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 WP(C).No. 27272 of 2006(S) -------------------------- PETITIONER: ----------------- DR.BABU OOMEN THOMAS, AGED 54 YEARS, S/O.SRI.M.O.THOMAS, "VILA HERITAGE", CHIRAKKAL, KANNUR- 670 011. BY ADV. DR.BABU OOMMEN THOMAS (PARTY-IN-PERSON) SRI.M.S.NARAYANAN (AMICUS CURIAE) RESPONDENT(S): ----------------------- 1. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, SECRETARIT, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, CIVIL STATION, KOZHIKODE. ADVOCATE GENERAL SRI. C.P. SUDHAKARA PRASAD. SR. GOVT.PLEADER SRI. D. ANIL KUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON 17/10/2008 DELIVERED THE FOLLOWING: W.P.C. 27272/2006. APPENDIX PETITIONER'S EXTS: EXT. P1 : TRUE COPY OF FORM NO.9 DEMAND NOTICE FOR SURRENDER OF LAND TLB(K) 19/73. EXT. P2 : TRUE COPY OF NEWS REPORT IN INDIAN EXPRESS. EXT. P3 : TRUE COPY OF NEWS REPORT IN INDIAN EXPRESS. EXT. P4 : TRUE COPY OF JUDGMENT IN O.P. NO.14320/1995-D FILED BY A.V.BHASKARAN & 100 OTHERS. EXT. P5: TRUE COPY OF THE JUDGMENT IN W.A. NO.13/96-B FILED BY A.V. BHASKARAN & 100 OTHERS. EXT. P6 : TRUE COPY OF C.M.P. NO.97/1996 IN O.P. NO.19328/1996(A) FILED BY V.K. HUSSAINKUTTY & 3 OTHERS. EXT. P7 : TRUE COPY OF O.P. NO.4023/96-D WITH 3 ANNEXURES FILED BY DR. B.O.THOMAS AND INTERIM ORDER DATED 1.4.1996 IS C.M.P.7083/96 OM O.P. 4023/96. EXT. P8 : TRUE COPY OF JUDGMENT IN O.P. 13326/96. EXT. P9 : TRUE COPY OF JUDGMENT IN W.A. 2634/1998. EXT. P10 : TRUE COPY OF JUDGMENT IN O.P. NO.19877/1996 FILED BY M/S. JANANEETHIL. EXT. P11 : TRUE COPY OF JUDGMENT IN O.P. 3366/2002 A FILED BY C.K. NANU , M.L.A. & 10 OTHERS. EXT. P12 : TRUE COPY OF THE AFFIDAVIT OF 1ST RESPONDENT STATE OF KERALA IN CCC 1189/2000 (SUO MOTU) EXT. P13 : TRUE COPY OF ORDER IN C.C. C.1189/2000 (SUO MOTU) BY HON'BLE C.J. V.K. BALI & HON. J.P.R. RAMAN. EXT. P14 : TRUE COPY OF ORDINANCE NO.41 OF 2006, THE KERALA TEMPORARY STAY OF EVICTION PROCEEDINGS, 2006. EXT. P14A : TRUE COPY OF THE KERALA TEMPORARY STAY OF EVICTION PROCEEDINGS ORDINANCE NO.52 OF 2006. EXT. P14 B : TRUE COPY IF THE KERALA TEMPORARY STAY OF EVICTION PROCEEDIGNS ORDINANCE NO.14 OF 2007. EXT. P14 C : TRUE COPY OF THE KERALA TEMPORARY STAY OF EVICTION PROCEEDINGS ORDINANCE NO.40 OF 2007. EXT. P14 D : TRUE COPY OF THE KERALA TEMPORARY STAY OF EVICTION PROCEEDINGS ORDINANCE NO ACT, 2007 (ACT NO.14 OF 2007). EXT. P14D (a) : TRUE ENGLISH TRANSLATION OF EXT. P14D. EXT. P15 : NEWS REPORT IN INDIAN EXPRESS. EXT. P16 : TRUE COPY OF NEWS REPORT IN INDIAN EXPRESS. EXT. P17 : TRUE COPY OF NEWS REPORT IN INDIAN EXPRESS. EXT. P18 : TRUE COPY OF NEWS REPORT IN CHANDRIKA DAILY. EXT. P19 : TRUE COPY OF PROCEEDINGS OF LAND BOARD, TRIVANDRUM. EXT. P20 : TRUE COPY OF PROCEEDINGS OF DISTRICT COLLECTOR, KOZHIKODE. EXT. P21 : TRUE COPY OF GOVERNMENT ORDER NO.4976/2006 REVENUE. EXT. P21(a) : ENGLISH TRRANSLATION OF EXT. P21. EXT. P22 : TRUE COPY OF REPLY RECEIVED FROM LAND BOARD, TRIVANDRUM WITH ENGLISH TRANSLATION AND APPLICATION OF PETITIONER. EXT. P23 : TRUE COPY OF THE INTERIM ORDER IN C.M.P. NO.29010/97 IN O.P. NO.16210/1997. EXT. P24 : TRUE COPY OF COMBINED JUDGMENT IN W.A. NO.1905/1996 AND W.A. NO. 476/1997. EXT. P25 : TRUE COPY OF COUNTER AFFIDAVIT OF 1ST RESPONDENT IN O.P. NO.3366/2002. EXT. P26 : TRUE COPY OF JUDGMENT IN O.P. NO.18111/1997. H.L. DATTU, C.J. & K.M. JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.27272 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of October, 2008. JUDGMENT K.M.Joseph, J. Petitioner in this Writ Petition (hereinafter referred to as Dr.Babu), seeks a declaration that the Ordinance issued as “The Kerala Temporary Stay of Eviction Proceedings Ordinance, 2006” (Ordinance No. 41 of 2006) and the Kerala Temporary Stay of Eviction Proceedings Ordinance, 2006 (Ordinance No.52 of 2006) and the Kerala Temporary Stay of Eviction Proceedings Ordinance, 2007 (Ordinance No.14 of 2007) and the Kerala Temporary Stay of Eviction Proceedings Ordinance, 2007 (Ordinance No.40 of 2007) and the Kerala Temporary Stay of Eviction Proceedings Act, 2007 (Act No.14 of 2007) are invalid, void and non-est and ultra vires of the powers of the 1st respondent by issuing a writ of certiorari or other appropriate writ, direction or order directing the respondents to stay all directions and directives that are being issued by the first respondent and the second respondent to conduct survey and identification of the lands in the possession of various persons as a prelude to distribution of the lands to the unauthorised occupants and to stay the distribution of the lands detailed in the schedule to Ext.P14, Ext.P14A, Ext.P14B, Ext.P14C Oridinances and Ext.P14D Act to any person who is found to be in possession subsequent to 5.6.1995. W.P.C.27272/2006. 2 2. By Ext.P1 order the Taluk Land Board, Kozhikode directed M/s.Malabar Produce and Rubber Company Limited, (hereinafter referred to as the Company), to surrender an extent of 126.01 and half acres of land. The Collector took possession of the same. Dr.Babu is a shareholder of the said Company, which was dispossessed of the land. According to the petitioner, the land came to be occupied by trespassers after dispossession of the Company. It is stated that the ruling party workers brought down hundreds of their supporters from other Districts with an intention to forcibly occupy the land. Exts.P2 and P3 are newspaper reports. Nearly hundred persons among the encroachers filed writ petition seeking that they may not be evicted and that the land could not be assigned to any other body or organization. The writ petition was dismissed. Writ Appeal filed also came to be dismissed. O.P. No.19328 of 1995 was filed as a Public Interest Litigation by some other persons seeking a direction to evict the encroachers. An interim order was passed directing eviction of the encroachers. It is the case of the petitioner that the petitioners in the Original Petition were compelled to withdraw the Original Petition. Ext.P7 is a copy of O.P.4023 of 1996 filed by the petitioner, that came to be dismissed on account of non-representation. It is stated that the petitioner filed O.P. 13326 of 1996 culminating in Ext.P8 judgment. By Ext.P8 judgment, a learned Single Judge of this court directed the Government to take effective steps to remove the encroachment. This was done keeping W.P.C.27272/2006. 3 in view the order passed by this court in O.P. 19877 of 1996 and the decision in W.A. 13 of 1996 and also paragraphs 5 and 6 of the statement of the Government in O.P. 19877 of 1996. Government was also directed to take urgent steps for allotting the land for public purposes as intended as expeditiously as possible so as to prevent further encroachment. W.A. 2634 of 1998 filed by respondents 1 to 4 came to be dismissed by Ext.P9 judgment. Ext.P10 is the judgment in O.P. 19877 of 1996, which was allowed and the court directed that the Government should see that the encroachers are ousted from Government land. Another writ petition was filed by three MLAs and leaders of the encroachers as O.P.3366 of 2002 seeking assignment of the land and to refrain from evicting the occupants. The said original petition came to be dismissed by Ext.P11 judgment dated 8.2.2006. Thereafter this court initiated suo motu contempt of court proceedings for non-compliance of the judgment. Ext.P13 would show that the court granted further time and directed the listing of the case on 31.7.2006. While so, Ext.P14 Ordinance came to be promulgated on 26.7.2006 providing in Section 2 thereof for stay of eviction of persons in occupation of the land described in the schedule for a period of one year. Still later Ext.P14(a) Ordinance dated 30.10.2006 came to be promulgated. Still later the first respondent enacted Kerala Temporary Stay of Eviction Proceedings Act, 2007, Act 14 of 2007 on 27.7.2007. By the said Act, stay of eviction is provided for persons in occupation for a period of two years. W.P.C.27272/2006. 4 This Act was deemed to have come into force on 26.7.2006. Thus the petitioner challenges the constitutional validity of the legislation providing for stay of eviction of persons in the teeth of the statements filed and the judgment delivered by this court as already mentioned. 3. In the counter affidavit it is stated that as far as the Ordinance is concerned, the challenge thereto will not lie as the Ordinance has ceased to operate. It is further stated that initially all the persons were removed on 5.6.1995. Despite the police picket certain persons entered and occupied the land again. By judgment in O.P.1703 of 1996 the encroachers were directed to be evicted. There was such a direction in O.P.19877 of 1996 also. However, in O.P.3366 of 2002 it was ordered that “till the court heard the O.P and the contempt petition the State authorities shall stay their hands.” The writ petition itself came to be disposed of with the observation that if the petitioners have got a case that they are entitled to the assignment of the land encroached upon, it is for them to approach the appropriate authorities in accordance with law and seek their remedies, if their applications are rejected. It is stated that on 23.6.2006 persons in possession submitted 505 applications for assignment of the land and they have stated that formal applications were submitted for assignment of the land during 1997 when the applications were called for in accordance with the provisions of the Kerala Land Reforms Act and the Rules, and that in terms of O.P.3366 of 2002 they have again requested to consider their W.P.C.27272/2006. 5 applications. It is stated that earnest efforts are being made by the respondents to evict the encroachers, but the authorities were unable to deal with them due to the tense situation brought about by the mass resistance offered by them, and use of force may be likely to result in huge loss, damage and injury. It was in the circumstances, considering all aspects the Government had to consider the genuineness of the claims of such unauthorised occupants, the Ordinance was enacted, it is stated. The Ordinance was promulgated only to provide for a situation attendant with grave law and order situation that may arise if mass eviction is carried out. If their claims were found to be genuine, it would result in great hardship, if in the meantime Government is to evict them using force, it is stated. It is further stated that as per order dated 9.8.1995, 98.50 acres of the surplus land which was surrendered to the Government was proposed to be transferred to the Central Reserve Force for setting up a training complex. However, the above proposal was subsequently cancelled considering the fact that a good number of persons in occupation of the land are landless poor labourers eligible for assignment of excess land under Section 96 of the Kerala Land Reforms Act. The Ordinance is stated to be legal and within the powers. Petitioner has no locus standi. Petitioner is only a shareholder, it is stated. The decisions of this court are not circumvented by the Ordinance, it is contended. 4. We heard Sri. M.S.Narayanan, whom we had appointed as W.P.C.27272/2006. 6 Amicus Curie, and also the learned Advocate General. 5. It is submitted on behalf of the petitioner that both the Ordinance and the Act are in brazen violation of the statements filed on behalf of the State and the declaration contained in the judgments passed by this court and constitutes an onslaught on the rule of law. It is contended that by Ext.P4 judgment in W.P.(C) 14320 of 1995 the learned Single Judge had rejected the claim of nearly hundred encroachers. The court took note of the situation and after considering the provisions contained in the Kerala Land Reforms Act took the view that the encroachers cannot claim any right as against the persons waiting in the queue. In other words, the persons who broke the law should not be given any undue advantage was the reasoning. Thereafter this court by the judgments, which we have already adverted to had categorically directed eviction of the encroachers. It is pointed out that a duty was cast to protect the land which came to be vested with the State. It is further pointed out that under Section 96 of the Kerala Land Reforms Act the land has been reserved for a public purpose. Section 96 of the Act in its material part reads as follows: “96. Assignment of lands by Land Board.- (1) The Land Board shall assign on registry subject to such conditions and restrictions as may be prescribed, the lands vested in the Government under Section 86 or Section 87, as specified below: (i) the lands in which there are kudikidappukars shall be assigned to such kudikidappukars; W.P.C.27272/2006. 7 (ii) the remaining lands shall be assigned to- (a) landless agricultural labourers; and (b) smallholders and other landlords who are not entitled to resume any land: Provided that eighty-seven and a half per cent of the area of the lands referred to in clause (ii) available for assignment in a taluk shall be assigned to landless agricultural labourers of which one-half shall be assigned to landless agricultural labourers belonging to the [Scheduled Castes, the Scheduled Tribes, and such other socially and economically backward classes of citizens as may be specified in this behalf by the Government by notification in the Gazette.] (1A) Notwithstanding anything contained in sub-section (1), the Land Board may, if it considers that any land vested in the Government under Section 86 or Section 87 is required for any public purpose, reserve such land for such purpose” In the decision reported in Indra Sawhney v. Union of India (AIR 2000 SC 498) the court was dealing with the issue relating to identification of creamy layer among the backward classes in the State of Kerala and the implementation of law declared and directions issued in Indra Sawhney v. Union of India (AIR 1993 SC 477). The Kerala legislature enacted Kerala State Backward Classes (Reservation of appointments or Posts in Services) Act, 1995. Section 3 of the Act provided that there are no socially advanced sections in the backward classes, who have acquired capacity to compete with the forward classes. The Nair Service Society filed a writ petition seeking declaration that the provisions of the Act were unconstitutional. In W.P.C.27272/2006. 8 the course of the judgment the court referred to Section 6 of the Act. One of the issues which was raised was can the declaration of law regarding creamy layer in the context of Articles 14 and 16 in Indra Sawhney's case and in other rulings be undone by the Kerala Legislature by a retrospective validating law containing a statutory declaration whose effect is to say that no creamy layer exists in the State of Kerala? The court proceeded to hold that the creamy layer principle laid down in Indra Sawhney' case cannot be ignored as was done by Section 6 of the Act. The court also held as follows: “If under the guise of elimination of the 'creamy layer', the legislature makes a law which is not indeed a true elimination but is seen by the court to be a mere cloak, then the court will necessarily strike down such a law as violative of principle of separation of powers and of Arts. 14, 16(1) and 16 (4).” Section 6 contained a non obstante clause and sought to provide that notwithstanding the judgment of any court interalia, the reservation of appointments pursuant to Rules 14 to 17 of Part II of the Kerala State And Subordinate Services Rules, 1958 was to be deemed to be validly made as if the Act in 1995, which was challenged was in force at all material times when such reservations have been made. In the course of its judgment the court held as follows: “We may again point out that as a matter of law, it is clear that six out of nine Judges in Indra Sawhney made W.P.C.27272/2006. 9 a judicial declaration as stated under Point 1, as to the class of persons who would belong to the creamy layer. This declaration of law made by this court is clearly applicable to the State of Kerala also. The Kerala Legislature cannot, in our opinion refuse to accept this declaration of law nor can it declare anything to the contrary.” The court further held as follows: “In the judgment of six learned Judges in Indra Sawhney as stated earlier, there is a specific declaration of law that the children of IAS, IPS and other All India Services in the Backward Classes are creamy layer and this is true “without further inquiry.” These persons are to be deemed, in law and, in fact, to have reached such a level of social advancement that they cease to belong to the Backward Class. The judgment also refers to a classification of “affluent” sections identified by way of income or property holding. x x x x x x x x x x x x “The non obstante clause in S.4 too cannot come to the rescue of the State. As already stated, the said clause cannot override the judgments of this Court based on Arts.14, 16(1) and 16(4) if the defect is not removed by the legislation. Neither Parliament nor the State Legislature can make any law to continue reservation to the creamy layer inasmuch as the above judgments of this Court are based on Arts. 14 and 16(1) of the Constitution of India, an no law can obviously be made to override the provisions of Arts.14 and 16(1). W.P.C.27272/2006. 10 Thus, for the aforesaid reasons, S.4 of the Act along with the non obstante clause is declared unconstitutional and violative of the judgments of this Court and also violative of Arts.14, 16(1) and 16(4) of the Constitution of India. We then come to S.6 of the Act which deals with retrospective validation. This section again starts with a non obstante clause. Obviously, the Kerala Legislature is having Indra Sawhney (AIR 1993 SC 477) and Ashok Kumar Thakur (AIR 1996 SC 75) in its mind, when it inserted, the non obstante clause. Once S.3 of the Act is held unconstitutional, the position is that the legislative declaration as to non-existence of creamy layer goes and the existence of creamy layer becomes a starting reality. That will mean that under the Act of 1995, the Legislature has not eliminated the defect. Nor can S.4 in this connection be of any help because that provision has also been declared as unconstitutional. Section 6 cannot stand alone once Ss.3 and 4 are declared unconstitutional. As long as the creamy layer is not excluded and the defect continues, any validation - without elimination of the defect which is the basic clause of unconstitutionality - is, as already stated, ineffective and will be invalid. Thus S.6 is also unconstitutional.” In Cauvery Water Disputes Tribunal's Case (AIR 1992 SC 522) the Apex Court pronounced the Karnataka Cauvery Basin Irrigation Protection Ordinance as unconstitutional as it affected the jurisdiction of the Tribunal appointed under the Central Act, namely, the Inter-State Water Disputes Act, 1956, which legislation was traced to Article 262 of the Constitution. The court found that the purport of the Ordinance was to nullify the interim W.P.C.27272/2006. 11 order passed by the Tribunal. Therein the court proceeded to hold as follows: “The Karnataka Ordinance 1991 is also against the basic tenets of the rule of law inasmuch as the State of Karnataka by issuing the Ordinance has sought to take law in its own hand and to be above the law. Such an act is an invitation to lawlessness and anarchy, inasmuch as the Ordinance is a manifestation of a desire on the part of the State to be a judge in its own cause and to defy the decisions of the judicial authorities. The action forebodes evil consequences to the federal structure under the Constitution and opens doors for each State to act in the way it desires disregarding not only the rights of the other Sates, the orders passed by instrumentalities constituted under an Act of Parliament but also the provisions of the Constitution. The Ordinance if allowed to stand would lead to the break down of the Constitutional mechanism and affect the unity and integrity of the nation. The legislature can change the basis on which a decision is given by the Curt and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter-parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the Sate and to functioning as an appellate court or Tribunal.” The decision in M.C.Mehta v. Union of India ((2006)7 SCC 456) is rendered only as an aftermath of the decision of the Apex Court in M.C.Mehta's Case ((2006) 3 SCC 399), which upheld the power of the W.P.C.27272/2006. 12 Municipal Corporation to seal premises in case of misuser and directed the sealing process to commence. Later the court had extended the time limit to stop misuser provided the persons filing an affidavit undertaking stopping of the misuse before 30.6.2006. The Delhi Laws (Special Provisions) Act was enacted on 19.5.2006. The ultimate question which arose was the competence of the legislature to extend the time granted by the Supreme Court in the exercise of its law making power. In the said context, the court proceeded to hold as follows: “Definitely, the legislature would lack competence to extend the time granted by the Supreme Court, in the purported exercise of law-making power. That would be virtually exercising judicial functions. Such functions do not vest in the legislature. In fact, those who gave undertakings are already in breach of the undertakings by not stopping misuser by 30.6.2006. The dignity and authority of the Court has to be protected not for any individual but for maintenance of the rule of law. The fact that those who gave undertakings may have been misled in view of the subsequent development can only be a mitigating factor while considering the action to be taken for breach of the undertakings. Further, there are no equities in favour of those who gave undertakings to the Supreme Court and obtained benefit of time. There is serious challenge to the validity of the Act and the notification. Pending determination thereof, such persons cannot be allowed to claim any benefit of the notification.” It is pointed out that in the face of an unambiguous direction to evict the W.P.C.27272/2006. 13 encroachers, it is not open to the legislature to make a law, be it as an Ordinance or a plenary legislation defying the court and setting at naught the judgments of a court made in exercise of the judicial function of the State vested with the courts. Learned Amicus Curie contended that having regard to the fact that the land was reserved under Section 96(1A) of the Kerala Land Reforms Act, the same cannot be distributed under sub- section (1) of Section 96. 6. Per contra, the learned Advocate General would contend that the Ordinance and the law made were perfectly within the legislative powers. He would contend that it would not be open to the petitioner in W.P.27272 of 2006 to impugn the legislation. It is contended that all that the State has done by way of the impugned legislation, is keeping in view the fact that many of the persons