IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 WA.No. 2442 of 2008() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.16393/2008 Dated 23/09/2008 .................... APPELLANT(S): PETITIONER ------------------------ THE TRIVANDRUM GOLD CLUB, REPRESENTED BY ITS HONORARY SECRETARY S.N.RAGHUCHANDRAN NAIR, S/O.LATE V.NARAYANA PILLAI HONORARY SECRETARY, THE TRIVANDRUM GOLF CLUB, KOWDIAR, THIRUVANANTHAPURAM. BY ADV. SRI.SAJU.S.A SRI.VINOD RAVINDRANATH RESPONDENT(S): RESPONDENTS -------------------------- STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL BY GOVERNMENT PLEADER SRI.M.P.SREEKRISHNAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06/01/2009, ALONG WITH WA NO. 2445 OF 2008 WA NO. 2439 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy, Ag. C.J. & P.R.Ramachandra Menon, J. -------------------------------------- W.A. Nos.2442, 2445 and 2439 of 2008 -------------------------------------- Dated this, the 6th January, 2009 JUDGMENT Koshy, Ag. C.J.: In an extent of 25.38 acres of land in Peroorkada Village at Kowdiar in the heart of Thiruvananthapuram City belonging to the Maharaja of Travancore, a golf course was started in the year 1890. Since the land belonged to the Maharaja of Travancore, it became government land on the formation of the State and in 1950 the Government entrusted the management of the golf course to the Trivandrum Golf Club. On 11.10.1966 the Government granted the club the right of use of the property for a period of 99 years by Ext.P1 which is a deed of licence executed by the Government in favour of the Club. The Golf Club is a society registered under the Travancore Cochin Scientific, Literary and Charitable Societies Act. Ext.P2 Government Order shows that in 1969, six government nominees were named to the eleven member executive committee of the club namely, the Chief Secretary to the Government; Secretary to Government in charge of Sports; District Collector Trivandrum; Chief Engineer, General Buildings and Roads, PWD; Director of Tourist Department and President of the Kerala Sports Council. In view W.A.Nos.2442/08 etc. - 2 - of the above, the Government has got control over the management of the Club. In 2002, by Ext.P5, the government increased the annual remittance to Rs.25,000/-. Ext.P5 reads as follows: “In his letter read above, the President Trivandrum Golf Club has requested Government for permission for the occasional use of the premises (mainly the conference hall and adjacent lawns) for holding meetings and other activities allied to the social, cultural and business activities of the members of the Club, outside club hours, on a nominal charge, and without any adverse effect on the premises or the convenience of other members. 2. Government have examined the request of the club with reference to the conditions of the lease agreement. The lease agreement (clause i & v) provides that Government should meet the cost of maintenance and also the gardener's pay and water charges of the building. Government have since stopped meeting such expenditure as provided in clauses i and v. In such a circumstances, the additional income by means of permitting the premises for meeting and other activities of the members of the Club as now proposed to be raised would enable the club to upgrade the level of maintenance and up-keep of the premises to the required standard. W.A.Nos.2442/08 etc. - 3 - 3. In consideration of the above mentioned reasons, Government are pleased to grant the request of the Club. The Club will, however, remit to Government a share of the additional income so generated. The Club will remit an amount of Rs.25000/- per annum initially. The amount of remittance to Government will be subject to further review after assessing the level of such income that the Club is likely to receive.”. By Ext.P6, notice was issued for cancelling the licence agreement dated 11.10.1966. In spite of Ext.P7 reply, by Ext.P8 it was informed that Government had decided that future management of the golf course would be resumed by the Government from the club and consequently, Exts.P9 and P10 were issued. The management of the club approached this court questioning the same. Even though arguments were raised regarding the nature of Ext.P1, learned Single Judge found that it is a licence given by the Government and the terms of the licence are binding on the parties. Learned Single Judge after considering the contentions of both parties set aside Ext.P8 order after finding that there is violation of principles of natural justice and the conditions of Ext.P1. At paragraph 40 of the impugned judgment it was held as follows: W.A.Nos.2442/08 etc. - 4 - “The fact that there is a finding in the impugned order may not really be an answer to the contention. Absence of such allegation in the show cause notice violates the principles of natural justice. After all the principles of natural justice would only require that any fact which could apparently be used against the aggrieved party (which is the licensee in this case) should be specifically brought to its notice and it should be given an opportunity to rebut the allegation and produce documents in substantiation of its contentions. This is all part of the decision making process of the Government, which as I stated above, is vulnerable to judicial review under article 226 of the Constitution of India”. Again at paragraph 45 it is held as follows: “.......I have to take note of the fact the Golf Club is being run in the property since 1890. The licence in this regard was executed by the Government in 1967. It is more than 40 years now. In the circumstances, in the event of the Government finding that there has been an infraction of the conditions of the licence, it is only appropriate that sufficient time is given to the petitioner to vacate the premises in question. I am constrained to observe this, in the light of the fact that there has been an allegation that the action of resuming possession pursuant to Ext.P8 order was unnecessarily hurried and resulted in injustice. Be that as it may, the controversy is no longer in existence.”. W.A.Nos.2442/08 etc. - 5 - The learned Judge also stated that the Government should issue fresh show cause notice within one month and the Club should be given a minimum period of six weeks to give reply and to place the materials in support of its contention, that a reasonable opportunity of hearing should be afforded, before the Government takes a fresh decision. It is further stated that entire procedure as outlined above shall be completed within four weeks of the date of receipt of the judgment. Various directions were also given in paragraph 43 of the judgment. Learned Judge also noticed that Government is entitled to revoke the licence and resume the property after giving two years notice or by exercise of the power under first limb of clause xi of the agreement. 2. As the government is the owner of the property and the club is only a licensee, the licence can be terminated as per the conditions in the licence deed. Ext.P8 was set aside by the learned Single Judge for valid reasons. The government has not challenged the judgment, but the club has filed these appeals challenging the common judgment on limited grounds. 3. Paragraph 45, starts with the sentence as follows: “In the result Ext.P8 order is quashed. The Government is directed to issue a fresh show cause W.A.Nos.2442/08 etc. - 6 - notice to the petitioner within one month from the date of receipt of a copy of this judgment, keeping in kind the observations made above”. We make it clear that if the Government wants to resume the land, Government may issue a fresh notice to the petitioner and the above quoted sentence is not a positive direction. At any time such notice can be issued but sufficient opportunity as stipulated in the judgment should be granted for giving reply and an opportunity of hearing should also be granted before taking resumption proceedings as the Club was in possession of the land for more than 40 years on the basis of Ext.P1 deed. But learned Judge while holding that by giving two years notice licence can be terminated, has further stated that it cannot be the subject matter of further enquiry and it cannot be further questioned. We agree with the views of the learned Judge that it is a government property and the club is in possession of the same as per the licence deed and before terminating the licence, principles of natural justice have to be complied with, and the necessary orders can be passed strictly in terms of the agreement and in accordance with law. But we cannot foreclose the rights of the parties in approaching the court, if the final order passed after hearing the parties is vitiated W.A.Nos.2442/08 etc. - 7 - on any valid ground like violation of agreement conditions etc. This court need not say anything about an order yet to be passed. We make it clear that the observations in this judgment or the impugned judgment will not restrain the parties from entering into a compromise. If any action for termination of licence is taken by the Government, the aggrieved party is free to challenge the same before appropriate forum if allowed by law. We modify the judgment to that extent indicated and the appeals are disposed of accordingly. J.B. Koshy, Acting Chief Justice. P.R. Ramachandra Menon, Judge. lk/DK.