IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 WP(C).No. 16389 of 2003(A) --------------------------------------- PETITIONER(S): ----------------------- HINDUSTAN LEVER LIMITED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS FACTORY AT TATAPURAM,KOCHI- REPRESENTED BY ITS FACTORY MANAGER MR.ANURAG MEHROTTA. BY SRI.T.ANTHIARJUNA, SENIOR ADVOCATE SRI.JOSEPH MARKOSE, SENIOR ADVOCATE ADV.SRI.JOSEPH KODIANTHARA SRI.MITHUN MARKOS SMT.PRIYA MANJOORAN RESPONDENT(S): -------------------------- 1. TAHSILDAR, KANAYANNUR TALUK, TALUK OFFICE, KOCHI. 2. VILLAGE OFFICER, ERNAKULAM-VILLAGE, ERNAKULAM. 3. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. TATA HOUSING DEVELOPMENT COMPANY PROJECT OFFICE, TATAPURAM, ERNAKULAM. R1 TO R3 BY ADDL. ADVOCATE GENERAL.SRI. RENJITH THAMPAN R1 TO R3 BY GOVERNMENT PLEADER SRI.SANDESH RAJA R4 BY SRI.M.PATHROSE MATTHAI, SENIOR ADVOCATE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/9/2009, ALONG WITH WPC NO. 35086 OF 2008, AND CONNECTED CASES THE COURT ON 17/01/2011 DELIVERED THE FOLLOWING: sts WP(C)NO.16389/2003 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PATTA NO.59 A OF ERNAKULAM VILLAGE ISSUED IN THE YEAR 1930. P2 COPY OF THE SPECIAL NOTICE NO.1405 DT.31/10/02 ISSUED BY THE CORPORATION OF COCHIN. P3 COPY OF THE NOTICE NO.H4-9122/99 DT. 20/5/2003 ISSUED BY THE 1ST RESPONDENT. P4 COPY OF THE NOTICE DATED 20/5/2003 ISSUED BY THE 1ST RESPONDENT. P5 COPY OF THE PLAN SHOWING THODU PORTION OF THE EASTERN SIDE OF THE PETITIONER'S PROPERTY. P6 COPY OF THE ORDER NO.M.O.E5.2458/97 DT. 3/3/97 . P7 COPY OF THE NEWS PAPER REPORT WHICH APPEARED IN THE NEW INDIAN EXPRESS DATED 23/4/2003. P8 COPY OF THE G.O.MS.NO.158/71/RD DT.17/6/71. P9 COPY OF THE NOTICE NO.48721/L3/78/RD DT. 14/4/1980. RESPONDENT'S EXHIBITS; NIL /TRUE COPY/ P.A.TO.JUDGE sts THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).Nos.16389 OF 2003, 3360, 19346 & 35086 OF 2008 ------------------------------------------- Dated this the 17th day of January, 2011 JUDGMENT “C.R.” 1.The first three among the captioned matters are filed by the Hindustan Lever Ltd. – (Hindustan Unilever Ltd.), hereinafter, “HLL”, for short. According to it, by a scheme of amalgamation sanctioned by the High Court of Bombay and later confirmed by the Apex Court, Tata Oil Mills Company Ltd., for short, TOMCO, was taken over by it. 2.TOMCO was in possession of an item of land in Kanayannur Taluk of Ernakulam Village. With the passage of time, HLL claimed to be its owner by succession on the basis of the aforesaid scheme of amalgamation and proceeded to put that piece to use for the purpose of a housing scheme. Tata Housing Development Company Ltd. was involved in that process. It appears that there was hue and cry from some quarters as regards that. Apparently, certain allegations were WPC.16389/03 & con. cases 2 also raised to the effect that TOMCO and HLL are putting the land to such user as wouldn’t be permissible in terms of the transaction under which TOMCO came into possession of that land. Incidentally, there were also certain allegations that land in excess of that which was originally held by TOMCO, is also encroached upon by TOMCO and HLL. Allegations against TOMCO and HLL in this regard appear to have been brought to the notice of the Petition Committee of the Kerala Legislative Assembly. Stated to be acting on the instructions, advice or aegis of that committee, government officials initiated actions, allegedly, in violation of the laws or, allegedly, in failure to act in terms of the relevant statutory provisions. Those accused of such commissions and omissions included officers, allegedly with no jurisdiction, as also different statutory authorities having jurisdiction under the different provisions of laws relating to lands in Kerala and the registering authorities under the Registration Act. They initiated different actions by issuance of notices and also commenced refusing to accede to the request of HLL and WPC.16389/03 & con. cases 3 persons claiming under it to register documents and to record transactions in relation to parts of the aforesaid land. That situation led to the institution of WP(C) No.2445 of 2004, which was decided on 25th of August 2006. That was confirmed by the Division Bench in WA No.233 of 2007. It is stated that the said matter was taken before the Apex Court and there, it is clarified that the findings in the judgments of the High Court were rendered only for the purpose of holding that the authorities under the Registration Act did not act in conformity with the statutory jurisdictions under that legislation and the observations made by the High Court in those judgments cannot be treated as decisive as regards the title to property as claimed by HLL. 3.The pleadings in these writ petitions abundantly indicate that there is clear conflict and dispute on fundamental questions of facts which arise in relation to the holding of the land by TOMCO and HLL. While they stand to assert absolute title to the property in question, the Government and the revenue WPC.16389/03 & con. cases 4 authorities, as also, the Corporation of Kochi refute that, in as much as, what was granted to TOMCO was a lease for an industrial purpose, the terms of which, according to the Government, have been flouted. The project or proposal to put that property to use for housing, is away from the industrial purpose for which the lease was granted, contends the Government. The materials on record also do not show that the scheme of amalgamation between TOMCO and HLL, as stated to have been approved by the High Court of Bombay, was issued with the Government of Kerala on the party array and after having afforded it an opportunity of being heard. Whatever is its entitlement to be heard in relation to those proceedings; that may not be irrelevant, if what TOMCO got initially was only a lease and not such title which was left exclusively to the volition of TOMCO or its successor HLL to deal with. Any assertion by the Government and other statutory authorities that there is violation of the terms of the lease or the quality of the grant or transfer in favour of TOMCO has to be raised appropriately in lawful proceedings in WPC.16389/03 & con. cases 5 terms of the laws, since otherwise, neither TOMCO nor any person including HLL claiming under it, either on the basis of the amalgamation scheme or otherwise, would have the appropriate opportunity in accordance with law to meet any such plea or charge and protect their interests in terms of Articles 14, 19, 300 A and 301 of the Constitution, as also in terms of the statute laws that would govern such proceeding. This, in essence, is the rationale of this Court's view in WA No. 233 of 2007 and WP(C) No.2445 of 2004, from which that appeal arose, even if those judgments were to be read as not deciding inter-se any issue as to title to property. 4.With the aforesaid, I shall now deal with the first three among the captioned matters individually. 5.WP(C) No.16389/2003 : This writ petition was pending even when the aforesaid writ petition filed by HLL and the writ appeal that arose therefrom, were decided by this Court. Under challenge herein are two notices issued by the WPC.16389/03 & con. cases 6 Tahsildar, one requiring Tata Housing Development Company Ltd. to pull down a two-storey building within seven days and the other, to HLL, alleging that there is encroachment onto a water course and calling upon that company to vacate such premises within seven days. 6.While the writ petition proceeds on the basis that the impugned notices are without the authority of law and in violation of principles of natural justice and also unsustainable even on the fact situation, the contentions in defence, as extended through the counter affidavit on behalf of the third respondent, contain assertions on facts, however without pointing out any provision of law on the basis of which the Tahsildar could have issued the impugned notices. It is worthwhile to note that the writ petitioners point out that even if the exercise of authority is made with reference to the provisions of the Land Conservancy Act, it is the Collector and not the Tahsildar who is the competent authority, and still further that even if such provision is being invoked, there WPC.16389/03 & con. cases 7 cannot be any direction to vacate, except after giving a pre- decisional notice and opportunity of hearing under the provisions of that law. 7.As noticed above, the authority of the Tahsildar to issue the impugned notices is not demonstrated with reference to the statutory provisions. As held by this Court in WA No.233 of 2007, the petition committee of the State Legislature is not a statutory authority and the Tahsildar could not have carried out the impugned action on the instructions of that committee. Apart from the fact that the Tahsildar is not shown to be vested with any authority to do any such act in terms of the Land Conservancy Act, or otherwise, no such statutory authority could be exercised by the repository thereof on the prompting of another. This is an inexcusable component of justice in the realm of administrative laws. For these reasons, this writ petition is entitled to succeed to the extent of quashing the impugned Exts.P3 and P4 notices, however WPC.16389/03 & con. cases 8 without entering on to the merits of the rival contentions on facts and in law, touching other aspects. 8.WP(C) No.3360/2008 : This writ petition by HLL is filed challenging Ext.P15 issued by the District Collector calling upon HLL, through its officer, to appear with documents showing jenmom right (title) over the land referred to in the first paragraph of that communication stating that it has come to the notice of the Collector that the land mentioned therein were mutated in the name of HLL in the year 1995 without having sufficient documents in support of it. Though the second respondent Collector states in the counter affidavit that the writ petition is filed without any provocation, against the mere request for production of documents, the fact of the matter remains that no ground is stated in Ext.P15 as to any fact, material, or circumstance on the basis of which the Collector issued that notice stating that mutation was effected in the name of HLL without sufficient documents in support of it. Admittedly, mutation was effected in the name of HLL in WPC.16389/03 & con. cases 9 1995. Ext.P15 is issued in January 2008. The counter affidavit shows that the mutation in question was effected in relation to land which stood in the name of TOMCO. No provision of law authorising the Collector to call for documents as has been done, much less, the jurisdiction that is being invoked as regards any particular proceeding or action, is reflected on the face Ext.P15. If the action is attempted to be sustained on the basis of some provision of law, even if it be the Transfer of Registry Rules, the addressee of such a notice is entitled to know the power under which a particular authority and power is being exercised. It would be quite arbitrary on the face of Rule of law to resort to enquiries by merely calling for documents in relation to property, without disclosing the nature of the proceedings in relation to which such documents are called for, or indicating the power under which the production of the documents is sought for. Going by the counter affidavit, the Additional Tahsildar is stated to have addressed the Collector to the effect that the Village Officer effected mutation in 1995 in favour of HLL, without the WPC.16389/03 & con. cases 10 authority of law in as much as the Village Officer was incompetent to do so in terms of the Transfer of Registry Rules. It also appears from the counter affidavit that the respondents are of the view that the mutation effected in the name of HLL, in relation to properties which stood in the name of TOMCO, is impermissible. But, if one were to say so more than 12 years after the exercise was carried out, it would be wholly unreasonable, rolling into administrative perversity. If such action is initiated in the form of a rowing enquiry, without the executive ascertaining the facts for itself, with fair amount of certainty, that itself would be arbitrary. The dictate of the Constitution and the laws enjoins that when statute laws, including subordinate legislation, govern the field, recourse could be had only by expressing with fair amount of clarity, the ground on which the particular action is proposed and the provision of law being invoked. Of course, the mere misquoting of a provision of law may not be fatal in cases where, notwithstanding that, the person being proceeded against has been informed with fair amount of clarity, the quality and WPC.16389/03 & con. cases 11 content of the proposed proceedings. But, Ext.P15, not only does not disclose the provision of law or the power that is being invoked, it does not indicate the clear jurisdictional fact on which the action is commenced. Nor does it indicate any proposed interference with the rights of the parties. Under such circumstances, it cannot but be held that Ext.P15 is a vague and cryptic expression of a demand to produce documents. The power to require attendance and for production of documents is incidental to the power to decide matters in accordance with law. That cannot be exercised superfluously. It needs to be expressed with specificity. It cannot be a vague expression. The right to information as regards the reason for an adverse administrative decision resulting in civil consequences includes the right to prior information regarding the grounds on which such decision is proposed, unless of course, this process is excluded by clear statutory provision. It cannot be exercised in the manner in which it has been done through Ext.P15. The same is, therefore, unreasonable and arbitrary, infracting Article 14 of WPC.16389/03 & con. cases 12 the Constitution and is hence liable to be quashed, however without entering on to the merits of the rival contentions on facts and in law, touching other aspects. It is also clarified that the question whether the Collector has the jurisdiction to invoke any power under Rule 18 of the Transfer of Registry Rules is also left open. 9.WP(C) No.19346/2008 : In this writ petition, HLL challenges Ext.P18 notice dated 10.6.2008, issued to it by the District Collector. Following the facts and sequence of events noticed above, the impugned Ext.P18 notice is issued by the District Collector on the premise that the land in question was leased out to TOMCO for an industrial purpose, however that the said land is being put to use for purposes other than that for which the lease was granted and therefore, the said parcel is proposed to be resumed. Though the said notice says that the Government have the absolute right to resume the property and that it is to be resumed by the Government, the said notice does not reflect any Government decision in that regard. The WPC.16389/03 & con. cases 13 said statement in Ext.P2 notice merely indicates the reason why that notice was issued. Nothing more. It does not contain any concluded decision by the Government in relation to the exercise of statutory power that may be exercised by the competent statutory authority for resumption of government lands, including on the ground that the conditions or purpose of lease is violated by the lessee. Therefore, it cannot be held that the impugned Ext.P18 is, in any manner, vague. It does communicate the proposed action and the ground therefor, though it does not refer to any provision of primary or subordinate legislations. 10.In opposition to the impugned Ext.P18, a specific ground raised in the writ petition is that the impugned action is an attempt to nullify the amalgamation order between TOMCO and HLL, as granted by the High Court of Bombay and affirmed by the Apex Court. But, as already noticed above, the State or Government of Kerala was not a party to those proceedings and therefore, it would be against the interest of WPC.16389/03 & con. cases 14 the State of Kerala if it were to be tied down to that amalgamation order, at least in so far as the rights, if any, that it may have, in relation to the land which was originally given to TOMCO. There is serious dispute on facts and law, as regards the quality of that entrustment. While HLL and TOMCO would assert that what TOMCO had was absolute title following the land acquisition, the Government stands to say that it is a Verumpattom lease. This is an issue which may be germane for consideration in any proceeding that would be taken by the statutory authorities for resumption of land since it would have a bearing on the core issue, as to whether any right survives in favour of the Government after the entrustment of the lands with TOMCO. That does not, however, give rise to an undisputed jurisdictional fact on the basis of which the visitorial jurisdiction of the writ court could be exercised under Article 226 of the Constitution. 11.The judgments inter-partis, as referred to above, do not decide any issue of title as between the parties. In fact, they WPC.16389/03 & con. cases 15 leave open all such issues. Of course, the finality attained by the Taluk Land Board proceedings as against TOMCO, in proceedings by revision before this Court under the provisions of the KLR Act, would stand. It is also an argument of the petitioners that the right of TOMCO, as titleholder and not merely as a lessee, cannot now be countered by the Government in as much as the ceiling proceedings under the KLR Act is on the basis of title and not lease hold right. In this context, it needs to be remembered that disputed questions as to title, including the quality of title based on possession, are not matters that could be adjudicated and decided in writ jurisdiction. The nature of materials offered for consideration of this Court includes revenue documents of different nature. There also appears to be conflict in the documents available with the petitioners from different authorities. There are documents issued by the Corporation. While petitioners rely on those documents, the respondents stand to criticise them on the basis of the statute laws including the Town Planning Act, the Municipality Act, etc. Though submissions are made by WPC.16389/03 & con. cases 16 either side, with reference to such materials and also relying on precedents, it is not safe that the writ court decides such issues. They have to be left for consideration and decision at the hands of statutory authorities, if any, enjoined to do so. Otherwise, such issues have to go for adjudication before the civil courts. 12.For the aforesaid reasons, there is no jurisdictional issue on the basis of which the impugned Ext.P18 notice is to be set aside. Having held in WP(C) Nos.16389/2003 and 3360/2008 that the proceedings initiated by the Tahsildar and an earlier notice issued by the District Collector are liable to be interfered with, the proceedings impugned in this writ petition has necessarily to go on, since the issues have to attain finality, in accordance with law. It would not be in the interest of the State, that proceeding on the basis of Ext.P18 is not permitted to go to its logical end. Equally, it can be perceived that it is so as regards the petitioners also. Under such circumstances, all that is required is to affirm Ext.P18 without WPC.16389/03 & con. cases 17 entering on the merits of the statements of facts made therein and also without expressing anything on the maintainability of those proceedings, which issue can also be raised by the petitioners before the District Collector, if so advised. That proceeding has to go to its logical end in a time bound manner. 13.Now, the fourth matter; WP(C) No.35086/2008: HLL executed a sale deed in favour of the writ petitioner regarding Flat No. A-21, stated to be with parking space and undivided indivisible share in the land on which the said apartment complex stands. According to the writ petitioner, that document was presented for registration, however that, the Sub Registrar issued a communication to the effect that the Revenue Divisional Officer has intimated about the continuation of proceedings by Taluk Land Board. On ground that there is unlawful refusal to register that document, the writ petitioner seeks relief. The Sub Registrar has filed a statement to the effect that he never denied the registration of the document, but only sought for a short time to obtain WPC.16389/03 & con. cases 18 clarification in the matter. He says that, though sought for from his office, the Taluk Land Board has not issued any clarification as sought for and that he had acted only in good faith. He further says that the document was not presented for registration. Under such circumstances, all that is required is that the Sub Registrar shall receive any document that may be presented in terms of the laws in relation to the apartment in question and register that document in accordance with law. Having regard to the orders being issued in the connected matters, it is clarified that this direction to register the document does not deal with any question of title, either of TOMCO or of HLL since registration, by itself, does not alter the quality of title. 14.In the result : i. WP(C) No.16389/2003 is allowed quashing the impugned Exts.P3 and P4 notices, however without entering on the merits of the rival contentions on facts and in law, touching other aspects. WPC.16389/03 & con. cases 19 ii. WP(C) No.3360/2008 is allowed quashing the impugned Ext.P15 notice, however without entering on the merits of the rival contentions on facts and in law, touching other aspects. It is also clarified that the question whether the District Collector has the jurisdiction to invoke any power under Rule 18 of the Transfer of Registry Rules is also left open. iii. WP(C) No.19346/2008 is dismissed holding that the impugned Ext.P18 is not liable to be interfered with on any jurisdictional issue, however, without entering on the merits of the statements of facts made therein and also without expressing anything on the maintainability of those proceedings, which issue can also be raised by the petitioners before the District Collector, if so advised. The District Collector will afford the petitioners appropriate opportunity for hearing and will conclude those proceedings without delay, at any rate, within a WPC.16389/03 & con. cases 20 period of six months from the date of receipt of a copy of this judgment. iv. WP(C) No.35086/2008 is ordered directing that the Sub Registrar shall receive any document that may be presented in terms of the laws, in relation to the apartment referred to in this writ petition and register that document in accordance with law, if it is in order in terms of the laws relating to the registration of sale deeds of apartments and the attendant rights. That shall be done within a period of two weeks from proper presentation of the said document. v. The parties to these writ petitions shall bear their respective costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.