IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 WP(C).No. 16260 of 2008(I) ----------------------------------------- PETITIONER: --------------------- THE TRIVANDRUM GOLF CLUB, REPRESENTED BY ITS HONORARY SECRETARY, DR.S.K.BALAKRISHNA NAIR, S/O.N.K.KRISHNAN NAIR, KOWDIAR, TRIVANDRUM. BY ADV. SRI.T.KRISHNAN UNNI (SR.) SRI.SAJU.S.A RESPONDENT: ----------------------- STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY SPL.GOVERNMENT PLEADER(FORESTS)SRI. RENJITH THAMPAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2008 ALONG WITH WPC NO. 16363 OF 2008 AND WPC NO. 16393 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.GIRI, J. ------------------------- W.P.(C) No.16260, 16363 & 16393 of 2008 ------------------------- Dated this the 23rd day of September, 2008. JUDGMENT Common issues which arise for consideration in these cases, relate to the validity of the action taken by the Government in resuming possession of the properties being used by the Trivandrum Golf Club, as a Golf Course, along with buildings situate in the same property and being used by the Club as such for ancillary purposes. While the Trivandrum Golf Club {hereinafter referred to as 'the petitioner'}, is the petitioner in W.P.(C) No.16393 and 16260 of 2008, two of the members of the club are the petitioners in W.P.(C) No.16363/08. The adjudication of the dispute raised in W.P.(C) No.16393/08 would obviously govern the result of the other two cases also. Therefore, I will refer to the facts and contentions raised in W.P.(C) No.16393/08. 2. An extent of 25.38 acres of land in Peroorkada Village, situated at Kawdiar in the W.P.(C) No.16260 of 2008 & con. cases :: 2 :: heart of Trivandrum city, is the subject matter of this litigation. The said extent of land originally belonged to the Maharaja of Travancore and apparently it became Government land on the formation of the State. But, even earlier, in the late 1890's a Golf Course was established in the said land. Thereafter, it became the property of the Government. In 1950, the Government entrusted the management of the Golf Course with the Trivandrum Golf Club (There is a dispute as to whether the club, as it exists now, is the same entity or a successor in interest of the club as it stood then. It is not necessary to consider it now). 3. By Ext.R1(d) dated 8.8.1963, the Government issued directions relating to the management of the Golf Club and attached buildings. The Golf Club was to pay a rent of Rs.30/- per month for the period from 1.4.1962 onwards for using the Golf Course. But it was made clear that Golf Course was to be made available for the tourists sponsored by the Tourism Department. The expenditure incurred by members, charges for use of the telephone, water W.P.(C) No.16260 of 2008 & con. cases :: 3 :: and sanitary expenses and the maintenance of the furniture were to be borne by the club. 4. On 11.10.1966 in modification of Ext.R1 (d), by G.O.(MS)No.226/66 dated 11.10.1966, marked as Ext.P6, the Government, taking note of the request made by the President of the Club that a long term agreement would enable the Golf Club to develop the Golf Club to National standards, issued an order, inter alia, directing that the Golf club will have the right to user of the property for a period of 99 years, non-alienable, from the date on which the Golf club was permitted to use the property. 5. There is a dispute as to what happened thereafter. It is the petitioner's case that Ext.P1 licence deed was thereafter executed between the Government (Governor of Kerala represented by the concerned Executive Engineer and the members of the Club (representatives of the club) as such. Ext.P1 licence deed is seen to have been executed on 24.6.1967. There is now a dispute raised by the Government as to whether such a licence deed was executed or not. But, it is to be noted that the original of the licence W.P.(C) No.16260 of 2008 & con. cases :: 4 :: deed said to have been executed on 24.6.1967 has not been placed on record. The Government figures as the Licensor and Trivandrum Golf Club as the Licensee. The petitioner submits that the Government is the custodian of the licence. The Government, on the other hand, submits that they are not in possession of the “original document executed, signed and sealed in that behalf”. Ext.P1 licence deed refers to Ext.R1(d) Government order, which is the same as Ext.P12 order dated 11.10.1966. As stated above, the Government is the Licensor and the Trivandrum Golf club is the Licensee, as per Ext.P1. 6. Clauses vii, xi and xii of the Licence deed are the matters on which considerable contentions have been raised. Therefore, they are extracted hereunder: “vii. The licensee shall keep the premises neat and the properties of the Licensor shall be preserved carefully. xi. In case the land and buildings are required for any purpose of the Licensor, the Licensor shall have the right to cancel the licence and to resume the property at the expiry of 30 years from 11th October, 1966 by giving the licensee two years' notice. W.P.(C) No.16260 of 2008 & con. cases :: 5 :: The Licensor shall also have the right to cancel the licence and resume the property at any time without notice in case the buildings and premises are used for purpose other than that for which it is given. xii. In case the Licensee defaults payment of the rent as specified above, the Licensor shall have the power to recover the dues if any from the Licensee in the manner hereinafter contained.” 7. It is common case that the Golf Club continued in management of the Golf Course as such. Maintenance of the building situated in the same premises was apparently being undertaken by the Public Works Department of the Government, though it seems that, at some point of time, the club also got itself involved in the up keep of the building as such. But till 1979, as evidenced by Ext.P2 dated 2.8.1979, the maintenance of the buildings, Garden, golf course etc., was being done at Government expenses. I do take note of the stand taken by the petitioner in this regard that they were involved in the maintenance of the golf club at some point of time. But apparently taking note of the report of the Public Accounts Committee of the State Legislature, that there is W.P.(C) No.16260 of 2008 & con. cases :: 6 :: non-fulfillment of the main purpose for which the Trivandrum Golf Club came to be established and that the Golf Course came to be entrusted with the club viz., promotion of tourism, had not been achieved. The said Public Accounts Committee recommended that if the Government still felt that the Golf club should be run for attraction of tourists, the Government should reconsider whether all the concessions extended to the club were indispensable and reasonable. It seems that, taking note of the recommendations, Ext.P2 order dated 2.8.1979 was issued declaring that the practice of maintaining the buildings, garden, golf course etc. of the club fully at Government expenses should be stopped. The Government then directed that the club will be paid an annual grant of Rs.35,000/- and the maintenance of the building of the club premises will continue to be the responsibility of the Public Works Department, but the cost must be met from the annual grant paid to the club. The maintenance of the golf course, garden, premises etc. will be the responsibility of the club, but the grant was to be routed through the Kerala Sports Council. The W.P.(C) No.16260 of 2008 & con. cases :: 7 :: executive committee of the Trivandrum Golf Club was to be a 11 member body of which 6 will be Government nominees. As stated above, the Articles of Association of the club were to be amended suitably. 8. There does not seem to have been any dispute for some time. But, in 1999, fearing a proposal on the part of the Government to take over the management of the club and to resume possession of the premises where the golf club was being run, the petitioner herein approached this court with O.P.No.18222/99 for interdicting the Government in that behalf. Ext.P3 counter affidavit was filed by the Under Secretary of the PWD. Reference was specifically made to Ext.P1 licence deed and Ext.P12 Government Order. Apparently, the Government affirmed that the relationship between the Government on one hand and the Golf club on the other was regulated by Ext.P1 licence deed, though the Government has the pre-eminent right to resume possession and management of the property as a Licensor under Ext.P1 licence deed. The said writ petition was disposed of by Ext.P4 judgment, where, after W.P.(C) No.16260 of 2008 & con. cases :: 8 :: recording the stand taken by the Government that they do not have a proposal to take over the Golf Course as such, this court directed the Government to communicate the decision, if any, taken in the matter, after considering the recommendation made by the members of the Kerala Legislative Assembly. The right of the petitioner to challenge the decision taken by the Government was left in tact. 9. Again there was a lull in the hostilities for some time. But, in 2002, apparently, taking note of the fact that, apart from conducting the Golf course, some of the members were also making, what will have to be described as 'extensive use of premises' for activities which were not related to game of golf, the Government thought it appropriate that it should get an additional share of the income which the club was amassing. Ext.P5 came to be passed on 29.6.2002. Paragraphs 2 and 3 of the said order read as follows: “2. Government have examined the request of the club with reference to the conditions of the lease agreement. The lease agreement (clause i and v) provides that Government should meet the cost of maintenance and also the W.P.(C) No.16260 of 2008 & con. cases :: 9 :: gardener's pay and water charges of the building. Government have since stopped meeting such expenditure as provided in clauses i & v. In such a circumstances the additional income by means of permitting the premises for meeting and other activities of the members of the club as now proposed to be raised would enable the club to upgrade the level of maintenance and up-keep of the premises to be required standard. 3. In consideration of the above mentioned reasons, Government are pleased to grant the request of the Club. The club will, however, remit to Government a share of the additional income so generated. The Club will remit an amount of Rs.25,000/- per annum initially. The amount of remittance to Government will be subject to further review after assessing the level of such income that the club is likely to received.” 10. Again, there does not seem to have been any significant resumption of the hostilities between the Government and the golf club. But it seems that in the year 2007, the Government felt that the conditions of the licence, as evidenced by Ext.P1, were not being strictly followed by the Club and therefore, this gave rise to a situation W.P.(C) No.16260 of 2008 & con. cases :: 10 :: where the Government decided to resume the management of the club and resume possession of the property forming the subject matter of Ext.P1 licence deed. The Government took note of the report of the petitions committee of the Kerala Legislative Assembly Ext.R1(c) and issued a show cause notice to the club Ext.P6. Ext.P6 proceeded on the premise that the Government have signed a licence deed (Ext.P1) as stipulated in Ext.P12 Government Order dated 11.10.1966. Apparently, since the licence deed specifically contemplated the Government being enabled to resume the land and buildings immediately if there is a violation of the terms of the agreement in the licence deed, the show cause notice required the club to explain why the resumption of the subject matter of licence deed along with other buildings should not be effected by the Government in exercise of the powers made available to the Government in the licence deed as such. 11. On the premise that there was no specific allegation in the show cause notice and all that Ext.P6 show cause notice contained was a reference to Ext.R1(c) report of the Legislative W.P.(C) No.16260 of 2008 & con. cases :: 11 :: committee a reply was given as per Ext.P7 by the club on 18.1.2008. 12. It seems that the members of the club were called for a hearing by the Revenue Secretary. Thereafter by Ext.P8 Government order dated 31.5.2008 the Government passed an order, which reads as follows: “(i) The land extending 25.38 acres now in possession of the Golf Club, Thiruvananthapuram Survey Numbers 2/2, 2/5, 227/2-4, 250/2, 250/1-3 and 256/3 (Re-survey No.4 (block 27) in Peroorkada Village, Thiruvananthapuram Taluk shall be resumed to Government with immediate effect. (ii) The District Collector, Thiruvananthapuram will take immediate action to resume the land. II. The Government has also decided that the future management of the Golf Course so resumed by the Government from the Club may be on the basis of the recommendations to be made jointly by the Minister Revenue), Minister (Education and Culture) and th Minister (Law & Parliamentary affairs).” 13. Consequential orders Exts.P9, P10 and P11 were also issued. The land in the possession W.P.(C) No.16260 of 2008 & con. cases :: 12 :: of the club was taken possession of by the Government. Exts.P8 to P10 have been challenged by the petitioner. 14. A detailed counter affidavit has been filed by the Government. I will have to straight away mention the fact that there was considerable controversy, resultant upon the resumption of the land by the Government and the first prayer made by the petitioner was to interdict the Government from resuming possession of the land and the buildings as such. This court, by an interim order, directed the Government to hand over possession of the property. The same has been complied with by the Government. But, later a detailed counter affidavit has been filed by the Government, traversing each and every contention taken by the petitioner. 15. I consider it necessary to recapitulate the contentions taken up by the Government. (1) There is no licence deed executed between the Government and the petitioner as contended by the petitioner. At any rate, there is no licence deed as contemplated by Article 299 of the Constitution. W.P.(C) No.16260 of 2008 & con. cases :: 13 :: Consequently, the petitioner is not entitled to assert the status of a licensee. (2) Assuming, without admitting that there is a licence deed, as contended by the petitioner, the relationship between the petitioner and the Government is purely contractual and therefore, revocation of the licence or breach of contract, as the case may be, will not enable the club to continue to maintain this writ petition. The remedy, if any, lies elsewhere. (3) There is a consistent breach of Ext.P1 licence deed (assuming that there is a licence deed). This is inter alia evidenced by the fact that the premises of the club were used for purposes other than the maintenance of the golf course and the game of golf. The premises have been commercially exploited. (4) Portion of the premises is used as a Bar. This is a breach of the conditions as such. (5) At any rate, the question as to whether a licence was brought into existence and whether there was any breach of the conditions are disputed questions of fact, which cannot be resolved in proceedings under Article 226 of the Constitution. (6) Assuming that there has been illegal revocation of the licence, as contended by the petitioner, the W.P.(C) No.16260 of 2008 & con. cases :: 14 :: remedy of the petitioner is only by way of claim for damages in civil court, in terms of Section 64 of the Easements Act. 16. A detailed reply affidavit has been filed by the petitioner. 17. I heard learned Senior counsel for the petitioner Sri.T.Krishnan Unni, in W.P.(C) No.16393/08 and Sri.George Thomas, learned counsel for the petitioner in W.P.(C)No.16363/08 and Sri.Ranjit Thampan, learned Special Government Pleader on behalf of the Government. 18. Sri.Ranjit Thampan contends quite vehemently that the substratum of the case built up is rested on Ext.P1 licence deed. If there is no licence deed, obviously there is no violation of the conditions of the same. The propriety of the Government in issuing a notice and resuming possession as such really do not arise. After all, it is not disputed by any person, that the Government is the paramount title holder of the property. There cannot be any implied licence. If there is no licence deed, then obviously the Government can merely seek and assert its rights over its own property and seek resumption of land W.P.(C) No.16260 of 2008 & con. cases :: 15 :: or management of the golf club or both together. The Government only asserts its paramount title over the property. It is further contended that insofar as the Government is concerned, unless there is a written, signed and executed licence deed, which satisfies the ingredients of Article 299 of the Constitution, it is not open to anyone to contend that there is a licence. Mr.Thampan made reference to the following decisions of the Supreme Court in this regard. (i) U.P.Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd {AIR 1996 SC 1373}, (ii) K.P.Chowdhry v. State of M.P. {AIR 1967 SC 203}, (iii) Mulamchand v. State of Madhya Pradesh {AIR 1968 SC 1218}, (iv) Bihar E.G.F.Co-op. Society v. Sipahi Singh {AIR 1977 SC 2149}, (v) State of Punjab v. M/s.Om Prakash Baldev Krishan {AIR 1988 SC 2149} and (vi) Vidhyadharan v. State of Kerala {1980 KLT 421}. 19. Under the Indian Easements Act, licence amounts to a permission without which, the act is rendered invalid. But a licence need not W.P.(C) No.16260 of 2008 & con. cases :: 16 :: always be in writing. A licence could be oral as well. The definition of licence does not exclude the possibility of an oral licence. An oral licence could be inferred even ex post facto. A licence over a prolonged period may give rise to other rights. Existence of a written agreement enables a person to claim certain rights. These are possibly the principles that could be treated as trite in the context of a licensee-licensor relationship otherwise comprehended by the Easements Act. 20. But obviously, these aspects will have to be kept at bay when a person asserts the status of a licensee qua Government as a Licensor. In such cases, there has to be a written agreement and the competent authority contemplated under Article 299 of the Constitution will have to sign a licence agreement on behalf of the Governor. Such person must, in terms of the Rules of Business, be competent to enter into a contractual relationship on behalf of the Government. If the contract between the Government and another person is not in strict compliance with Article 299(1), it would be no contract at all and could not be W.P.(C) No.16260 of 2008 & con. cases :: 17 :: enforced either by the Government or by the other person as a contract” Vidhyadharan v. State of Kerala {1980 KLT 421}. The conditions provided in Article 299 are not to be diluted. Substantial compliance with the said Article is not sufficient. The provisions of Article 299(1) of the Constitutions are mandatory in character and as the Supreme Court has held, the contravention of the provisions of Article 299(1) nullifies the contracts and renders them void {see the judgment of the Supreme Court in Mulamchand v. State of Madhya Pradesh {AIR 1968 SC 1218}. It is not open even to the Government to dispense with the requirements under Article 299. There is no question of estoppel or ex post facto ratification being raised against the Government qua the requirements of Article 299 Bihar E.G.F.Co-op. Society v. Sipahi Singh {AIR 1977 SC 2149}. A letter of acceptance signed by the Executive Engineer, who is otherwise competent, will not constitute a binding contract {see State of Punjab v. M/s.Om Prakash Baldev Krishan AIR 1988 SC 2149}. The contract should be approved and signed on behalf of the Governor with its seal by W.P.(C) No.16260 of 2008 & con. cases :: 18 :: a duly competent officer. The doctrine of indoor management cannot be extended to formation of the contract under Article 299 U.P.Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd {AIR 1996 SC 1373}. The contention of Mr.Thampan that the conditions under Article 299 cannot be diluted and a signed licence deed, in which the Governor represented by a competent authority and the members of the golf club have subscribed their signature, is a pre- requisite for the petitioner to assert the status of a licensee and also claim the limited rights, otherwise flowing in their behalf deserves to be accepted. 21. It is the specific stand taken by the Government, in the counter affidavit as also in the impugned order Ext.P8, on behalf of the Government that they have not been able to trace out the original signed licence deed as such. Expatiating on the same stand, it is now the stand taken by the Government that in the absence of a licence deed, it is not possible for the petitioner to assert the status of a licensee. The petitioner claims to be a party to Ext.P1. Even going by their own stand, therefore, there is W.P.(C) No.16260 of 2008 & con. cases :: 19 :: nothing improbable in the petitioner being required to produce the original of the licence deed. But the stand taken up by the petitioner is that the Government was the custodian of the licence deed and it is up to the Government to produce the licence deed. If it is found that there is no licence deed or if this court is not capable of finding that, there are sufficient materials to indicate that there was a licence deed executed by the members of the committee and the competent authority of the Government, then it may not really be necessary to refer to the other contentions of the petitioner. 22. But there are some telltale circumstances which support the case of the petitioner though the original of the licence deed is not forthcoming. 23. Ext.P1 licence deed, though only a photo copy, refers to Ext.P12 and Ext.R1(d) Government orders. Secondly, Ext.P2 Government order dated 2.8.1979 specifically refers to the licence deed (though described as a lease deed as such). Thirdly, Ext.R1(c) report of the Petitions Committee of the Legislative Assembly specifically W.P.(C) No.16260 of 2008 & con. cases :: 20 :: refers to the licence deed. Fourthly, Ext.P3 counter affidavit filed by the Under Secretary of the PWD in O.P.No.18222/99 not only refers to Ext.P12 Government Order, but also to Ext.P1 licence deed. In fact, it is stated as follows: “Licence deed dated 24.6.2967 was also executed between the Honorary Secretary, Trivandrum Golf Club on the one part and Executive Engineer, B & R Division, Thiruvananthapuram for and on behalf of the Governor of Kerala on the other part”. 24. Ext.P3 counter affidavit thereafter refers to various clauses in the licence deed either for the purpose of asserting government's right or for repudiating the rights asserted by the petitioner. It also affirms the paramount authority of the Government to resume possession, at any point of time, without giving any reasons, subject to the provision of a minimum notice of 2 years or in the alternative for violation of the conditions of the licence as such. Apparently Ext.P3 counter affidavit was referred to by this court while disposing of the earlier writ petition. 5thly, Ext.P5 order