IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 W.A.No.755 of 2008 --------------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.9698/2008 DATED 26/03/2008 .................... APPELLANTS: RESPONDENTS:- ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. LAND REVENUE COMMISSIONER, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 4. THE ADDITIONAL MAGISTRATE, THIRUVANANTHAPURAM. 5. THE TAHSILDAR, THIRUVANANTHAPURAM. 6. THE VILLAGE OFFICER, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADVOCATE GENERAL SRI.C.P.SUDHAKARA PRASAD I/B. GOVERNMENT PLEADER SRI.D.ANILKUMAR. RESPONDENTS: PETITIONERS:- ---------------------------------------------- 1. YOUNG MEN'S CHRISTIAN ASSOCIATION (YMCA) THIRUVANANTHAPURAM, REPRESENTED BY ITS GENERAL SECRETARY. 2. NATIONAL COUNCIL OF YMCA OF INDIA, BHARAT YUVAK BHAVAN, JAI SINGH ROAD, P.B.NO.14, NEW DELHI-110 001, REPRESENTED BY THOMAS ABRAHAM, GENERAL SECRETARY, YMCA, THIRUVANANTHAPURAM. W.A.No.755 of 2008. - 2 - 3. MANAGER (FACILITIES), BRITISH COUNCIL, DIVISION OF BRITISH HIGH COMMISSION, SOUTH INDIA, BRITISH DEPUTY HIGH COMMISSION, 737, ANNA SALAI, CHENNAI - 600 0032. R1 & R2 BY ADV.SRI.M.C.SEN (SR.) SRI.JACOB P.ALEX. R3 BY STANDING COUNSEL SRI.P.SANJAY. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- H.L.DATTU, C.J. & K.M.JOSEPH, J. ------------------------------------------ W.A.No.755 of 2008 ------------------------------------------ Dated, this the 31st day of March, 2008 JUDGMENT H.L.Dattu, C.J. The State being aggrieved by the orders passed by the learned Single Judge in W.P.(C) No. 9698 of 2008 dated 26th March, 2008 is before us in this writ appeal. 2. We will refer to the parties in this proceedings as arrayed in the writ petition. 3. First petitioner is an association registered under the provisions of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. It claims that it is the lessee of 78 cents of land in Sy.No.2836 of Thiruvananthapuram SRO pursuant to the Indenture dated 26.10.1917 made between the then Divan of Travancore on behalf of the Government of His Highness the Maharaja of Travancore and the National Council of the Y.M.C.A. They have also stated that on the leased land they have put up construction. 4. In the writ petition it is further stated, that, they have leased out the building to the additional 7th respondent, namely the Manager (Facilities) British Council Division of British High Commission, South India, Chennai. 5. In the writ petition filed, the petitioners have primarily called in question Ext.P5 notice issued by the Tahsildar under the provisions of the Kerala Land Conservancy Act read with the Rules framed thereunder. By the impugned notice the Tahsildar has directed the General Secretary, Y.M.C.A. to quit and deliver vacant possession of the premises in question within two days from the date of receipt of the notice. It appears, the said notice was served on the petitioner on 19th March, 2008. W.A.No.755 of 2008 2 6. The learned Single Judge has disposed of the Writ Petition after hearing the parties to the lis. In the judgment, the learned Judge has observed that Ext.P5 notice issued by the 5th respondent is not in accordance with the provisions of the Land Conservancy Act and the Rules framed thereunder and, therefore, has directed the petitioners to treat Ext.P5 notice as show cause notice and file their objections, if any, within ten days from the date of the order. The learned Single Judge has also directed the Land Revenue Commissioner to hear and dispose of the matter, after hearing all the parties. 7. The additional 7th respondent, namely the British Council had undertaken before the Court that they will hand over all the books and other materials that are available in the Library to the Government of Kerala provided the Government indicates the day and time for taking over the books and the place where it is to be delivered, etc. Aggrieved by these directions the State Government is before us in this appeal. 8. The learned Advocate General appearing for the State Government would submit, that, the petitioners should continue to keep the library till the State Government makes alternative arrangements. Alternatively, it is contended that whatever fixtures that are available in the premises should be kept untouched by the petitioners or by the British Council till the State Government takes effective steps to take over the building in question. The submissions made by the learned Advocate General is seriously opposed by the learned counsel appearing for the petitioners as well as Mr.P.Sanjai, learned counsel appearing for the British Council. 9. In this appeal, we cannot even think of granting the requests made by the learned Advocate General. 10. In the Writ Petition filed, the petitioners were primarily aggrieved by Ext.P5 W.A.No.755 of 2008 3 notice issued by the Tahsildar. The said notice was issued under the provisions of the Land Conservancy Act and the Rules framed thereunder. In the notice so issued, the first petitioner association is called upon to hand over the building in its possession to the Tahsildar within 48 hours from the date of receipt of the notice. The tenor of the notice would indicate that the notice is issued by the 5th respondent in exercise of his powers under Section 11(3) of the Land Conservancy Act, 1957 read with Rule 13A of the Land Conservancy Rules, 1958. 11. The only question that requires our consideration and decision in this case is, whether, the notice issued by the 5th respondent is in accordance with sub-section (3) of Section 11 of the Act read with Rule 13A of the Rules. The said provisions are as under :- “S. 11(3) :- Notwithstanding anything contained in sub-section (2) where the Collector is of opinion in any case falling under sub- section (1) that it is expedient in the public interest to take urgent action without following the procedure laid down in sub-section (2) he may, after recording his reasons for so doing, issue a notice to the person in occupation calling upon him to vacate the land within such period as may be specified in the notice, and if the land is not vacated within the said period, any officer authorised by the Collector may enter upon the land and take possession of the same, if necessary by using such force as the circumstances may justify. R. 13A :- Notwithstanding anything contained in the foregoing rules, where the Collector is of opinion that it is expedient in the public interest to remove an unauthorised occupation, he may, after recording the reasons therefor, serve or cause to serve a notice in Form 'CC' appended to these rules on the person in W.A.No.755 of 2008 4 occupation directing him to vacate the land within such period as may be specified therein, and if the land is not so vacated within the said period, any officer authorised by the Collector may enter upon the land and take possession of the same, if necessary by using such force as the circumstances of the case may justify.” 12. The Legislature has authorised the District Collector, if he is of the opinion that it is expedient in the public interest to take urgent action without following the procedure prescribed under sub-section (2), he may do so after recording his reasons and by issuing a notice to the person in occupation calling upon him to vacate the land within the time prescribed in the notice etc. To subserve the purpose of sub-section (3) of Section 11, Rule 13A of Land Conservancy Rules is framed. 13. In the instant case the appellants have not produced any material before us to demonstrate that the requirement of sub-section (3) of Section 11 of the Act read with Rule 13A of the Rules has been complied with by the District Collector. That only means the notice issued by the authority is contrary to sub-section (3) of Section 11 of the Act read with Rule 13A of the Rules. Therefore, the notice issued by the Tahsildar requires to be set aside by this Court. The learned Single Judge instead of doing so has thought it fit to direct the petitioners to treat the notice issued by the Tahsildar as a show cause notice and file their reply, if any, within ten days and further has directed the second respondent in the writ petition to consider that objection and pass appropriate orders. The order passed by the learned Single Judge was not objected to by the parties to the lis at the time of disposal of the writ petition. 14. In view of the above, in our opinion, we cannot hold that the orders passed by the learned Single Judge is erroneous and therefore, requires interference by us in appeal. W.A.No.755 of 2008 5 15. Accordingly, we pass the following: ORDER i) Writ appeal filed by the State Government is rejected. However, the observations made by the learned Single Judge at paragraph 5 of the judgment are not disturbed. ii) Liberty is reserved to the State Government to issue appropriate notice apart from the notice which is already issued in consonance with the provisions of the Land Conservancy Act and the Rules framed thereunder. iii) In case any fresh notice is issued by the appellants to the petitioners/contesting respondents, liberty is also reserved to them to file their objections, if any, within ten days from the date of receipt of the notice. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (K.M.JOSEPH) JUDGE vns