IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 8792 of 2009(T) ------------------------- PETITIONER(S): --------------- ROY CHARLES, S/O.LATE CHARLIE, PANIKKASSERY HOUSE, CHITOOR ROAD, KOCHI-682 018. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, REVENUE (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM. 3. M/S.BHARATH PETROLEUM CORPORATION LTD., REPRESENTED BY THE TERRITORY MANAGER, IRIMPANAM, ERNAKULAM. 4. M/S.KERALA STATE HOUSING BOARD, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SC SRI.A.JAYASANKAR GP SRI.P.NARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- W.P.(C).8792/2009 -------------------- Dated this the 17th day of September, 2009 JUDGMENT Petitioner is the eldest son and claims to be one of the legal heirs of Late Charlie Panikacherry. Ext.P1 evidences partition of the properties amongst Charlie Panikacherry, his brothers and their mother in the year 1124 ME corresponding to 1949 of the Gregorian calendar. It seems that the properties in the 3rd schedule to Ext.P1 was allotted to the share of Late Charlie Panikacherry and this included 1 acre and 43 cents of land that was leased in favour of the erstwhile Burmah Shell Oil Company. The Company continued to be the lessee of the property. 2. The Jenmi of the property was issued a patta by the Diwan Peshkar as evidenced by Ext.P2. It is the admitted case that the assets of erstwhile Burma Shell Oil Company came to be transferred to BPCL in implementation of the provisions of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976. The extent of land held by the Company on a lease was approximately 32 acres, but it is admitted W.P.(C).8792/09 2 that this included the land claimed by the petitioner, having an extent of 1.43 Acres. 3. On the death of the petitioner's father, petitioner and his other legal heirs succeeded to the property and it seems that they entered into correspondence with BPCL seeking recovery of property after termination of the lease. The Company did not agree, but took the stand that the land in question originally leased in favour of the Burma Shell Oil Company was taken over by the Government and had later been assigned in favour of BPCL and subsequently, the land was surrendered by the Company in favour of the Government. In other words, the Company denied the petitioner's title to the property. 4. In the meanwhile, the aforementioned extent of land was assigned by the Government in favour of the Kerala State Housing Board and it was at this juncture that the petitioner had approached this Court in W.P.(C).13038/2008 inter alia seeking a direction to the Government to re- convey the aforementioned property to the petitioner. This W.P.(C).8792/09 3 Court by Ext.P19 judgment, after observing that the issues raised by the petitioner involve disputed questions of facts which cannot normally be decided in proceedings under Article 226 of the Constitution of India, took note of the request made by the petitioner for a direction to the Government to consider the representation filed by him. This Court therefore, directed the Government to take a decision on the petitioner's representation making it clear that the Court had not considered the petitioner's contentions on merits. 5. Later apprehending that the physical status of the land was about to change, even before the Government had taken a decision on the petitioner's representation, he had again approached this Court in W.P.(C).29377/2008. Same was disposed of as per Ext.P21 judgment wherein the parties were directed not to change the physical status of the land obtaining as on the date of the judgment till the Government takes a decision in terms of Ext.P19 judgment. 6. Later, Government heard the petitioner and by W.P.(C).8792/09 4 Ext.P25 order went on to hold that the petitioner's predecessor had originally leased the property by way of Kanam to the Burmah Shell Oil Company and the Company and its successor-in-interest were holding the land, that the original right held by the petitioner's predecessor-in- interest stood extinguished by virtue of the provisions of the Kanam Tenancy Abolition Act, 1956 and that therefore, the persons who were holding the lands on Kanam, acquired a right of fixity of tenure over the same and this was contemporaneous to the erstwhile Jenmi losing right over the property. That the Company had been given an another patta and that mutation in relation to the property was effected in the name of the Company, that the Company had later surrendered the property and subsequently the Government had assigned the land in favour of the Housing Board. Observing the aforementioned, the Government rejected the petitioner's request as per Ext.P25 order which has been challenged in this writ petition. 7. I heard learned senior counsel for the petitioner Mr.K.P.Dandapani, Additional Advocate General Mr.Renjith W.P.(C).8792/09 5 Thampan and Mr.Manu Govind, learned counsel for the Housing Board. 8. Learned Additional Advocate General raised an objection as regards the maintainability of the writ petition. He contended that the request made by the petitioner is essentially for recovery of possession of the property. Government, BPCL and the Housing Board had denied the petitioner's subsisting title to the property. If at all, therefore, the right of the petitioner is to approach the competent Civil Court seeking recovery of possession of the property on the strength of title. 9. Learned counsel for the petitioner submitted that as is evidenced by Ext.P25, the original of the patta stated to have been issued in favour of the erstwhile Burmah Shell Oil Company was not produced by the Company or its successor-in-interest and that since title to the petitioner's predecessor-in-interest is not a matter in dispute, the Government was competent to take note of the same and was therefore, obliged to accept the petitioner's request. W.P.(C).8792/09 6 10. Insofar as the Housing Board is concerned, the counsel for the Housing Board affirmed that they have been assigned 1.43 acres of land by the Government and as a statutory corporation, which has been assigned the property by the Government, they are entitled to assert possession over the same and carry on their activities. 11. A reading of Ext.P25 order would show that the Government had proceeded to consider as it were, rival claims of title to the property in question. It is true that this Court had in Ext.P19 judgment directed the Government to consider the petitioner's representation marked as Ext.P3 therein and take a decision. But it is significant that this Court had even in Ext.P19 judgment observed that the issue involved disputed questions of facts which cannot be decided under Article 226 of the Constitution of India. It is thereafter, that this Court had permitted the petitioner to prosecute his representation and directed the Government to take a decision on the said representation. A direction to the Government to take a decision on the petitioner's W.P.(C).8792/09 7 representation, will not bestow on the Government the right of adjudicating disputed questions of title to immovable property and take a decision on the same. Here is a case where the petitioner continues to assert subsisting title over 1.43 acres of property which admittedly was originally leased in favour of the Burmah Shell Oil Company. The question as to whether the original Kanamdar became entitled to acquire Jenmam right over the property by reason of the Cochin Tenancy Act is obviously not a matter that could be decided by the Government exercising purely executive functions. In such circumstances, only a competent Civil Court as such could grant the petitioner the relief prayed for namely a direction to the Government to re convey the property. In essence, the petitioner's request is for recovery of possession of the property claimed by him on the strength of title and this obviously can be entertained, considered and if possible accepted only by a competent Civil Court. The Civil Court, subject to conferment of powers on any specially constituted Tribunal in that regard, would be entitled to decide questions relating to alleged extinguishment of right W.P.(C).8792/09 8 title interest over the property held on lease by a Kanamdar and other issues as to whether the erstwhile owner of the property would be entitled to seek recovery of possession of the property after termination of lease on the strength of title. 12. If therefore, the Government was incompetent to decide the aforementioned questions, then I am of the view that any observations made by the Government in Ext.P25, repudiating the claim made by the petitioner is liable to be declared as ineffectual, carrying no legal implications or consequences as such. If the Government is of the opinion that the petitioner's request for re conveyance could not be accepted, then, it should have merely stated that the petitioner's remedy lies elsewhere. It need not have gone into questions of fact, and found against the petitioner's claim. 13. In the result, writ petition is disposed of holding that observations and findings made by the Government in Ext.P25 as regards the alleged extinguishment of title over W.P.(C).8792/09 9 the property having an extent of 1.43 acres in survey No.229 of Ernakulam Village, shall be treated as ineffectual and bereft of any consequences. Neither the petitioner nor the respondents shall be bound by the same. They shall only be treated as expressions of opinion by the Government. It will be open to the petitioner to approach the competent Civil Court for appropriate reliefs, for recovery of possession of the property and for any other incidental reliefs, as the case may be. It will be open to the petitioner to approach the Civil Court within a period of three months from the date of receipt of a copy of this judgment. Subject to the above, the writ petition is disposed of. V.GIRI, Judge mrcs