IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 10TH JULY 2007 / 19TH ASHADHA 1929 WA.No. 1058 of 1999(A) AGAINST THE JUDGEMENT IN OP.3593/1996 Dated 07/04/1999 APPELLANTS: PETITIONERS 1 TO 10: 1. VARKEY MATHEW, AGED 56 YEARS, S/O.MATHEW, NIRAWATH HOUSE, VATTAYAR P.O., PEECHAD, DEVIKULAM. 2. N.M.JOHNSON, AGED 29 YEARS, S/O.VARKEY, NIRAWATH HOUSE, VATTAYAR P.O., DEVIKULAM. 3. N.V.SIMON, AGED 28 YEARS, S/O.VARKEY, NELLITHANAM ESTATE, VATTAYAR P.O., PEECHAD, DEVIKULAM. 4. P.J.GEORGE, AGED 57 YEARS, S/O.JOSEPH, PULIKKAL VEEDU, VATTAYAR P.O., PEECHAD, DEVIKULAM. 5. MRS. KALLIYANI KUNJUKUTTY, AGED 59 YEARS, W/O.KUNJUKUTTY, PARAKKAL HOUSE, VATTAYAR P.O., DEVIKULAM. 6. MRS. LALY MATHEW, AGED 35 YEARS, W/O.MATHEW, KORUKATTIL VEEDU, VATTAYAR P.O., PEECHAD, DEVIKULAM. 7. MRS. SHEEL ELDHOSE, S/O.ELDHOSE, MULIKKAL VEEDU, VATTAYAR P.O., DEVIKULAM. 8. N.V.ELDHOSE, NIRAVATH HOUSE, VATTAYAR P.O., PEECHAD, DEVIKULAM. 9. BABY THOMAS, S/O.THOMAS, KARIPARAMBIL HOUSE, KALLAR, VATTAYAR P.O., DEVIKULAM. 10. CHERIYAN K.THOMAS, KILAKKAL HOUSE, KALLAR, VATTAYAR P.O., PEECHAD, DEVIKULAM. BY ADV. SRI. P.B.KRISHNAN. RESPONDENTS: RESPONDENTS 1 TO 8: 1. THE TAHSILDAR, DEVIKULAM TALUK, DEVIKULAM. 2. THE LAND ASSIGNMENT TAHSILDAR, DEVIKULAM. 3. VILLAGE OFFICER, ANAVIRATTY VILLAGE, ANAVIRATTY, DEVIKULAM. 4. DISTRICT COLLECTOR, IDUKKI DISTRICT, PAINAVU P.O., KUYILUMALA. 5. REVENUE DIVISIONAL OFFICER, DEVIKULAM. 6. ASSISTANT CARDAMOM SETTLEMENT OFFICER, DEVIKULAM. 7. FIRST MEMBER, BOARD OF REVENUE (LA), TRIVANDRUM. 8. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. BY SENIOR GOVERNMENT PLEADER SRI.P.K.BABU ADVOCATE GENERAL ADDL.ADVOCATE GENERAL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/6/2007, THE COURT ON 10/07/2007, DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & K.T.SANKARAN, J. ---------------------------------------------------- W.A. NO. 1058 OF 1999 ---------------------------------------------------- Dated this the 10th July, 2007 JUDGMENT Sankaran, J. The questions of law involved in this Writ Appeal are the following: 1) Whether an encroacher on government land, possession of which was resumed under the Kerala Land Conservancy Act, is entitled to claim lease of that land under the “Rules for Lease on Government Lands for Cardamom Cultivation, 1961” (hereinafter referred to as Cardamom Rules)? 2) Whether a person who has encroached on Government land after 5.6.1961, the date of commencement of the Cardamom Rules, is entitled to the grant of a lease under the Cardamom Rules? 3) Whether a person claiming under an encroacher, on the basis of an agreement for sale, can claim to get a lease under the Cardamom Rules? 4) Whether the Board of Revenue has jurisdiction to pass an order to grant lease by regularization under the Cardamom Rules contrary to Rule 5 of the Rules which provides for public auction of the lands taken possession of by the Government after evicting a lessee or an encroacher? 5) Whether an encroacher on government land is entitled to the relief of a writ of mandamus to get implemented the order passed by a member of the Board of Revenue in contravention of Rule 5? 2. The dispute relates to an extent of 224.21 acres of land in Anaviratty Village in Devicolam Taluk in Kottayam District. In the year 1122 ME (corresponding to 1946-47), M/s.Nellithanam Rubber Produce Company W.A. NO.1058 OF 1999 :: 2 :: Ltd., Calicut (hereinafter referred to as ‘Company’), approached the Government of Travancore for assignment on registry an extent of 50 acres of land in Sy.No.234 of Pallivasal Village (now Anaviratty Village). The Government of Travancore, as per order dated 13.6.1943, sanctioned to assign 50 acres of land on registry to the Company. Survey was conducted and it was found that the Company was in unauthorized possession of 224.21 acres of land. The Company filed an application before the Government for assignment on registry of the entire extent of 224.21 acres of land. The request of the Company was rejected on the ground that the Company had violated the conditions of the Cardamom Land Registry Rules 1935, under which assignment of lands on registry was ordered to be granted in respect of 50 acres of land. The Company continued its pursuit to get assignment of the land which was declined by the Government of Travancore and the Government of Travancore-Cochin and subsequently by the Government of Kerala. In 1944, the Company was evicted from the land. It would appear that in the next year, the Company encroached upon the land. In the year 1961, the “Rules for Lease of Government Lands for Cardamom Cultivation, 1961” came into force and it was published in the Gazette on 5.6.1961. The Assistant Settlement Officer for cardamom lands, the authorized officer under the Rules, ordered to resume the land from the Company. On 28.8.1980, an extent of 75 acres of land was resumed to the Government from the Company. As it was found that the Company had W.A. NO.1058 OF 1999 :: 3 :: unauthorisedly alienated an extent of 65.48 acres in Sy.Nos.234 and 1393 of Pallivasal Village, the said extent was resumed to the Government on 19.9.1987. Thus, a total extent of 140.48 acres was resumed to the Government. The Company was in unauthorized possession of 88.19 acres of land. Proceedings under the Kerala Land Conservancy Act were initiated against the Company. The Company claimed that an extent of 88.19 acres was taken over by M/s.Joseph Estate and Hotels (P) Ltd., from M/s.Nellithanam Rubber Produce Company. In the meanwhile, trees were cut from the 88.19 acres of land and proceedings were initiated against the Company. As per order dated 28.1.1988 (Ext.P22), fine was imposed on the Company. It is stated in Ext.P22 thus: “The encroachment will be evicted”. 3. It would appear that the Company filed an appeal before the Cardamom Settlement Officer, Devicolam and it was rejected on 10.6.1988. Subsequently, on 28.3.1989, an extent of 88.10 acres was resumed to the Government. The said land was entrusted to the Village Officer for protection and maintenance. At the time when the land was resumed on 28.3.1989, eight persons employed by the Company were found residing in the property, occupying extent of five cents each. The proceedings for eviction of the employees were stayed by the Government. 4. The petitioners claim right over the land under agreements dated W.A. NO.1058 OF 1999 :: 4 :: 10.5.1980 and 26.12.1980 executed between them and the Company, for purchase of different portions of the land. In the Original Petition the petitioners have put forward their right/claim as follows: “The petitioners executed two separate Agreements with the Company on 10.5.1980 and 26.12.1980 for the purchase of different portions of this land. Thus from 1980 onwards the petitioners were in exclusive possession and enjoyment of this property. The Company was in possession of this land for more than four decades at the time when the petitioners purchased it in the year 1980. In fact, by adverse possession for more than the prescriptive period the petitioners as well as their predecessors-in- interest namely the Company had perfected their title over this land by prescription.” 5. It would appear that in the year 1993, the petitioners had applied before the Special Deputy Tahsildar, Cardamom Settlement, Devicolam for assignment of the land allegedly in their occupation. The Special Deputy Tahsildar, Cardamom Settlement, Devicolam, passed Exts.P18 to P21, P40 and P41 orders dated 22.7.1993 holding that the petitioners are guilty of offence committed under Section 5 of the Kerala Land Conservancy Act and fine was imposed on them. It is further stated in these orders thus: “The encroachment will be evicted.” A perusal of Exts.P18 to P21, P40 and P47 would indicate that the total extent claimed by the petitioners is 131.55 acres. 6. Exts.P25 to P27 dated 21.6.1989 and Exts.P28 to P37 dated W.A. NO.1058 OF 1999 :: 5 :: 8.11.1991 are letters issued by the Secretary to the Government to the petitioners individually. Ext.P25 to P27 issued to petitioners 1, 6 and 8 respectively would indicate that they had submitted a petition dated 20.6.1989 to the Honourable Minister for Revenue and Tourism. Exts.P28 to P37 issued individually to petitioners 1 to 10 respectively would indicate that on 14.10.1991 they had submitted a petition to the Government. Exts.P25 to P37 letters state that the proceedings for eviction of the petitioners from the land were stayed by the Government till the disposal of the petition submitted by them. 7. M/s.Nellithanam Rubber & Produce Company Ltd., did not pay any amount to the Government under the Land Conservancy Rules. Ext.P52 statement prepared and produced by the petitioners to show that they have paid amounts to the Government under the Land Conservancy Rules, would show that as per orders dated 28.1.1988 in LC.1/81, a sum of Rs.3,47,915/- and Rs.2,26,000/- were due from the Company to the Government and that no remittance was made by the Company. There is no case for the petitioners that the Company did pay any amount under the Land Conservancy Act and Rules to the Government at any point of time. Exts.P53 to P59 are produced by the petitioners to show that they have paid some amounts to the Government as land conservancy dues. W.A. NO.1058 OF 1999 :: 6 :: 8. It is stated in the Original Petition that the petitioners approached this Court in O.P.No.17215 of 1993 complaining that the applications submitted by the petitioners were not considered by the Government. The prayer in O.P.No.17215 of 1993 was to issue a writ of mandamus directing the Government, Tahsildar and the Cardamom Settlement Officer to consider and dispose of the applications dated 14-10-2001 submitted by the petitioners. As per Ext.P64 judgment dated 15-12-1993, this Court directed the Board of Revenue to consider the applications and dispose of the same within a period of six months. By Ext.P1 proceedings dated 25.3.1995 Dr. D. Babu Paul, a member of the Board of Revenue, Thiruvananthapuram, disposed of the petitions submitted by the petitioners, as directed in O.P.No.17215 of 1993. After stating the facts in detail, the Board of Revenue concluded the order thus: “O R D E R The land has been with Nellithanam Rubber Produce Co. Ltd., since 1935. Therefore, the present possessors have derived of right in existence for almost 60 years. I therefore find that they are entitled to regularization of their possession subject to their paying up all dues on the land. Such regularization may be done as lease/assignment to the extent applicable, as per Rules.” 9. It would appear that the petitioners moved an application in O.P. 17215 of 1993 which was disposed of earlier, praying for a direction to the Government to dispose of their application dated 14-10-1991, and that application was allowed. The Government passed Exhibit P2 order dated, W.A. NO.1058 OF 1999 :: 7 :: which reads as follows: “I am to invite your attention to the reference cited. In C.M.P.No. 2607/94 in O.P.No. 1725/93 dated 6-4-94 the Hon’ble High Court has directed Government to dispose of your petition within six months. Accordingly Government have directed the Secretary, Board of Revenue (Land Records) to take immediate action in the matter. In reply the Secretary, Board of Revenue (Land Records) has informed Government that they heard your petition and issued orders in its proceedings No. D.Dis. 10677/90/LRKI dated 25-3-95. I am directed to inform you that Government do not wish to interfere in to the decision of Board of Revenue in this matter.” 10. The prayer in the Original Petition is to issue a writ of mandamus directing the respondents to implement Ext.P1 order dated 25.3.1995 passed by the Board of Revenue and to quantify the dues to be paid by the petitioners, as directed in Ext.P1, and to assign or lease out the land in question in favour of the petitioners as directed in Ext.P1. 11. When the Original Petition came up for admission, a statement was filed by the fifth respondent, Revenue Divisional Officer, Devicolam, wherein it was stated that the land in question is a cardamom hill reserve and the Special Deputy Tahsildar and Tahsildar are not competent to give effect to the orders passed by the Board of Revenue and the Government. It was also stated that the land in question was never included in the list of assignable lands fit for cardamom cultivation. W.A. NO.1058 OF 1999 :: 8 :: 12. The learned single Judge called for the records from the Board of Revenue. After considering the relevant facts, the learned single Judge felt that “the matter required a detail enquiry at the hands of the Government, since valuable government property worth crores of rupees was involved.” The learned single Judge noticed that Ext.P1 order and the subsequent order passed by the Government, Ext.P2, are contrary to the earlier stand taken by the Government, the Board of Revenue and the Cardamom Settlement Officer in various orders. The learned single Judge passed an interim order dated 23.8.1996, the operative portion of which reads thus: “I therefore direct the State Government to conduct a detailed enquiry in the manner they deemed fit on all aspects of the matter and submit a report to this Court within one month from today. I also direct the State Government to take immediate steps to realize the amount due from the Nellithanam Rubber Produce Co. Ltd., and also recoup the loss sustained by the Government for not conducting the auction of cardamom from Government property. Till a final decision is taken by the Government, and report submitted before this Court, there will be stay of Exts.P1 and P2 orders.” 13. The learned single Judge, by the judgment dated 7.4.1999 dismissed the Original Petition, which is under challenge in this Writ Appeal. In paragraphs 7 and 8 of the judgment, referring to the result of investigation, it is stated thus: “7. State Government after considering the entire matter, felt that the matter required detailed examination by the W.A. NO.1058 OF 1999 :: 9 :: Vigilance Department. Government, therefore, vide their letter No.7418/A2/96/Vig. Dated 23.10.1996 ordered a vigilance enquiry on all aspects of the matter. Accordingly, the Director of Vigilance, Investigation, entrusted the matter with the Deputy Inspector General of Police (Vigilance) to conduct a detailed enquiry and file a report. A detailed enquiry was conducted by the said officer, and report was submitted before the Director of Vigilance, Investigation. Enquiry report reveals serious lapses on the part of certain officers including the first member of the Board of Revenue, who issued Ext.P1 order. Serious allegations have also been raised against the former Deputy Tahsildar, Cardamom Settlement, Devikulam, who issued series of orders in favour of the petitioners herein, against whom some other corruption charges are pending and Crime No.3/95 under Section 13(1)(c) and Section 13(2) of the Prevention of Corruption Act and under Sections 409, 471, 477A IPC were registered by the Vigilance Police Station at Idukki on 22.6.1995.. Report also reveals that two ministers who were in charge at the relevant time have also contributed to a great extent in the failure of the Government machinery to redeem the situation. Vigilance report also recommended registration of crime cases under Section 447, 448, 468, 471, 420, 474, 181, 182 and 193 read with 34 IPC against the petitioners. Report recommended immediate summary and physical eviction of the petitioners and other encroachers from 224.21 acres of land. All findings and recommendations made by the Vigilance Officer were accepted by the Director of Vigilance, Investigation, who submitted a report dated 6.3.1997 to the Government to take further action in the matter. Counter affidavit filed before this Court as well as the report of the Vigilance Officer point out serious lapses on the part of Officers who dealt with the case and passed orders Exts.P1 and P2 sought to be implemented through this Court. Counsel for the petitioners still pressed for a writ of mandamus to implement those orders, therefore it has become necessary to examine the validity of Exts.P1 and P2 orders.” 14. The learned single Judge found that after the land was taken possession of by the Government, some of the petitioners trespassed upon the property on the strength of the stay order granted by the Government. W.A. NO.1058 OF 1999 :: 10 :: The learned single Judge also took note of the fact that the Board of Revenue, as per the order dated 4.1.1990 dismissed the revision petition filed by the Company challenging the order of the Cardamom Settlement Officer dated 10.6.1988. The Board of Revenue held that the Company was not eligible to get assignment of the land. Against the order of the Board of Revenue, the Company filed revision before the Government. As per the order dated 16.5.1994, the Government dismissed the revision filed by the Company. 15. All the authorities, including the Government, found that the Company had no right to get assignment or lease of the land in question under the Cardamom Rules of 1961 and those orders have become final. Learned single Judge raised a question for consideration thus: “Question therefore to be considered is when all the authorities, including the Government, have found that the company has no right to get assignment either under the Land Conservancy Act or under the Cardamom Rules, 1961 and that order has become final how the petitioners claiming rights under the company have a better right which even the company did not have. Admittedly petitioners are claiming their rights under the company. Petitioners claimed their rights for the first time on 6.4.1989 by filing a petition before the Member, after the land was taken possession of by the Cardamom Settlement Officer on 28.3.89.” Referring to Ext.P1 order passed by a Member of the Board of Revenue (Dr.D.Babu Paul), learned single Judge held that: “I fail to see how Member, Board of Revenue could say that petitioners were in possession of the property for over 60 W.A. NO.1058 OF 1999 :: 11 :: years, when the Secretary of Board of Revenue and all the authorities have found that petitioners were never in possession and their claim is baseless.” It was found by the learned single Judge, on a careful analysis of the materials on record, that the petitioners encroached upon the property after it was resumed by the Government, only on the strength of a stay order granted by the Government. 16. It is also relevant to note that O.S.No.139 of 1959, Sub Court, Kottayam, was filed by the Company at the time when steps were taken to evict the Company. The trial court decreed the suit. On appeal as A.S.No.208 of 1962, a Division Bench of this Court allowed the appeal and dismissed the suit. It is also relevant to note that the petitioners had filed O.S.No.547 of 1991 on the file of the Sub Court, Thodupuzha for a prohibitory injunction restraining the defendants from evicting the petitioners. The defendants in the suit were the State of Kerala, Divisional Forest Officer, Munnar, Range Officer, Adimali and the Forester. The suit was dismissed as withdrawn. 17. At the time of final hearing, learned single Judge called for the files from the Board of Revenue and perused the files which consisted of more than 1750 pages and two volumes of the enquiry report. After carefully going through the records available before Court and considering all the W.A. NO.1058 OF 1999 :: 12 :: contentions put forward by the parties, learned single Judge held that the petitioners have no legal right to claim lease of the land in question and that they are not entitled to the reliefs prayed for in the Original Petition. The learned single Judge also issued the following directions: “Government may also deal with the land in question, which is a cardamom land, under the Cardamom Rules, 1961. Government will bestow serious attention to the vigilance report and the recommendation made therein and take further action. Government have a paramount duty to preserve their property. State’s interest is the primary consideration, not individual interest. Many of the Officers who dealt with file, failed to safeguard the interests of the State. So found in the Vigilance enquiry as well. It is for the Government to take further follow- up action. I hasten to add that if this is the manner in which Government properties were dealt with by the Board of Revenue, and other officers, at the relevant time, many of the orders passed by them necessarily require a second look, which the Government is perfectly entitled to do so in public interest.” 18. It is interesting to note in what manner the petitioners commenced and continued to put forward their claim over the property. The learned single Judge in this regard held as follows: (These findings of fact are not disputed by the counsel for the appellant). “I have gone through the files made available by the Government Pleader as well. There is nothing to indicate or suggest that petitioners were in possession of the property, at least from 1980 onwards, as contended by them. They raised their claim for the first time only on 6-4-1989 after obtaining a stay order from the Government and after the entire land was resumed by the Government from the company. Even in their petition dated 20-6-1989, they had no claim for 224.21 acres. Their claim was only three acres, five acres, etc. Now each of the petitioners claims more than 21 acres contending that they are in possession of those properties. Petitioners are relations. The first petitioner is the father, petitioners 2,3 and 8 W.A. NO.1058 OF 1999 :: 13 :: are his sons and 7th petitioner is the daughter- in- law of the first petitioner, and sixth petitioner is his daughter. Fourth petitioner is the father-in-law of the 8th petitioner. Their attempt, as a group and as a family, is to get at 224.21 acres of Government land.” 19. “Rules for Lease on Government Lands for Cardamom Cultivation, 1961” were framed in exercise of the powers conferred by Section 7 of the Kerala Government Land Assignment Act, 1960. The Rules shall apply to lease of land for cultivation of cardamom in the taluks of Devicolam, Peermade and Udumbanchola. The Rules came into force on its publication in the Gazette on 5.6.1961. Rule 3 of the Cardamom Rules provides that lands in the possession of encroachers who have cultivated the same with cardamom may be leased to them, without auction for a period of twenty years subject to the conditions mentioned in Rule 3. “Encroacher” is defined in Section 2(b) of the Rules, thus: “`Encroacher’ means and includes a person who is in unauthorized occupation of the land and has cultivated the same with cardamom”. At the time when the Rules were framed, the expression `encroacher’ was defined thus: “`Encroacher’ means and includes a person who is in unauthorized occupation of the land and has cultivated the same with cardamom on or before 26.4.1957”. Subsequently, the words and figures “on or before 26.4.1957” were substituted with the words and figures “on or before 8.1.1959”. By Notification dated 4.3.1967 (S.R.O.No.84/67), the words and figures “on or W.A. NO.1058 OF 1999 :: 14 :: before 8.1.1959” were omitted. That amendment was to take effect retrospectively from6-11-1965. Thus in the Cardamom Rules, as in force now, the “encroacher” need not be a person who was in unauthorized occupation of the land and had cultivated the same with cardamom on or before 8.1.1959. The question arises whether under the Cardamom Rules, a person can claim the benefit of the Rules at any point of time after encroaching upon the government land; or, whether in order to claim lease under the Cardamom Rules, he should be an encroacher before the commencement of the Rules, namely, 5.6.1961. To decide this question, it is necessary to consider the purpose and object of the Cardamom Rules. The Cardamom Rules are applicable only to certain Taluks. It applies only in respect of the lands fit for cardamom cultivation. A grant of lease under the Cardamom Rules could be made only in favour of a person who has cultivated the land with cardamom. It cannot be said that a person could encroach upon government land at any point of time, cultivate the land with cardamom and claim to get a lease or other benefit under the Cardamom Rules.