IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 WP(C).No. 15416 of 2007(I) -------------------------- PETITIONER(S): --------------- MUNNAR WOODS,A PARTNERSHIP FIRM REGISTERED UNDER THE INDIAN PARTNERSHIP ACT 1932, REP.BY ITS MANAGING PARTNER,K.A.JOSEPH, AGED 56 YEARS,S/O.ASTHAPANOS, RESIDING AT 37/2990,KALLINGAL HOUSE, PONOTH ROAD,KALOOR,KOCHI. BY ADV. SRI.K.JAYAKUMAR RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REP.BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE TAHSILDAR,TALUK OFFICE, DEVIKULAM. 3. THE REVENUE DIVISIONAL OFFICER/ SUB COLLECTOR,DEVIKULAM. 4. THE DISTRICT COLLECTOR, IDUKKI COLLECTORATE, PAINAVU P.O., IDUKKI DISTRICT. 5. K.SURESH KUMAR,I.A.S., SPECIAL OFFICER FOR EVICTION, CAMP OFFICE AT LB,OF K.S.E.B., CHITTIRAPURAM P.O.,PALLIVASAL VILLAGE, DEVIKULAM TALUK. 6. RISHIRAJ SINGH,I.P.S., SPECIAL OFFICER FOR EVICTION, CAMP OFFICE AT LB,OF K.S.E.B., CHITTIRAPURAM P.O., PALLIVASAL VILLAGE, DEVIKULAM TALUK. GOVERNMENT PLEADER SRI.M.P.SRIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.6.2009, THE COURT ON 22.7.2009 DELIVERED THE FOLLOWING: W.P.(C). No. 15416/2007 APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE NOTICE DTD.18.5.2007 OF THE DIST. COLLECTOR, IDUKKI. P2. COPY OF THE AFFIDAVIT DTD.20.5.2007 BY ADVOCATE DIPU CHANDRAN. P3. COPY OF THE DEED DTD.27.1.2003 AND SALE DEED DTD.6.4.94 OF DEVIKULAM SRO. P4. COPY OF THE TAX RECEIPTS. P5. COPY OF THE PLAINT AND INTERLOCUTORY APPLICATION. P6. COPY OF THE ADVOCATE COMMISSIONER REPORT. P7. COPY OF THE SALE DEED NO.984/78 OF SRO DEVIKULAM. P8. COPY OF THE DOCUMENT NO.28/93 OF DEVIKULAM SRO. P8A. COPY OF THE LEGIBLE COPY OF Ext.P8. P9. COPY OF THE RELEASE DEED. P10. COPY OF THE NOTICE DTD.9.1.07. P11. COPY OF THE OBJECTION TO Ext.P10 DTD.12.2.07. P12. COPY OF THE NOTICE DTD.8.5.07 BY THE DIST. COLLECTOR. P13. COPY OF THE NOTE PREPARED AS A SUPPLEMENTAL OBJECTION DTD.16.5.07. P14. COPY OF THE NOTICE DTD.11.7.08 BY R2. P15. COPY OF THE RELEVANT PAGES OF BASIC TAX REGISTER. P16. COPY OF THE MORTGAGE DEED EXECUTED BY M.P.VARGHESE IN FAVOUR OF GOVERNOR OF KERALA. P17. COPY OF THE COMMUNICATION FROM THE CHIEF SECRETARY TO GOVT. OF TRAVANCORE. P18. COPY OF THE ROYAL PROCLAMATION DTD.11.8.1897. P19. COPY OF THE PROCEEDINGS OF HIS HIGHNESS THE MAHARAJA OF TRAVANCORE. RESPONDENT(S)'EXHIBITS R4A. COPY OF THE COMMUNICATION FROM THE CHIEF CONSERVATOR OF FOREST (PROTECT) DTD.1.9.88. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.15416 of 2007 ================== Dated this the 22nd day of July, 2009 J U D G M E N T The petitioner in this writ petition is a partnership firm. They are challenging Ext.P1 order dated 18.5.2007 of the 4th respondent District Collector, Idukki, by which 2.84 acres of property jointly owned by the partners of the petitioner firm in Sy.Nos.84/1-1 and 84/1-2 in Pallivasal Village in Devikulam Taluk, have been ordered to be resumed by the Government for violation of Rule 14 of the Rules for Lease of Government Lands for Cardamom Cultivation, 1961 Ext.P.1 was passed pursuant to Ext.P10 show cause notice dated 9.1.2007, in which, it was alleged that the running of a resort by the petitioner in the property by converting the land reserved for cultivation of cardamom is in violation of Rules 36 and 37 of the 1936 Rules for grant of Patta for cultivation of cardamom, condition No.4 of the said rules, Rules 7, 11 and 24 of the Rules for Lease of Government Lands for Cardamom Cultivation, 1961 (hereinafter referred to as the 1961 Rules), and condition Nos.7, 11, 14, 16 and 17 of the order under which the lease has been granted. 2. According to the petitioners, on receipt of Ext.P10 show cause notice, directing the petitioner to show cause why the patta/lease granted in respect of the land reserved for cardamom w.p.c.15416/07 2 cultivation, should not be cancelled and the land resumed by the Government, the petitioner filed Ext.P11 reply explaining that the land belongs to the partners of the firm absolutely, they having brought the same by sale deed No. 456/2003, dated 27.1.2003 of Kothamangalam Sub Registrar's office, which is maintained as a cardamom plantation, in which a resort is constructed in the most eco-friendly manner, without cutting any trees or altering the nature of the land. They also claimed to have produced documents to prove their contentions. Thereafter, the petitioner was served with Ext.P12 notice dated 8.5.2007 directing the petitioner to appear for a hearing before the Collector at 2.30 p.m. on 16.5.2007, with all documents of title in respect of the property. According to the petitioner, on that day, the petitioner along with his advocate was present in the office of the Collector from 1 p.m. onwards with documents and Ext.P13 note explaining their contentions. However, the Collector was not present in his office. They waited in the office till 5 p.m. and returned, since the Collector did not come till the closure of the office hours. Despite the same, Ext.P1 order was passed stating that the petitioner did not appear for the hearing despite receipt of notice and directing resumption of the land for violation of the 1961 Rules. Pursuant to Ext.P1, the resort constructed spending crores of rupees was razed to the ground on 21.5.2007 without even considering the plea of the w.p.c.15416/07 3 petitioner for time to remove the valuables from the resort. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i. a writ of certiorari or any other appropriate writ order or direction quashing Exhibit P1 dated 18th May 2007 issued by the District Collector as illegal and unsustainable in law. ii. issue a writ in the nature of mandamus commanding the respondents 1 to 4 to restore to the petitioner possession of the land having an extent of 2.84 acres of property in survey No.84/1-1 and 84/1- 2 of Pallivasal Village, Devikulam Taluk resumed under Exhibit P1 forthwith or at any rate within a time frame to be fixed by this Hon'ble Court. iii. Any other appropriate writ, order or directions as this Hon'ble court may deem fit on the facts and in the circumstances of the case and allow this petition with all costs.” 3. In support of his claim for title the petitioner traces his title thus: The land formed part of 7 acres and 69 cents in Sy. No.197 in Pallivasal Village, which belonged to the erstwhile Travancore State. By Ext.P8 agreement dated 17.12.1133 (M.E.) which, according to the petitioner, corresponds to 1.8.1938 as per English calendar, registered as document No.28 of 1114 of Devicolam Sub Registrar's office, the erstwhile Travancore Government, acting through the Devicolam Divisional Commissioner, executed under the Cardamom Rules 1935 (hereinafter referred to as the 1935 Rules), 7.69 acres of land comprised of 4.84 acres in Sy.No.177 and 2.85 acres in Sy.No.197 in Pallivasal Village was assigned in favour of one Pylee Varghese. On the w.p.c.15416/07 4 security of Ext.P16 mortgage deed dated 18.11.1963 registered as No.459 of 1963 of Devicolam Sub Registrar's office in respect of 2.84 acres in Sy.No.197 in Pallivasal Village, the Government of Kerala sanctioned a loan of Rs.4000/- to the said Pylee Varghese for cultivating cardamom. Later on, on re-payment of the loan amount with interest, the Government of Kerala released the property from the mortgage in favour of Smt.Mariamma Varghese, widow of Pylee Varghese, the said Pylee Varghese having died in the meanwhile. The said Smt.Mariamma Varghese sold 2.84 acres in Sy.No.197 to one Kurian by Ext.P7 sale deed dated 22.6.1978, registered as document No.984 of 1978 of Devicolam Sub Registrar's office. Out of the said 2.84 acres, the said Kurian sold 1.42 acres each to P.J.Paul and P.D.Koshy, by two sale deeds, both dated 6.4.1994, registered as document Nos.1320 and 1321 of 1994 of Devicolam Sub Registrar's Office, produced in the writ petition as part of Ext.P3 series of documents. The said P.J.Paul and P.D.Koshy together sold the 1.42 acres obtained by each of them to Sri.K.A.Joseph and M.S.Jayakumari (partners of the petitioner firm) by sale deed dated 27.1.2003 registered as document No.458 of 2003 of Devicolam Sub Registrar's office, which also forms part of Ext.P3 series of documents. According to the petitioner, as evidenced by Ext.P15 extract from the Basic Tax Register maintained in the Pallivasal Village Office, the said property w.p.c.15416/07 5 was mutated originally in favour of Pylee Varghese and later in the name of P.D.Koshy and P.J.Paul. They also rely on Ext.P4 series of tax receipts to prove that land tax was being received from the partners of the petitioner and their predecessors-in-interest as pattadars in respect of the property. 4. The petitioner contends that the assignment in favour of Pylee Varghese by the erstwhile Travancore Government was an absolute assignment, although for cultivation of cardamom, without any condition for resumption in the event of non-cultivation with cardamom. Further, According to the petitioner, the 1935 Rules are no longer in force in view of the repeal provisions of the Travancore Cochin Government Land Assignment Act, 1950 and the Government Land Assignment Act, 1960. Therefore, even assuming that under the 1935 Rules, the land could have been resumed for non-cultivation of cardamom, since the Rules themselves stand repealed, the Collector could not have invoked the said Rules for resumption of the land. A further contention raised is that in so far as no lease has been granted under the 1961 Rules, invoking of the provisions of those rules is also unsustainable. According to the petitioner, the Collector never had any consistent case as to his source of power to issue Ext.P1 order and in any view of the matter the action is without jurisdiction in so far as the source of power cannot be traced to any provision of law now in force. w.p.c.15416/07 6 5. A counter affidavit has been filed by a later incumbent of the office of the District Collector, Idukki, in which the contention taken is that the petitioner is a trespasser into Government land and they have no valid title to the land. Therefore, according to them, the petitioner can be evicted summarily under the Kerala Land Conservancy Act. The averment of the petitioner that the then District Collector was not present in office on 16.5.2007 is denied by the person who filed the counter affidavit. It is further contended that being part of unreserved forest, the land would come within the purview of the Forest Conservation Act, 1960. They also claim that in view of ROC No.7959/41/Rev. dated 19.6.1942, which was issued before the completion of the proceedings for issue of patta under the 1935 Rules, the registry is terminable on alienation without permission and since the original assignee had alienated the land without permission, the Government is empowered to cancel the registry and resume the land. The learned Government Pleader contends that it is the petitioner who does not have a consistent case regarding their title to the property. He points out that the specific contention of the petitioner is that at the time of purchase, the land was an abandoned coffee plantation, whereas in all documents including the sale deed in their favour the land is described as a cardamom plantation. He further points out that in Ext.P7 sale deed executed by Mariamma, wife of w.p.c.15416/07 7 Pylee Varghese himself, the property is described as Kuthakappattom lands, and in Ext.P3 sale deed executed in favour of the partners of the petitioner by P.J.Paul and P.D.Koshy, Kuthakapattom is also mentioned. He points out further that in the schedule to Ext.P5 plaint in the suit filed by the petitioner, the property is described as 'Sirkar pattom'. Therefore, according to the learned Government Pleader, the petitioner did not have a consistent case regarding their title to the land. He argues that in Ext.P8 agreement, Pylee Varghese was to pay the balance land value in five instalments and the petitioner has not been able to produce any evidence regarding payment of the instalments, nor have they produced the patta issued under the 1935 Rules, in the absence of which, the petitioner cannot claim valid title to the land. When admittedly it was Government land, and the petitioner could not prove a valid assignment in their favour or their predecessors-in-interest, the petitioner is only a trespasser and the Government is entitled to resume the land as such. Therefore, according to the learned Government Pleader, Ext.P1 order and the action of the Government are perfectly valid and proper even if a wrong provision of law is mentioned therein. The Government Pleader also points out that in view of the decision of the Supreme Court in State of Kerala and others v. Vincy Cherian and others, 2008 INDLAW SC 929, the question as to whether despite coming into force of the w.p.c.15416/07 8 1960 Act and the Rules framed thereunder, the 1935 Rules still survive, is still at large pending before Division Bench, for considering which, in that case, the Supreme Court has remanded the matter to the High Court. He also contends that Ext.P19 order of the Maharaja of Travancore came into force before the registry proceedings in favour of Pylee Varghese was completed and therefore the condition therein that in the event of the land being transferred, the land is liable to be resumed, becomes applicable to that assignment, in which case since the widow of the said Pylee Varghese has transferred the assigned land, the assignment is liable to be terminated and the land resumed by Government. 6. Before going into the rival contentions, I am constrained to comment upon a disturbing attitude of the Government, which have come to light in the course of arguments, revealed by the decision relied upon by the Government Pleader himself. In Vincy Cherian's case (supra), originally by order dated 3.3.2006, a Division Bench of this Court, in W.A.No.2090 of 2004, directed the Government of Kerala to consider the application of the respondents before the Supreme Court, for registry of land in terms of the provisions of the Cardamom Rules (Travancore) 1935. Challenging that order of the Division Bench, the State of Kerala contended before the Supreme Court that in view of S.9(3) of the Government Land Assignment Act, 1960, the w.p.c.15416/07 9 Government Land Assignment Act III of 1097 (Travancore) and the Cardamom Rules 1935 framed thereunder stood repealed and therefore, an application for assignment under those 1935 Rules which are no longer in existence cannot be directed to be considered. The very same Government, like a cantankerous private litigant, in this case takes the diametrically opposite contention that the State is justified in resuming the land in question relying on the very same provisions of the Cardamom Rule 1935, which, they simultaneously contend before the Division Bench in W.A.No.2090 of 2004, can no longer be pressed into service for considering an application under those Rules, since those Rules stand repealed by the Government Land Assignment Act, 1960. I am unable to understand how a State Government can, in two pending cases, take two diametrically opposite contentions of law, to suit the occasion. I am of opinion that it is unbecoming of a State which swears by the Rule of Law to take up such totally inconsistent contentions on law, merely to win a case. I am at a loss to understand what stand the State would take if I am to refer this case to the Division Bench, on that question and the two cases are heard together. However, I am not inclined to refer this case to the Division Bench on that question, since the counsel for the petitioner submits that they are prepared to accept the stand of the Government that the Cardamom Rules, 1935, can still be pressed into w.p.c.15416/07 10 service, if applicable and they only contend that in this case, the reliance on those Rules for the action of the Collector is misplaced. I express my strong disapproval of such attitude of the State for winning a case. A responsible democratic government is duty bound to take a definite stand on a question of law, and merely for winning both cases, shall not take diametrically opposite contentions in two cases on the same question of law, which if permitted would lead to chaos in administration. 7. Coming to the merits of the case, I find considerable merit in the contention of the petitioner that the respondents have no consistent case on the issue involved in the writ petition. The action against the petitioner is initiated by Ext.P10 show cause notice, which itself is inconsistent. It refers to both patta and lease granted to the petitioner and directs the petitioner to show cause why the patta/lease should not be cancelled. In Ext.P10, the Collector is not sure as to what is to be cancelled, whether it is patta or lease granted to the petitioner. It alleges violation, by the petitioner, of the provisions of the Cardamom Rules 1936 (sic for 1935) and violation of the 1961 Rules. The 1935 Rules do not contain any provision for lease of Government land for cardamom cultivation. The provisions therein provide only for assignment of land on registry. The 1961 Rules do not contain any provision for assignment of land to anybody. As the name w.p.c.15416/07 11 of the Rules itself makes it clear (Rules for Lease of Government Land for Cardamom Rules, 1961) the same relates to lease of Government land only. Ext.P10 refers to violation of the terms of an order granting lease. They have not produced copy of any such order granting lease. They do not have possession of any records either of the patta or the lease referred to in Ext.P10. Then it is anybody's guess as to how they have come to the conclusion that the petitioner has violated conditions in both. At the same time, they find fault with the petitioner for not producing the original patta issued to them and argues that since they have not produced the same they have no title to the property. It is amusing to note that after directing the petitioner to show cause why the patta/lease issued to the petitioner should not be cancelled, the very same authority contends that no patta is produced to prove title. Then again after alleging violation of the terms and conditions of an order granting lease, they now contend that there is no such order. Further, without even seeing the patta or lease, in Ext.P10, the 4th respondent alleges violation of conditions stipulated therein. 8. Then again, in Ext.P1 which is the impugned order, there is no mention of the 1935 Rules at all or violation thereof. What is found therein is two violations of the 1961 Rules. The first is that contrary to the conditions of lease, the property leased for cultivation of cardamom has been used for construction of a resort. The second is w.p.c.15416/07 12 that in violation of Rule 14 thereof, the land has been alienated without permission from the District Collector. Therefore, Ext.P1 order presupposes the grant of a lease for cardamom cultivation under the 1961 Rules and yet they are not able to produce any order granting such lease. 9. In the counter affidavit filed in this case, they make a turn around. Therein, there is absolutely no mention whatsoever about the 1961 Rules or violation thereof, which is the only ground on which Ext.P1 order has been passed. Instead the 4th respondent takes the stand that the petitioner is a rank trespasser on a land which belongs to the Government and therefore, the petitioner can be summarily evicted under the Land Conservancy Act and that the District Collector is perfectly justified in doing so, apparently justifying Ext.P1 under the Kerala Land Conservancy Act, although neither in Ext.P10 nor in Ext.P1 is there any reference whatsoever to the Kerala Land Conservancy Act. The procedure for eviction under the Kerala Land Conservancy Act and the Rules by issuing notices in the forms prescribed under the Rules is also not complied with. 10. In the counter affidavit they seek to controvert the contention of the petitioner regarding title also on the basis of the 1935 Rules, contending that Ext.P8 is only an agreement which says that on payment of the amount in instalments mentioned in Ext.P8, w.p.c.15416/07 13 the land would be assigned to Pylee Varghese for the purpose of cardamom cultivation. According to the 4th respondent, there is nothing to show that Pylee Varghese had obtained patta by paying the instalments and therefore, the petitioner is a trespasser. 11. Lastly, in the counter affidavit, yet another contention is taken that the land forms part of unreserved forest, which cannot be used for non-forest purpose, which the petitioner has done by constructing a resort thereon, violating the provisions of the Forest Conservation Act, 1980. They have produced Ext.R1(a) communication from the Forest Conservator, which does not contain any reference to the land in question. 12. As such inconsistency at every stage is the hallmark of their contentions in this case and District Collector could not with any amount of certainty state as to under what provision of law the impugned action was initiated and completed. In fact, their entire case is a bundle of contradictions. 13. In addition to the inconsistency, the petitioner alleges dishonesty also on the part of the then District Collector, who passed Ext.P1 order. According to the petitioner, although their representative along with their advocate, was present for the hearing on 16.5.2007, the Collector was not present in the office till 5 p.m. on that day. The petitioner has produced Ext.P2 affidavit of the Advocate who swears to w.p.c.15416/07 14 the fact that they were present for the hearing and at that time and the confidential assistant of the Collector told them that the Collector was at Munnar, 2½ hours away from his office and that fresh notice of hearing would be issued to them. Despite the same, in Ext.P1 order it is stated that the petitioner was not present for hearing, which according to the petitioner, is totally incorrect and mala fide. The author of Ext.P1 has not chosen to file an affidavit controverting the said allegations. Instead, the present incumbent of the office of the Collector states in the counter affidavit that the Collector was present in the office on 16.5.2007. It is further stated that neither the representative of the petitioner nor the advocate of the petitioner was present in the office on that day. I am at a loss to understand how, the present Collector, who was nowhere in the scene at the relevant time, could swear to such facts which are not in his personal knowledge. 14. It distresses me to note that in another case before me an identical allegation was raised against the same District Collector, who passed Ext.P1 order. In W.P.(C).No. 24415/2007 I directed the same District Collector to consider and dispose of a representation after affording an opportunity of being heard to the petitioner in that writ petition. Cont. case No.1709 of 2007 was filed by the petitioner therein alleging that an order was passed by the District Collector without hearing the petitioner. There also the allegation was that w.p.c.15416/07 15 although pursuant to the notice fixing a hearing, the petitioner was present in the office of the District Collector, the Collector was away and no hearing was conducted. But the Collector filed an affidavit stating that the petitioner appeared before him and he was heard by the Collector, which was strongly disputed by the petitioner. Since it was word against word, I did not proceed further and closed the case, leaving the petitioner to challenge the order passed on the ground of want of opportunity of being heard also and expressing displeasure about the manner in which the District Collector had dealt with the matter. I also disapproved of the attempt of the District Collector to put the blame on the Advocate General's office for his default in filing his response to the allegation of contempt of court. In that order, I also noted that the very same District Collector was earlier summoned in another case for non-compliance with another order of this Court. From what was