IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 AR.No. 27 of 2011() ------------------- APPLICANTS : ----------------- 1. K.A.PAPPACHAN, KARINGEN HOUSE, P.O.NADUVATTOM KARA, KALADY VILLAGE, ALUVA TALUK, ERNAKULAM-683 574. 2. SILVEENA PAPPACHAN, KARINGEN HOUSE, P.O.NADUVATTOM KARA, KALADY VILLAGE, ALUVA TALUK, ERNAKULAM-683 574. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): --------------- 1. THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT, KAKKANAD, KOCHI-682 030. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. GOVERNMENT PLEADER SRI.BIJU ABRAHAM FOR R1 & R2 THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AR 27/2011 APPENDIX APPLICANTS' DOCUMENTS : ANNEXURE 1: A COPY OF THE FORM OF PATTA 99/70 DATED 25.5.1970. ANNEXURE 2: COPY OF THE FORM OF THE ORDER OF ASSIGNMENT OF LAND ON REGISTRY FOR RUBBER CULTIVATION. ANNEXURE 3: COPY OF THE ASSIGNMENT DEED NO.2280/I/09 DATED 30.11.2009 EXECUTED IN FAVOUR OF THE APPLICANTS. ANNEXURE 4: COPY OF THE PROCEEDING DATED 24.5.2010 OF THE FIRST RESPONDENT. ANNEXURE 5: COPY OF THE JUDGMENT DATED 7.4.2010 IN W.P.(C) NO.10589/2010 OF THIS HON'BLE COURT. ANNEXURE 6: COPY OF THE JUDGMENT DATED 1.12.2010 IN W.A.NO.11614/2010 OF THIS HON'BLE COURT. ANNEXURE 7: COPY OF THE LETTER DATED 18.2.2011 SUBMITTED BY THE APPLICANT. ANNEXURE 8: COPY OF THE ORDER DATED 16.11.2010 OF THE FIRST RESPONDENT WITH RESPECT TO T.P.SABU. ANNEXURE 9: COPY OF THE ORDER DATED 16.11.2010 OF THE FIRST RESPONDENT WITH RESPECT TO JOMON JOSEPH. ANNEXURE 10: COPY OF THE ORDER DATED 23.12.2010 ISSUED BY THE GEOLOGIST. ANNEXURE 11: COPY OF THE INTERIM ORDER DATED 10.12.2010 IN I.A.NO.6241/2010 IN ARB. O.P.NO.1241/2010 ON THE FILE OF THE DISTRICT COURT, ERNAKULAM. RESPONDENTS' DOCUMENTS : NIL //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. --------------------------- A.R.No.27 of 2011 --------------------------- Dated this the 23rd day of August, 2011 O R D E R The applicants state that they are owners in possession of an extent of 6 Acres and 31.389 cents of land in R.S.No.48, 49 and 53/1 of Malayattoor Village. It is stated that the land along with other items were assigned to one Narayanan. By change of hands, the property came to vest in N.K.Shaji and Elsy, the predecessors in interest of the applicants herein. The land was licensed for rubber cultivation as per Annexure 1 patta dated 25.5.1970. The order of assignment is Annexure 2. 2. It is stated that the applicants purchased the property as per Annexure 3 assignment deed dated 30.11.2009. According to the applicants, N.K.Shaji was conducting quarrying operations in a portion of the property after obtaining necessary permission, licenses and consent from the statutory authorities. The applicants were also conducting quarrying operation in a portion of the property. As AR 27/2011 2 per Annexure 4 proceedings dated 24.5.2010, the District Collector cancelled the patta in respect of the land in R.S.No.48 and 49. The applicants filed Writ Petition No.31492 of 2010 challenging the cancellation of patta. It is stated that the Writ Petition is pending. 3. The prayer in the Arbitration Request is to appoint an arbitrator to settle the disputes and differences arising between the applicants and the first respondent (District Collector, Ernakulam) under the Arbitration and Conciliation Act, 1996. 4. Clause 14 of Annexure 2 order of assignment contains the following arbitration clause. “14. If any dispute or difference arises between the Government or their Officers on the one part and the grantee or his/her successors in interest on the other part as the rights, duties, or liabilities of either party in respect of any matter or thing relating to or arising out of the grant or the construction or the meaning of all or any of the conditions herein contained the said dispute or difference shall be referred for settlement by AR 27/2011 3 arbitration to the District Collector.” 5. The question involved in this Arbitration Request is whether any dispute or difference between the Government or their officers on the one hand and the grantee of a patta and order of assignment of land on registry for rubber cultivation under the Rules for the Assignment of Government Land for Rubber Cultivation, 1960 or his successors in interest on the other, is arbitrable under the Arbitration and Conciliation Act, 1996 by the District Collector as provided in the order of assignment of land on registry for rubber cultivation or whether the arbitration clause would not apply in a case where the assignment on registry is proposed to be cancelled. 6. In Joemon Joseph vs. Tahsildar (2011(2) KLT 1007), it was held thus : “22. The crucial question to be decided is whether there is an arbitrable dispute in the present case. The Rules for Rubber Plantation (sic Cultivation) do not provide for cancellation of patta which was granted on assignment on AR 27/2011 4 registry. R.20 of the Rules for Rubber Cultivation only provides for cancellation of licence. Grant of licence is contemplated to be made for a period of ten years. Rule 8 provides for assignment on registry on the expiry of the period of licence. A specific provision is made in Rule 20 for cancellation of licence. But no such provision is made for cancellation of patta granted on registry. However, conditions could be imposed while granting patta. In the present case, such conditions are provided in the patta and in the order of assignment. The order of assignment itself provides that the registry is liable to be cancelled for contravention of conditions 1 to 3 therein or the conditions specified in the patta. Clause 10 of the order of assignment states that the assignee shall not use the land except for the purpose for which it is assigned. Condition (1) in the patta is also the same. Therefore, if the assignee uses the land or suffer it to be used except for the purpose for which it is assigned, there is no doubt that the registry can be cancelled for contravention of the conditions in the patta. The applicants have no dispute that such a power exists. Their contention is that the dispute in the present case is also a dispute AR 27/2011 5 which is arbitrable under clause 14 of the order of assignment. According to the applicants, there is no violation of the conditions specified in the patta. According to them, licenses were granted to them for quarrying under the Kerala Minor Mineral Concession Rules, 1967 by the competent authority. They also say that they have cultivated the land with rubber. According to the applicants, quarrying made in the land after getting the necessary licence does not violate the conditions of patta. The question of fact to be decided before cancelling the registry is whether the assignee has used the land except for the purpose for which it is assigned. Whether a dispute on such questions of fact would constitute a dispute within the meaning of clause 14 of the order of assignment, is the material question. If the contention of the learned Government Pleader is accepted, violation of the conditions in the order of assignment and the patta would lead to cancellation of patta and any dispute or difference between the Government and the assignee in respect of the same would not constitute a dispute within the meaning of clause 14 and in such a case, reference for settlement by arbitration by the District AR 27/2011 6 Collector is not required. According to the learned Government Pleader, the power to be exercised for cancellation of patta is quite different from the jurisdiction of the Collector as an Arbitrator to decide the dispute and difference arising between the parties. 23. On a careful consideration of the order of assignment, the conditions of patta, the provisions of the Rules for Rubber Cultivation and the material documents, I am not inclined to accept the contention put forward by the learned Government Pleader. The conditions in the patta and the conditions in the order of assignment are contributory to each other. The order of assignment confers power for cancellation of the registry for contravention of certain conditions specified in the patta. Condition (1) specified in the patta is that the assignee shall not use the land or suffer it to be used except for the purpose for which it is assigned. The same condition finds a place in the order of assignment also (clause 10). Clause 13 of the order of assignment reserves the existing and customary rights of government and the public in roads, paths, rivers, streams, channels, etc. through or AR 27/2011 7 bordering the land and the right of the Government in mines and quarries. Whether use of the land for quarrying as per the permission granted by the authority concerned would be violation of the conditions of the order of assignment or the conditions in the patta, whether the land has been used for the particular purpose for which it is assigned, the consequences of the alleged offending acts, whether the assignee resides in the land assigned are ail involved in the decision on questions of fact. On certain aspects, decision on questions of law also may be required. But, predominantly without there being a resolution on the disputed questions of facts, no decision could be arrived at by the authority to cancel the registry to the assignee. What is the nature of the dispute or difference as contemplated in clause 14 of the order of assignment? It covers the rights, duties or liabilities of either party in respect of any matter or thing relating to or arising out of the grant or the construction or the meaning of all or any of the conditions contained in the order of assignment. Any dispute or difference on the construction or the meaning of the conditions in the order of assignment would constitute a dispute within AR 27/2011 8 the meaning of clause 14. Any dispute or difference as to the rights, duties or liabilities of either party in respect of any matter or thing relating to or arising out of the grant also would be a dispute within the meaning of clause 14. The words used in clause 14 are very wide to cover any dispute between the parties in respect of any matter or thing relating to or arising out of the grant or the disputes as to the construction and meaning of the conditions contained in the order of assignment. It cannot be said that a decision to be made by the authority to cancel the registry for contravention of any of the conditions 1 to 3 in the order of assignment or contravention of any of the conditions in the patta would in no case involve resolution of a dispute which is covered by clause 14 of the order of assignment. The resolution of such disputes may attract clause 14 of the order of assignment. A question may arise as to what should be done after the settlement of the dispute by arbitration by the District Collector. Settlement of dispute does not necessarily mean a compromise of all the disputes. The settlement of dispute by arbitration includes decision on the disputes as well. If the District Collector, in his capacity as AR 27/2011 9 Arbitrator, comes to the conclusion that there was no violation of the conditions of the patta or the conditions of the order of assignment, no further proceedings are required. On the other hand, if it is found that there was violation of the conditions by the assignee, the District Collector in his capacity as the Arbitration, could pass an order holding that proceedings are to be initiated for cancellation of patta. If remedial measures are sufficient and if they are taken it is not necessary to cancel the patta. On the other hand, if further proceedings are required, the necessary proceedings as contemplated under the order of assignment and the conditions of patta as well as the Rules could be taken for cancellation of patta. The dispute to be resolved by arbitration is contemplated in clause 14 of the order of assignment. For cancellation of registry of the grantee, several other recourses could be taken on the ground of violation of the terms and conditions Remedial action could be taken by way of proceedings for settlement, of disputes by arbitration. It is not the drastic order of cancellation of patta alone that is contemplated by the Government for each and every violation of the order of assignment of land on registry for rubber AR 27/2011 10 cultivation. The approach that each and every violation, though minor in nature, would entail in the cancellation of patta and no other via media is possible, would be too technical an approach. Various contingencies and situations may arise which are beyond the imagination of the rule making authority. Such contingencies could be dealt with and remedial action could be taken by recourse to arbitration, as provided in clause 14 of the order of assignment. For the aforesaid reasons, I hold that the dispute is arbitrable under clause 14 of the order of assignment.” In view of the judgment in Joemon Joseph vs. Tahsildar (2011(2) KLT 1007), the Arbitration Request is liable to be allowed. Accordingly, the Arbitration Request is allowed. The District Collector, Ernakulam, shall resolve the disputes referred to in the Arbitration Request in accordance with the provisions of the Arbitration and Conciliation Act, 1996. K.T.SANKARAN JUDGE csl