IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 OP.No. 16210 of 1997(D) ----------------------- PETITIONER: ----------------- FR. GEORGE PULIKUTHIYIL, CMI SECRETARY, 'JANANEETHI', KESS BHAVAN, NAIKANAL, THRISSUR. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY (REVENUE), SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, CIVIL STATION, KOZHIKODE. 3. THE TAHASILDAR, TALUK OFFICE, KOZHIKODE. 4. THE SUPERINTENDENT OF POLICE (RURAL), BADAGARA, KOZHIKODE. 5. THE ADDL. DEPUTY INSPECTOR GENERAL OF POLICE, CRPF, CENTRAL RESERVE POLICE FORCE, GROUP CENTRE, PALLIPURAM, THIRUVANANTHAPURAM. 6. SHRI. A. KANARAN, M.L.A., NADAPURAM, KOZHIKODE DISTRICT. ADDL. R7 IMPLEADED. 7. DR. BABU OOMMEN THOMAS, CIRCUIT HOUSE, THANA, KANNUR 670 012. ADDL. R7 IMPLEADED AS PER ORDER IN I.A.17274/2005 DATED 1.6.2006. R1 TO R5 BY ADVOCATE GENERAL SRI. C.P. SUDHAKARA PRASAD. SR.GOVERNMENT PLEADER SRI. D. ANIL KUMAR. DR.BABU OOMMEN THOMAS(PARTY-IN-PERSON) FOR ADDL.R7 ADV. SRI. AJITH KRISHNAN, ADDL.CGSC THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON 17/10/2008 DELIVERED THE FOLLOWING: O.P.16210/1997. APPENDIX PETITIONER'S EXTS: EXT. P1 : TRUE COPY OF THE JUDGMENT DTD. 5.3.97 IN O.P. NO.19877/96. EXT. P2 : TRUE COPY OF THE DEMAND NOTICE DTD. 28.3.1989. EXT. P3 : TRUE COPY OF THE PROCEEDINGS OF LAND BOARD, KERALA NO.LBB 8-58532/76 DTD. 16.9.76. EXT. P4 : TRUE COPY OF THE ORDER NO.G.O.(MS) 408/95/RD DTD. 19.8.95. EXT. P5 : TRUE COPY OF THE NEWS REPORT APPEARED IN INDIAN EXPRESS DAILY DTD. 29.11.95. EXT. P6 : TRUE COPY OF THE NEWS REPORT APPEARED IN INDIAN EXPRESS DAILY DTD. 22.12.1995. EXT. P7 : TRUE COPY OF THE AFFIDAVIT FILED BY THE 1ST PETITIONER IN O.P.NO.19328/95 DTD. 29.12.1995. EXT. P8 : TRUE COPY OF THE ORDER G.O.(MS) 224/97/RD DTD. 31.3.1997. RESPONDENTS EXTS: EXT. R7(a) : TRUE COPY OF O.P. NO.19148/97-D WITH 16 ANNEXURES. EXT. R7(b) : TRUE COPY OF ORDER IN O.P. 19148/97 OF THIS HON'BLE COURT. EXT. 7(c) : TRUE COPY OF ORDER IN O.P. 4023/96-D OF THIS HON'BLE COURT. EXT. R7(d) : TRUE COPY OF INTERIM ORDER PASSED IN C.M.P. NO.7083/96 IN O.P. 4023/96. EXT. R7(e) : TRUE COPY OF ORDER IN O.P. 13326/96. EXT. R7(f) : TRUE COPY OF ORDER IN W.A. 2634/98. EXT. R7(g) : TRUE COPY OF ORDER IN O.P. 14320/95 OF THIS HON'BLE COURT. EXT. R7(h) : TRUE COPY OF ORDER IN W.A.13/96 B OF THIS HON'BLE COURT. H.L.DATTU, C.J. & K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P. No. 16210 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of October, 2008 JUDGMENT K.M.JOSEPH, J. Petitioner claims to be the Secretary of a Society, which is said to conduct Seminars, legal awareness programmes, legal education, out of court settlement of disputes etc., and its main object is to make the people aware of civil rights. The Original Petition is filed purporting to be in public interest. 2. The case of the petitioner in brief is as follows: Petitioner approached this court by filing O.P.19877 of 1996 for evicting encroachers from Government land set apart for the setting up of a CRPF Camp and a battalion of Rapid Action Force. Ext.P1 is the judgment therein. By Ext.P1 judgment dated 5.3.1997 a learned Single Judge of this court taking note of the contention that even though police picket was put up, it was admitted in the statement that there are encroachments and the Government is not taking effective steps and that this is a sorry state of affairs and earlier encroachers have already been evicted and subsequently a mass trespass took place and O.P.16210/1997. 2 those occupants are now put up in the land and further referring to the further statement that they are taking effective steps and criminal proceedings are being taken against the encroachers and they are implementing the directions in W.A. 13 of 1996, it was ordered that the Government should see that the encroachers are ousted from the Government land. It is further case of the petitioner that by order dated 10.4.1997 in C.M.P. No.11937 of 1997 in O.P. No.19877 of 1996 this court had directed the second respondent to comply with the directions in the judgment on or before 30.6.1997. However, by the impugned order, namely, Ext.P8, the earlier order transferring the land to the Agriculture Department and to the CRPF were cancelled. It is stated to be issued with malafide intention. 3. Proceedings were initiated by the Taluk Board against M/s. Malabar Produce and Rubber Company Limited (hereinafter referred to as 'the Company') under the Land Reforms Act. An extent of 126.01 and half acres of land was directed to be surrendered. The Company surrendered the surplus land. Third respondent took possession of the land on 7.4.1989. By Ext.P3, the Secretary, Land Board reserved for public purpose an extent of 185 acres for O.P.16210/1997. 3 establishing a progeny orchard. Subsequently, by Ext.P4 order dated 19.8.1995 Government sanctioned transfer of 96.5 acres of land from the surplus land available in R.S. No.2,86/1 and 86/2 of Raroth Village, Kozhikode to the Central Reserve Police Force for accommodating the Rapid Action Force Battalion sanctioned for the Kerala State. It is stated that the said land came to be encroached by a group of persons, who belong to different political parties including the ruling party. The encroachment commenced during the period preceding the General Elections, 1996 and it is being carried on massively with the aid and connivance of respondents 1 to 6. It is the case of the petitioner that Rule 32 of Land Reforms (Ceiling) Rules prohibits any kind of assignment of land when it is reserved for any public purpose. The second respondent is stated to be the custodian of surplus land and he is duty bound to preserve and protect the Government land. Valuable trees are cut and removed with the connivance of revenue and forest officers. Petitioner relies on Exts.P5 and P6, which are copies of news reports in the Indian Express dated 29.11.1995 and 22.12.1995. Ext.P7 is an affidavit filed by the first petitioner in O.P. No. 19328 of 1995. That was a writ petition filed earlier against encroachment. However, O.P.16210/1997. 4 Ext.P7 affidavit is produced to show that though an interim order has been passed in the writ petition against the encroachment, the petitioners therein were threatened from different corners and they decided not to prosecute the petition. It was while so that Ext.P8 order came to be passed. Ext.P8 order is dated 31.3.1997. Therein, it is inter alia stated as follows: “Government find that it is necessary to cancel the orders issued in G.O.(Rt)695/90/RD dated 12.3.90 and G.O.(MS) 408/95/FD dated 19.8.95 transferring the said surplus land to Agriculture Department and CRPF respectively. Government are therefore pleased to order that G.O.(Rt) 695/90/RD dated 12.3.90 and G.O.(MS) 408/95/RD dated 19.8.95 transferring the surplus land in Thamarassery Panchayat of Raroth Village, Kozhikode to Agriculture Department and CRPF respectively are hereby cancelled.” 4. The prayers in the Original Petition are to quash Ext.P8 and to restrain State of Kerala from implementing Ext.P8 and to protect the fundamental rights of the citizens. O.P.16210/1997. 5 5. We heard learned Senior counsel for the petitioner Sri.K.Ramakumar and the learned Advocate General. 6. Sri.K. Ramakumar placed reliance on the decision of the Apex Court reported in M.C. Mehta v. Union of India ((2006) 7 SCC 456. He also relied on the decision of the Apex Court reported in Cauvery Water Disputes Tribunal's Case (AIR 1992 SC 522). 7. In Cauvery Water Disputes Tribunal's Case, the Apex Court pronounced the Karnataka Cauvery Basin Irrigation Protection Ordinance as unconstitutional. The court took the view that the Ordinance had the effect of nullifying the order passed by the Tribunal and it is not open to the legislature to make inroad into the independence of the body discharging judicial functions. In M.C.Mehta's Case also the Apex Court frowned upon the attempt to dilute the efficacy of the orders passed by the court. 8. In this case there is no doubt that the lands in question are lands which were vested with the Government. Section 96 of the Kerala Land Reforms Act provides for distribution of the land among the categories of persons, who are mentioned therein. Government has made the Ceiling Rules also to facilitate the distribution of the lands. O.P.16210/1997. 6 Under Section 96 of the Kerala Land Reforms Act, it is open to the Land Board to reserve any land for any public purpose. Obviously, such lands, which are reserved for public purpose by the Land Board cannot be subject matter of assignment. This is clear from Rule 32 of the Land Reforms (Ceiling) Rules. 9. According to the petitioner, there is no reason given in Ext.P8 for cancelling the earlier orders. It is also the case of the petitioner that Ext.P8 constitute an attempt to overreach the powers of this court. 10. Learned Advocate General argued that it is within the powers of the Government to cancel the orders having regard to the facts present. 11. In Ext.P8 reference is made to Government Order dated 12.3.1990. That was an order apparently implementing Ext.P3 order and an extent of 110.014 acres of surplus land, reserved for public purpose was ordered to be allotted to Agriculture Department. However it is stated that the Department did not take possession of the land. Thereafter reference is made to the requisition by the CRPF O.P.16210/1997. 7 authorities for accommodating a battalion of the Rapid Action Force. It is thereafter that reference is made to the letter dated 13.12.1995 that the land is occupied by encroachers and the land transfer is not possible without evicting the encroachers and requiring a huge police force. Reference is made to the further direction in O.P.4023 of 1996 to take action to evict the encroachers. Further, reference is made to the judgment in O.P.1703 of 1996, wherein the court had inter alia ordered that the encroachment is to be averted and if the Government does not want the land for the purpose, it shall be assigned to the landless persons in terms of the Land Reforms Act or Land Assignment Act, without giving any weightage to the encroachers. Further, reference is also made to the interim order in O.P.13326 of 1996 not to assign the lands. Thereafter stating that it is necessary to cancel the orders dated 12.3.1990 and 19.8.1995, the Government cancelled the same. 12. In Ext.P4, no doubt reference is made in paragraph 2, to the letter read as second paper. Thereunder it would appear that the Land Board has suggested to set apart the land for public purpose so as to transfer it to the Ministry of Home Affairs. O.P.16210/1997. 8 13. Ext.P8 is essentially an administrative order. We do not think that it may be open to the petitioner to challenge the validity of Ext.P8 for the reason that reasons are not stated in Ext.P8. Undoubtedly, every action of the State must be fair. In this case, obviously the State felt that on the one hand Agriculture Department did not take over the land pursuant to the order earmarking it to the Agriculture Department, and on the other hand it had a problem of removing encroachers. It embodies a policy decision to cancel the orders. At any rate proceeding on the basis that there is a legal hurdle of the power of the Government in the matter in view of Section 96 (1A), we must pose ourselves to the question when we are finally disposing of the case in 2008, whether we should still hold the Government to the orders of 1990 and 1995 allotting the lands to the Agriculture Department and to CRPF respectively. The Advocate General stands by Ext.P8. If the Government does not need the land for CRPF for the purpose of accommodating Rapid Action Force, which is essentially a matter of exigency decided on the ground reality present at the area, we do not think that we should overturn such a decision in the purported exercise of power under public interest litigation. O.P.16210/1997. 9 Having regard to the totality of facts, at this distance of time, no relief need be granted to the petitioner and the writ petition is dismissed. Consequently C.M.P. No.29010 of 1997 is dismissed. H.L.DATTU, CHIEF JUSTICE K.M. JOSEPH, JUDGE sb O.P.16210/1997. 10 H.L. DATTU, C.J. & K.M.JOSEPH, J. --------------------------------- O.P. No. 16210 OF 1997 --------------------------------- JUDGEMNT 17.10.2008.