 14 and 35 of the judgment.
14. Learned Special Government Pleader, so far as question of law involved in the cases pertaining to 1935 WANos.1721 of 2009 &1878 of 2009 12 Rules and Kerala Government Land Assignment Act, 1960 (hereinafter referred as KLA Act) and Kerala Land Assignment Rules, 1964 (hereinafter referred as KLA Rules, 1964) contends that Exhibit P8 is only an agreement between Devikulam Divisional Commissioner and one Varghese. As there is nothing on record to show that Pylee Varghese has paid the amount and patta was issued in his name, mere agreement at Ext.P8 will not confer any title on any person. As a matter of fact, Ext.P8 was not produced before the District Collector which is an admitted fact and the said document being crucial one for determination of title, respondent writ petitioner alone knows why it was not produced before the District Collector. That apart, the said document was not produced before learned single Judge and later, it was produced after an amendment to the writ petition. In other words, The District Collector who passed Ext.P1 had no opportunity to look into the contents of WANos.1721 of 2009 &1878 of 2009 13 Ext.P8 and verify the same with relevant documents and to conclude what is the outcome of Ext.P8. In the absence of Ext.P7 sale document executed by Mariamma, wife of Pylee Varghese mentioning patta number and other details, there has to be an enquiry into the same. Contents of the agreement have to be analysed and whether stipulation No.2 of agreement has to be invoked or not has to be looked into. Therefore, according to learned Special Government Pleader, there was no justification for learned single Judge to consider the said matter and decide the same when authority concerned had to take a decision. In other words. Learned Special Government Pleader contends that unless title is passed on to the predecessors-in-interest of the writ petitioner, consideration of the matter based on 1935 Rules and subsequent enactments would not arise.
15. On the other hand, it is argued by Sri.K.Jayakumar, learned senior counsel appearing on WANos.1721 of 2009 &1878 of 2009 14 behalf of the 1st respondent that Ext.P1 order issued by the District Collector is in gross violation of the principles of natural justice, that 1935 Rules could not have been invoked as the same stands repealed as provided under section 9(3) of the KLA Act, even otherwise 1935 Rules is a dead letter applying the doctrine of desuetude, that the title of the petitioner's predecessor is absolute and cannot be interfered by the State or its authorities, that no statutory provision enables the District Collector to cancel any document of title or to resume possession of the land in their possession. The Counsel therefore supports the stand taken by the learned Single Judge.
16. Before proceeding to consider the legal issues involved in the matter, let us first consider the factual aspects involved in the matter. Ext.P10 notice dated 09/01/2007 was issued to the petitioner calling upon the Manager of petitioner firm to show cause why the WANos.1721 of 2009 &1878 of 2009 15 pattayam/lease granted in their favour should not be cancelled and the land resumed. The property involved was situated in Sy.Nos.84/1-2, 84/1-1 of Pallivasal village, Devikulam Taluk and having an extent of 1.17.60 (wrongly typed as L 17.60) hectares. It is stated in Ext.P10 that the said property was reserved for cardamom cultivation and it is illegal to utilise the same for any other purpose. It was also observed that a tourist resort by name Munnar Woods Resorts was functioning in the said property, which amounts to violation of Rules 36 and 37 of the 1935 (wrongly typed as 1936) Rules. That apart, it violates Rules 7, 11 and 24 of the Rules governing lease of Government land for cardamom cultivation and conditions 7, 11, 14, 16, 17 thereof. This, according to the District Collector, was in violation of the pattayam as well as lease conditions. Fifteen days time was granted for giving explanation. The petitioner submitted Ext.P11 explanation dated 12/02/2007 WANos.1721 of 2009 &1878 of 2009 16 stating that they got title over the property as per sale deed No.456/2007 dated 27/01/2003 of the Sub Registrar's Office, Kothamangalam. It is further stated that construction of the resort was made after getting necessary No Objection Certificate from the Grama Panchayath, building tax was also levied by the Tahsildar which was paid to the Village Officer, they obtained licence for functioning the lodging and restaurant, licence under the Food Adulteration Act, necessary consent from the Kerala State Pollution Control Board etc. It is further stated that when they acquired title it was described as a coffee plantation and they have converted the same as one of the best cardamom plantation in the locality. The resort was constructed without cutting down any of the trees. Buildings and foot paths were planned, designed and laid without affecting the trees and proper irrigation facilities have been provided to the plantation as well. WANos.1721 of 2009 &1878 of 2009 17
17. The petitioner was called for a hearing as per Ext.P12 notice dated 08/05/2007, to appear before the District Collector on 16/05/2007 at 2.30 pm. According to the petitioner, their representative appeared for hearing with Counsel at the given time, but the District Collector was not present. They waited till 5 p.m and were informed from the office that fresh notice will be issued. They were ready with Ext.P13 note and further documents to prove the title to the property. Though they were informed that further notice will be issued for a hearing, the District Collector issued order dated 18/05/2007 by way of Ext.P1, which was served on the petitioner on 19/05/2007 at around 6 p.m.
18. In Ext.P1, it is indicated about the information received with reference to construction of resorts in cardamom plantations in the District. Enquiry conducted through the Tahsildar revealed that seven WANos.1721 of 2009 &1878 of 2009 18 buildings were constructed in the property having an extent of 1.17.60 Hectares in Block No.14 of Survey Nos.84/1-2 and 84/1-1 of Pallivasal Village, in the name and style `Munnar Woods Resorts' and that the property is situated in 'pandaravaka' cardamom lands. The report also indicated that construction so made was illegal. Notice was issued calling upon the Manager to produce records who produced sale deed No.458 of 2003 of SRO Devikulam. The report revealed that trees were cut and seven buildings constructed. No other documents were produced, and not even tax receipts. Though the matter was posted for hearing on 16/05/2007 at 2.30 p.m, none appeared. Hence it was found that the land was part of 'Pandaravaka' cardamom plantation and construction of the resort by the land owners was against the rules of cardamom cultivation. Reference is made to Rule 14 of Rules for Lease of Government Lands for Cardamom Cultivation, 1961 WANos.1721 of 2009 &1878 of 2009 19 (hereinafter referred as Cardamom Rules, 1961) which restricts the right to assign cardamom lease lands and it is found that no such permission was obtained from the District Collector while effecting the transfer in 2003. Hence direction was issued to the Tahsildar to resume the land from the petitioner. The buildings and structures were demolished on 21/05/2007 early morning and the land was resumed.
19. Ext.P1 substantially refers to three violations.
(i) The property is part of 'pandaravaka' cardamom plantation and therefore no other activity is permissible.
(ii) Construction of buildings and running the resort is against the rules and regulations relating to grant of land for cardamom cultivation; and
(iii) Land was transferred to the present owners in violation of Rule 14 of Cardamom Rules, 1961, without permission from the District Collector.
WANos.1721 of 2009 &1878 of 2009 20
20. In the counter affidavit, the impugned order is defended by raising the following contentions;
(i) Writ petition is not maintainable as a civil suit is already filed and pending.
(ii) Title disputes cannot be decided in a writ petition. That apart, Ext.P8 does not prove title as it is only an agreement and no materials are available to prove that the agreement holder has paid the amount in terms with the agreement and patta was issued.
(iii) No documents were produced before the District Collector to prove title and he had no occasion to verify the documents produced before this Court.
(iv) Petitioner is a rank trespasser who has no title.
(v) Petitioner did not appear for hearing, on 16/05/2007. Principles of natural justice has been complied.
WANos.1721 of 2009 &1878 of 2009 21
(vi) Petitioner committed wanton destruction of cardamom and trees in violation of Rule 28 of 1935 Rules.
(vii) Land forms part of forest and Forest Conservation Act, 1980 applies. No non forestry activity could be done except with permission of Central Government.
21. Heard Smt.Susheela R. Bhatt, learned special Government Pleader appearing on behalf of the Appellants in W.A.No.1721/2009, Sri. Devan Ramachandran, learned counsel appearing on behalf of the appellant in W.A.No.1878/2009 and Sri.K.Jayakumar, learned Senior counsel appearing on behalf of the writ petitioner/1st respondent.
22. As far as the maintainability of the writ petition is concerned, we do not think that filing a suit for injunction will preclude the right of the petitioner to challenge Ext.P1 order which is based on a separate cause WANos.1721 of 2009 &1878 of 2009 22 of action.
23. The learned Special Government pleader has raised a specific contention that there was no justification on the part of the learned Single Judge to have considered the question of title especially when such questions involved consideration of disputed facts which can only be resolved in a Civil suit. That apart, none of the documents relied upon by the petitioner were produced before the District Collector who had no occasion to verify the same. It is true that dispute on title are not matters which could be adjudicated by this Court under Article 226 of the Constitution of India. But this is an instance in which the land in the possession of the petitioner had been resumed by the Government on the ground that it is 'pandaravaka' cardamom land. Pandaravaka means belonging to Government. Constitution Bench in Kannan Devan Hills Produce Co. Ltd. v. State of Kerala [1972 KLT 377 (SC)] WANos.1721 of 2009 &1878 of 2009 23 had occasion to consider as to what becomes a registered holding. It is observed as under:
"In the Travancore Land Revenue Manual, Vol. III, Revised Edition, 1936, registered lands are described as follows:
"Registered lands are lands registered in the revenue accounts as held by or granted to individuals, families, corporations or institutions, and comprise all the different kinds of tenures bearing either the full assessment or wholly or partially free of assessment. These lands comprise not only the areas brought under cadastral survey but include also coffee, tea, rubber and other estates, cardamom gardens and other special grants outside the limits of cadastral survey."
The Registered Lands include, inter alia, (a) Pandaravaka lands and (b) Janmam lands.
Regarding Pandaravaka lands it is stated:
"Pandaravaka or Sircar lands are lands of which the State is the landlord or the Janmi and whatever rights which vest in the ryots are WANos.1721 of 2009 &1878 of 2009 24 derived from the Sircar."
When the District Collector forms such an opinion that the land belongs to the Government ignoring the sale deed produced by the petitioner and thereafter passing an order of resumption, which is enforced, necessarily the learned Single Judge is justified in considering the title of the petitioner and their predecessors-in-interest. That apart, in Ext.P1, the District Collector proceeded on the basis that land was not assignable as per Rule 14 of the Cardamom Rules, 1961, indicating thereby that the petitioner was holding cardamom land under lease, which again is a reason for ascertaining the right and interest, the petitioner claimed in the property. Of course, the opinion expressed by the learned Single Judge can be treated as an opinion with the available materials and if the Government is of the view that the petitioner does not have title to the property on account of any other circumstances and the Government WANos.1721 of 2009 &1878 of 2009 25 has a better right, it will be open for the Government to establish the same in appropriate proceedings. Hence we are of the view that there is no illegality on the part of the learned single Judge to have verified the title of the petitioner.
24. According to the petitioner, they have valid title to the property by virtue of successive assignments. The original grantee obtained property under the 1935 Rules. It was an assignment on registry. There was no prohibition under the 1935 Rules for alienation of cardamom reserve lands. Petitioner has also produced sufficient materials especially Ext.P8 to indicate that the petitioner's predecessor-in-interest had entered into an agreement with the Government in terms of Rule 10 of 1935 Rules, which reads as under:
10. When the preliminary order of registry in favour of the applicant is passed by the Commissioner, Devicolam, or when orders passed WANos.1721 of 2009 &1878 of 2009 26 by the higher authorities are received by him, he shall issue a notice to the applicant directing him to pay the first instalment or 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."WANos.1721 of 2009 &1878 of 2009 27
25. It is argued on behalf of the appellants that there is no material produced to prove that balance amounts were paid and patta issued. Reliance is placed on the judgment in State of Kerala v. The Nellithanam Rubber & Produce Co.Ltd [1966 KLJ 826]. The rule itself provides that when all the instalments are paid, the Commissioner has to pass the final order of registry directing the Tahsildar to issue a patta to the assignee. If the amount is not paid, the Commissioner could 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. English translation of the terms and conditions in Ext.P8, produced along with the writ appeal reads as under:
1) That the purchaser shall pay, as per the Challan signed as above, the sum of Rs.78.7.10 (Rupees seventy-eight, Chakrams seven and kassu ten) at the rate of British WANos.1721 of 2009 &1878 of 2009 28 Rupees ten per acre, towards each of the five instalments due from him; on or before the 15th day of Makaram each year, at the Devicolam Treasury, without fail;
2) That until the remittance of the entire amount due by way of the instalments as aforesaid, the ownership of the land hereby transferred to the Purchaser under this Agreement, shall continue to be vested in the Government; and the Purchaser shall have no manner of right to transfer or alienate the land to anyone.
3) That in the event of the Purchaser committing default in paying any one or all the instalments due by him as above, the Purchaser shall be liable to pay the remaining or entire instalments due from him in a lump sum within the time stipulated by the notice intimating him in this behalf and if he does not pay the said amounts within the time specified in the notice issued to him in this behalf, in writing, the Commissioner of Devicolam Division shall be at liberty to rescind the assignment of land to the WANos.1721 of 2009 &1878 of 2009 29 Purchaser; or get the assignment of land made rescinded by the appropriate authorities; and the amount or amounts remitted by him till then shall be forfeited to the Government or arrange to get the amounts forfeited to the Government by the appropriate authorities and also direct recovery of all the remaining number of instalments due to the Government from the Purchaser under the Revenue Recovery Regulations in force at that time or recover the said amounts under the said provisions.
4) That in the event of the assignment of the land to the Purchaser having been revoked as per the last clause mentioned above, the Purchaser shall have no manner or right or interest over the improvements, if any effected by him on the land assigned to him under this agreement.
5) That in the event of the Government requiring any time hereafter any portion of the land hereby assigned which is more particularly described in the schedule herein be low, for constructing any road or pathway over it, the WANos.1721 of 2009 &1878 of 2009 30 Purchaser shall be liable to part with that portion of the land to the Government without any demur; without claiming any compensation or amounts for the improvements effected by him in the land, but he will be entitled to get proportionate amount of ground rent in respect of the portion of land surrendered by him to the Government for the above purpose; to which the purchaser has agreed."
There is no case for the appellants that they have invoked clause (3) of the conditions aforementioned at any point of time. Under such circumstances, it has to be assumed that the assignee had complied with the terms of Ext.P8 agreement. Thereafter mortgage deed was also executed with the Government as per Ext.P16 in the year 1963 and the said mortgage was released as per Ext.P9 in 1977. The petitioner was also paying tax after affecting mutation as evident from Ext.P4 series documents and P15 Basic Tax Register. Of course, the District Collector had no occasion WANos.1721 of 2009 &1878 of 2009 31 to verify the said documents and form an opinion by himself, nor any attempt is made to verify such particulars available in village records.
26. The law in this regard is well settled. When land in possession of a person is resumed or taken possession by the Government or any other person, it can be done only by observing due process of law. Article 300A of the Constitution of India reads as under:
"Art.300A. No person shall be deprived of his property save by authority of law."
When the District Collector, an officer of the Government invokes his power for resumption of land in the possession of a citizen, necessarily he can act only within the powers available to him under a particular statute. In the absence of any statutory provision enabling the District Collector to cancel a patta or lease deed, as the case may be, even if such power is exercised, the same would be invalid in the WANos.1721 of 2009 &1878 of 2009 32 eye of law. The Constitution Bench in Bishan Das and others v. State of Punjab and others (AIR 1961 SC 1570) held as under:
"14. Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law. The facts and the position in law thus clearly are (1) that the buildings constructed on this piece of Government land did not belong to Government, (2) that the petitioners were in possession and occupation of the buildings and (3) that by virtue of enactments binding on the Government, the petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated. In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property. As pointed out by this Court in Wazir Chand v. State of Himachal Pradesh, the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. In Ram Prasad Narayan Sahi v. State of Bihar this WANos.1721 of 2009 &1878 of 2009 33 Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others. We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority."
In Bishamber Dayal Chandra Mohan v. State of U.P. [(1982) 1 SCC 39] the Supreme Court, held that Article 300A provides that no person shall be deprived of his property save by authority of law and the State Government cannot take recourse to the executive power of the State under Article 162 to deprive a person of his property. It is further held that such power can be exercised only by authority of law and not by a mere executive fiat or order. It is further held that "The word "law" in the context of Article 300-A must mean an Act of Parliament or of a State legislature, a rule, or a statutory order, having the force of law, that is positive or State made law." In Indore Vikas Pradhikaran v. Pure Industrial Coke & WANos.1721 of 2009 &1878 of 2009 34 Chemicals Ltd., [(2007) 8 SCC 705] Supreme Court held as under:
"53. The right to property is now considered to be not only a constitutional right but also a human right.
54. The Declaration of Human and Civic Rights of 26-8-1789 enunciates under Article 17:
"17. Since the right to property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid".
Further under Article 17 of the Universal Declaration of Human Rights, 1948 dated 10-12- 1948, adopted in the United Nations General Assembly Resolution it is stated that: (i) Everyone has the right to own property alone as well as in association with others. (ii) No one shall be arbitrarily deprived of his property.
55. Earlier human rights were existed to the claim of individuals right to health, right to livelihood, right to shelter and employment, etc. but now human rights have started gaining a multifaceted approach. Now property rights are also incorporated within the definition of human rights. Even claim of adverse possession has to be read in consonance with human rights. As President John Adams (1797-1801) put it:
"Property is surely a right of mankind as real as liberty."
Adding, WANos.1721 of 2009 &1878 of 2009 35 "The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence."
56. Property, while ceasing to be a fundamental right would, however, be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law."
27. Having regard to the law laid down by the Supreme Court, the question to be considered is whether the District Collector has passed Ext.P1 order, with reference to any statutory provision. For that purpose, it has to be first considered whether the 1935 Rules still survives despite enactment of the KLA Act, 1960 and the Rules framed thereunder.
28. The learned special Government Pleader relied upon Section 6 of the General Clauses Act which inter alia indicates that even if a Central Act is repealed, it shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. WANos.1721 of 2009 &1878 of 2009 36 Reference is made to the judgment of the Supreme Court in Indian Tobacco company v. Commercial Officer [(1975) 3 SCC 512] especially paragraphs 15 to 17 which reads as under:
"15. The general rule of construction is that the repeal of a repealing Act does not revive anything repealed thereby. But the operation of this rule is not absolute. It is subject to the appearance of a "different intention" in the repealing statute.
Again such intention may be explicit or
implicit. ...........
16. It is now well-settled that "repeal" connotes abrogation or obliteration of one statute by another, from the statute book as completely "as if it had never been passed"; when an Act is repealed, "it must be considered (except as to transactions past and closed) as if it had never existed". (Per Tindal, C.J., in Kay v. Goodwin and Lord Tenterdon in Surtees v. Ellison cited with approval in State of Orissa v. M.A. Tulloch & Co.).
17. Repeal is not a matter of mere form but one of substance, depending upon the intention of the legislature. If the intention indicated expressly or by necessary implication in the subsequent statute was to abrogate or wipe off the former enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by super-adding conditions, or by WANos.1721 of 2009 &1878 of 2009 37 restricting, intercepting or suspending its operation, such modification would not amount to a repeal -- (see Craies on Statute Law, 7th Edn. pp. 349, 353, 373, 374 and 375; Maxwell's Interpretation of Statutes, 11th Edn. pp. 164, 390 based on Mount v. Taylor; Southerland's Statutory Construction 3rd Edn. Vol. I, para 2014 and 2022, pp. 468 and 490). Broadly speaking, the principal object of a repealing and amending Act is to "excise dead matter, prune off superfluities and reject clearly inconsistent enactments" -- see Mohinder Singh v. Harbhajan Kaur."
Another judgment relied upon is M/s Gammon India Ltd. v. Special Chief Secretary [(2006) 3 SCC 354]. Reference is made to paragraph 73 which reads as under:
"73. On critical analysis and scrutiny of all relevant cases and opinions of learned authors, the conclusion becomes inescapable that whenever there is a repeal of an enactment and simultaneous re-enactment, the re-enactment is to be considered as reaffirmation of the old law and provisions of the repealed Act which are thus re-enacted continue in force uninterruptedly unless the re-enacted enactment manifests an intention incompatible with or contrary to the provisions of the repealed Act. Such incompatibility will have to be ascertained from a consideration of the relevant provisions of the re- enacted enactment and the mere absence of the saving clause is, by itself, not material for WANos.1721 of 2009 &1878 of 2009 38 consideration of all the relevant provisions of the new enactment. In other words, a clear legislative intention of the re-enacted enactment has to be inferred and gathered whether it intended to preserve all the rights and liabilities of a repealed statute intact or modify or to obliterate them altogether."
It is therefore argued that in order to assume that the 1935 Rules were repealed, a legislative intention must exist failing which it has to be inferred that all the rights and liabilities of the repealed statute remains intact.
29. On the other hand, learned senior counsel appearing for the petitioner relies upon the judgment of the Supreme Court in Rayala Corporation (P)Ltd. v. The Director of Enforcement, New Delhi [AIR 1970 SC 494] and Kolhapur Canesugar Works Ltd. v. Union of India [AIR 2000 SC 811]. In Rayala Corporation (supra) the Constitution Bench held that when the amendment to the rule indicates affording protection only for action already taken while the rule was in force, there is no justification in WANos.1721 of 2009 &1878 of 2009 39 initiating new proceedings when the rule had ceased to exist. In Kolhapur Canesugar Works (supra), another Constitution Bench held that when Section 6 of the General Clauses Act applies to repeal of Central Act and Regulation, it is not possible to apply the said provision to a case of repeal of a rule.
30. Section 4 of the Kerala Interpretation of General Clauses Act corresponds to section 6 of the General Clauses Act, 1897. The said provision cannot have any application when the question relates repeal of Rule and not an Act or Regulation.
31. In a slightly different set of facts, we had occasion to consider whether 1935 Rules has been repealed or not in Vincy Cherian v. State of Kerala [2014(1) KLT 372]. It is held by us that Government Land Assignment Regulations III of 1097 (ME) under which 1935 Rules were framed was repealed by virtue of Section 9 the Travancore-Cochin WANos.1721 of 2009 &1878 of 2009 40 Government Land Assignment Act, 1950. After repeal of 1097 Regulations, the 1935 Rules were deemed to have been made under the 1950 Act. By virtue of Section 9(3) of the KLA Act, 1960, all Rules made or deemed to have been made under the 1950 Act stood repealed. Therefore 1935 Rules stood repealed by virtue of Section 9(3) of the KLA Act. Viewed in the light of the law laid down by the Supreme Court in the aforementioned cases, we are fortified with our view that 1935 Rules has been repealed. Even otherwise no such power is vested with the District Collector under the 1935 Rules. Since we have come to the conclusion that 1935 Rules have been repealed, we need not consider whether the 1935 Rules cannot be enforced by applying the 'Doctrine of Desuetude', which contention is left open to be decided in appropriate proceedings.
32. The next question would be whether there is any other statutory provision which enables the District WANos.1721 of 2009 &1878 of 2009 41 Collector to pass an order of resumption. In Ext.P1, reference is made to violation of Rule 14 of the KLA Rules, 1961, which reads as under:
"The lessee shall not, on his own account, determine the lease during the currency of the lease. No lease hold or part thereof, shall be alienated without the prior sanction of the District Collector and in every case in which alienation is sanctioned, the party shall be charged with a fee calculated at the rate of Rs.5/- per Hector."
This provision applies only if land was given on lease. There is no material to indicate that the property in question was given on lease by the Government. If any lease deed was available with the Government, they could as well have produced the same. In the absence of any such document, under what circumstances, the District Collector had formed such an opinion, is not known.
33. The District Collector, therefore could not have invoked the provisions of 1935 Rules or the KLA Rules, WANos.1721 of 2009 &1878 of 2009 42 1961. Perusal of Ext.P10 and P1 tends us to observe and as rightly held by the learned Single Judge, the District Collector was not sure about the provision of law to be made applicable. First of all, the District Collector ought to have satisfied himself about the law under which petitioners' possession in the property should be disturbed. That apart, the District Collector was totally unaware of the right of the petitioner in the land in question.
34. It is not in dispute that the petitioners have acquired the land as per Ext.P3 sale deed dated 27/01/2003. Before the District Collector, the petitioners claimed title based on the said document. Reference to the said document would show as to how the assignors of the property acquired title. They have referred to sale deed Nos.1320/1994 and 1321/1994 as prior title deeds. Therefore it was not difficult for the District Collector to have verified the prior documents of the petitioners and WANos.1721 of 2009 &1878 of 2009 43 their predecessors to ascertain whether the said property was either a patta land or a lease land. Apparently, this is an instance where the property has been mutated in the name of the petitioners and they have been paying tax. These particulars could have been verified by the District Collector. From Ext.P10, it is evident that District Collector was not sure about the question as to whether the property involved is patta land or a lease land. Still further, they referred to Rules 36 and 37 of the 1935 Rules which has no application at all and not referred elsewhere. It is stated that condition No.4 has not been complied with, which applies only to concessional grant. Still further, it is indicated that there is violation of other provisions of the Cardamom Rules, 1961 as well, which is not substantiated. In other words, other than taking a common stand that buildings were constructed in land intended for cardamom cultivation, there is no common ground for resumption in WANos.1721 of 2009 &1878 of 2009 44 Ext.P10 show cause notice and Ext.P1 order. Still worse is the counter affidavit, wherein an attempt is made to allege other violations as well and taking a stand that the area involved is forest and Conservation of Forest Act,1980 applies.
35. It is argued by the learned special Government Pleader that even assuming that 1935 rules is no longer in force, by virtue of Section 8 of the KLA Act, all provision in the contract shall take effect, according to their tenure. Reference is also made to the judgment of the Supreme Court in State of Kerala v. M.T.Joseph (dead) by Lrs' [AIR 1977 SC 625]. Section 8 of KLA Act reads as under:
8. Assignment to take effect with restrictions, conditions etc. according to their tenor.- All the provisions, restrictions, conditions and limitations contained in any Pattah or other document evidencing the assignment of Government land or of any interest therein shall be valid and take effect WANos.1721 of 2009 &1878 of 2009 45 according to their tenor, notwithstanding any law for the time being in force or any custom or contract to the contrary.
Explanation.- In this section, the expression "Government land" shall include land under the control or management of the Government at the time of the assignment."
It is further argued that as far as the cardamom hill reserve is concerned, any person in possession claiming right either under a patta, agreement or by way of lease, cannot do anything else in the property but can only use the same for cultivation of cardamom. It is contended that assuming that the 1935 Rules stands repealed, the rules thereof forms part of the contract even in case of assignment on registry and in terms of Rules 28, 29 and 31 of the 1935 Rules, it is mandatory for the assignees of cardamom lands to preserve the land as such and violation would invite severe punishment including resumption of land. Rules 28, 29 and 31 reads as under:
WANos.1721 of 2009 &1878 of 2009 46
"28. Holders 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 height 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 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."WANos.1721 of 2009 &1878 of 2009 47
29. Holders of cardamom lands may utilise trees left for shade for growing pepper, vanilla and rubber vines and with the sanction of the Commissioner, Devicolam, may grow such other crops which, in the opinion of the Commissioner, Devicolam, will not interfere with the cultivation of cardamoms.
31. Holders may collect dead trees, including those other than royal or reserved trees uprooted by storms, as fuel, free of charge but no tree shall be purposely uprooted for including it among dead trees and thereby using it for fuel. With the permission of the Division Forest Officer concerned, any holder may fell trees, except royal or reserved trees, growing on his own holdings for the construction of buildings necessary for the cultivation of such holdings provided that such felling does not interfere with the trees left for shade. The trees so felled may be removed to adjacent Thavalams under a free pass from the Forest Department. Should any holder wish to remove timber of the reserved species from his holding, he shall pay the seigniorage due to Government according to the Forest Rules in force. The Cardamom ryots are also allowed to collect from the Cardamom Hills thatching grass free of charge for their use in the holdings. Rule 28, authorize resumption of land by Government if wanton destruction of tree growth is established. Such a power, at any rate, cannot be invoked by the District WANos.1721 of 2009 &1878 of 2009 48 Collector.
36. Assuming that these Rules form part of the contract which is enforceable, as a party to a contract, the authorities will not get any right to invoke such provisions on account of repeal of 1935 Rules. Their powers were regulated by the Rules which stand repealed. Of course, as contended on behalf of the appellants, it could be said that the grantees are bound by the covenants under which land is assigned on registry or in any other form of grant. Still, when the Rule is repealed, the Authorities specified thereunder cannot take action based on the said rules. The covenants could be enforced only in a properly instituted suit or by an appropriate law in force or a law to be passed by the legislature.
37. Therefore, as matters stand now, there is no statutory provision which enables the District Collector to take over land given for cardamom cultivation alleging WANos.1721 of 2009 &1878 of 2009 49 violation of the conditions of the grant. In the absence of any statutory provision, which enables the District Collector to resume such land, Government can only seek for enforcement of the contract between the parties, which apparently will depend on the terms of the grant.
38. The Rules, in fact, provide for certain conditions which have to be complied by the parties. The conditions reads as under:
"1. The full right over all royal and reserved trees within the grant vests in the Government and the assignee is bound to take care of the royal trees standing on the land at the time of assignment.
2. The assignee is bound to afford all facilities to officers of Government in the matter of inspecting the land periodically for checking the royal reserved trees and removing them.
3. All established rights of way and other easement rights shall be respected by the assignee.WANos.1721 of 2009 &1878 of 2009 50
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.
5. The assessment of the land will be liable to alteration at any general revision of the Land Revenue Settlement.
6. The balance of tharavila and all amount due to Government by way of damages under the Rules are recoverable under the provisions of the Revenue Recovery Regulation."
Condition No.4, applies only to concessional grants which has no application to the facts of this case. At any rate, the District Collector observed that buildings were constructed in land set apart for cardamom cultivation. In Ext.P1, the District Collector has formed an opinion that the petitioner has cut and removed trees from the property which is described as cardamom reserve. What is the basis of such a finding is not borne out by records. How many trees were WANos.1721 of 2009 &1878 of 2009 51 cut and removed and when did they do it, have any such timber been seized, whether any proceedings were taken in the matter, are all issues which are still at dark. It is therefore clear that proper materials relevant to the issue have not been verified, proper hearing was not conducted in the matter and a hasty decision has been taken without even trying to understand the manner in which the petitioner and their predecessor-in-interest came to be in possession of the land.
39. Merely for the reason that the property is cardamom reserve, an assignment of land in the form of a patta or lease can be cancelled only if there is violation of the conditions of the grant. True that when a land is given for cultivating cardamom, the land owner is not expected to change the manner of cultivation without permission. But, in order to resume such land and to cancel the grant, the authorities should rely upon specific provision of law or WANos.1721 of 2009 &1878 of 2009 52 contract which enables them to cancel the grant. Before considering the question as to whether there is violation of the conditions of the grant, the said conditions have to be looked into and it has to be ascertained as to whether the original assignee or his successors-in-interest are bound to comply with the conditions of the grant. Still further, it is evident that the petitioner has constructed buildings with permission from the local authority and the buildings were assessed to tax by the revenue authority. Over a period of time, none of the authorities cared to take action for violation of the conditions of grant either as an assignee or a lease holder, as the case may be. Suddenly they woke up from their slumber, passed some order without even taking into consideration the valuable constitutional, legal and human right, took possession and immediately demolished the structures. In such circumstances, as held by the Constitution Bench in Bishan Das (supra) the action of the WANos.1721 of 2009 &1878 of 2009 53 Government in taking the law into their hands and dispossessing the petitioners by the display of force, amounts to callous disregard of the normal requirements of the rule of law which is not legitimately and reasonably expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property. Therefore, we have no hesitation to hold that Ext.P1 and further proceedings pursuant to it are highly discriminatory and autocratic which has deprived a person of the possession of property without reference to any lawful authority.
40. The learned counsel for petitioner points out that apart from the fact that there was absolute lack of jurisdiction, Ext.P1 order was passed in violation of principles of natural justice. Ext.P2 is the affidavit of Adv.Dipu Chandran, who stated that he was personally WANos.1721 of 2009 &1878 of 2009 54 present on 16/05/2007 at 2.30 p.m with a note and certain documents to establish the petitioner's title to the land in question. In the counter affidavit filed, this aspect of the matter has been denied. The counter affidavit is sworn by Sri.Ashok Kumar Singh, who was the District Collector, Idukki at the time when the affidavit is sworn. Based on the records available, he has stated that the said contention was incorrect. They have denied that the petitioner and the Counsel were present on 16/05/2007. The contents of Ext.P2 affidavit is also denied. But it is relevant to note that no affidavit is filed by the District Collector who had passed Ext.P1 order.
41. This is an instance where a show cause notice was issued on 09/01/2007 which was replied on 12/02/2007. Apparently, it required a hearing as well. It was posted for hearing on 16/05/2007 at 2.30 p.m. and the District Collector's order indicates that none appeared for WANos.1721 of 2009 &1878 of 2009 55 hearing. The order is passed on 18/05/2007 which is served on the petitioner on 19/05/2007 and according to the petitioner, at 6.00 p.m. Ext.P2 affidavit is sworn by the Advocate on 20/05/2007. First of all, it is difficult to believe that in an enquiry of like nature, one would keep away from appearance. Even assuming that the petitioner or his Counsel did not appear on 16/05/2007, still, taking into consideration the substantial proprietary rights involved in the matter, especially depriving a person of his right to property, nothing prevented the District Collector to give the petitioner a further opportunity for hearing. Whereas, pursuant to the directions issued at Ext.P1, the building in question was demolished on 21/05/2007.
42. In Uma Nath Pandey and Ors. v. State of U.P. and Another [2009 (2) KLT Suppl. 474 (SC)] the Supreme Court, while considering a long line of judgments held that:
WANos.1721 of 2009 &1878 of 2009 56
"Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form."
"These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play."
"Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of WANos.1721 of 2009 &1878 of 2009 57 miscarriage of justice."
It is clear from the factual circumstances, as narrated above, that the time given for hearing was not adequate to make a proper representation and reasonable opportunity was not given to make further representation. The decision so taken is in gross violation of the principles of natural justice and for that reason itself, the order passed becomes wholly vitiated and is liable to be set aside.
43. As far as W.A.No.1878 of 2009 is concerned, the short question to be considered is whether there was justification on the part of the learned Single Judge in imposing cost of Rs.15,000/- on the District Collector who had passed Ext.P1 order. It is found that the person who has passed Ext.P1 order has misused his powers wantonly without being sure of the provisions under which he has to pass such an order. The impact of Ext.P1 order is apparently drastic. Ext.P1 order was passed on WANos.1721 of 2009 &1878 of 2009 58 18/05/2007. According to the petitioner, it is served on 19/05/2007 at around 6 p.m. Next day, that is 20/5/2007 was Sunday. Courts were on vacation and the Vacation court had take up the matter on 23/05/2007. All the buildings were demolished on 21/05/2007. In fact, the petitioner had filed a suit for injunction before the District Court, Thodupuzha (Vacation Court) on 16/05/2007. Court ordered notice on the injunction application and allowed the Commission application. The case was posted for objection on 31/05/2007. On 17/05/2007, the Advocate Commissioner visited the property and the Devikulam Tahsildar submitted a work memo to the Advocate Commissioner. The Government pleader accepted notice on behalf of the District Collector. Therefore, it is after knowing about the pendency of the suit for injunction which was posted for hearing on 31/05/2007, that Ext.P1 order was enforced and the buildings were demolished on 21/05/2007. WANos.1721 of 2009 &1878 of 2009 59 This, according to the learned Single Judge, was a high handed action, which cannot be accepted.
44. Sri.Devan Ramachandran appearing on behalf of the appellant argued that the appellant was not a party to the proceedings. In the writ petition, though the District Collector, Idukki was a party, since he had already vacated the office, he was not heard in the matter and therefore the imposition of penalty on him is not justifiable.
45. Though we fully agree with the learned Single Judge that the actions of the respondents were without properly evaluating the factual circumstances involved in the matter and was done with undue haste, we are of the view that since the District Collector, Idukki was not personally made a party to the proceedings, there was no justification to impose penalty on him personally. To that extent, we interfere with the judgment of the learned Single Judge. However, the quantification of cost is perfectly WANos.1721 of 2009 &1878 of 2009 60 justified which has to be paid by the 1st appellant, State.
In the result, these Writ Appeals are disposed of as under:
The judgment of the learned Single Judge is modified only to the limited extent of setting aside the cost imposed on the appellant in W.A.No.1878 of 2009. The cost has to be paid by the 1st appellant. In all other respects, the judgment of the learned Single Judge is confirmed.
However, it is made clear that the disposal of these appeals does not preclude the Government from taking appropriate action in accordance with law and in compliance with the observations made above.
(MANJULA CHELLUR, CHIEF JUSTICE) (A.M.SHAFFIQUE, JUDGE) jsr WANos.1721 of 2009 &1878 of 2009 61