Kurian s/o Luka Mantthottathil v. State of Kerala & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929** **WP(C).No. 6400 of 2008(J)** **-------------------------** **PETITIONER:** **---------------** **KURIAN, S/O.LUKA MANTHOTTATHIL, MANTHOTTATHIL HOUSE, KARIVEDAKAM VILLAGE AND POST, KASARAGOD DISTRICT.** **BY ADV. SRI.KODOTH SREEDHARAN** **RESPONDENTS:** **-----------------** **1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE SECRETARY, STATE LAND BOARD, THIRUVANANTHAPURAM.** **3. THE CHAIRMAN, TALUK LAND BOARD, KASARAGOD.** ## **4. THE DISTRICT COLLECTOR, KASARAGOD.** **5. THE TAHSILDAR, TALUK OFFICE, KASARAGOD.** **BY GOVT.PLEADER SRI.I.V.PRAMOD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/03/2008, THE COURT ON 11/03/2008 DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC, J. =============== W.P.(C) NO. 6400 OF 2008 J ====================** ## **Dated this the 11[th] day of March, 2008** ## **J U D G M E N T** The petitioner claims to be one of the legal heirs of late Luka Manthottathil. It is stated that by Ext.P2 order, the Taluk Land Board, invalidated a registered sale deed executed by late Luka Manthottahil (hereinafter referred to as the declarant) on 15/9/1965 in favour of Kochu Kartha Mathai and the declarant was ordered to surrender 12.6 acres of land in RS No.106/1 of Bandaduka village. Ext.P2 order was challenged by the declarant before this court in CRP No.772/1981 and the CRP was dismissed by Ext.P3 order. It is stated that Ext.P3 order was confirmed by the Supreme Court in Special Leave Petition No.1294/96. Petitioner contends that despite the aforesaid orders, the property continued to be in the possession of the declarant till his death and thereafter, the property continued in the possession of his legal heirs. It is also stated that the property has since been **WPC No.6400/08-J** ## **: 2 :** developed into a plantation. 2. By Kerala Land Reforms Amendment Act, 1963 (Act 21 of 2006), the 1[st] respondent amended the Kerala Land Reforms Act, 1963 introducing Section 7(E) thereof. The said section is extracted below for reference. “ **7E** . Certain person who acquired lands to be deemed tenants:- Notwithstanding anything to the contrary contained in Section 74 of Section 84 or in any other provisions of this Act, or in any other law for the time being in force or in any contract, custom or usage, or in any judgment, decree or order of any court, tribunal or other authority, a person who at the commencement of the Kerala Land Reforms (Amendment) Act, 2005, is in possession of any land, not exceeding four hectares in extent, acquired by him or his predecessor-in-interest by way of purchase or otherwise on payment of consideration from any person holding land in excess of the ceiling area, during the period between the date of the commencement of the Kerala Land Reforms Act, 1963(1 of 1964) and the date of commencement of the Kerala Land Reforms (Amendment) Act, 2005 shall be deemed to be a tenant. The effect of Section 7(E) introduced by Act 21 of 2006 is that, despite any judgment to the contrary, if a person who at the commencement of Act 21 of 2006 is in possession of any land not exceeding 4 hectares in extent acquired by him or his ## **WPC No.6400/08-J** ## **: 3 :** predecessor in interest by way of purchase or otherwise on payment of consideration from any person holding land in excess of the ceiling area, during the period between the commencement of the Kerala Land Reforms Act, 1963 and the date of commencement of Act 21 of 2006, such person shall be deemed to be a tenant. Thus on the introduction of Act 21 of 2006, the transferees of the properties referred to therein are thus given the status of a deemed tenant. 3. It is stated by the petitioner that subsequently though the compensation for the land ordered to be surrendered by Ext.P2 was sanctioned by Ext.P5, the petitioner objected to the same by filing Ext.P6. In this background, this writ petition has been filed and the main prayers sought for by the petitioner are the following: 1) a declaration that the petitioner and other legal heirs are entitled to retain the land ordered to be surrendered in TLB.1074/73 dt.30/1/81 as per Ext.P2 as a consequence of Kerala Land Reforms Amendment Act 2005. 2) a writ of prohibition or such other writ, order or direction directing the 2[nd] respondent not to assign the ## **WPC No.6400/08-J** ## **: 4 :** land ordered to be surrendered in TLB 1074/73 dt.30/1/81 as per Ext.P2 in favour of third persons and instead reassign the land to the petitioner. 3) a writ of certiorari or any other appropriate writ or order quashing Ext.P2 and Ext.P5. When the writ petition was taken up for hearing, counsel for the petitioner contended that although Section 7(E) conferred the status of a deemed tenant only on transferees, the petitioner is also entitled to the benefit of the said section, on application of the principles of promissory estoppel. It was contended that the legislative policy as reflected in Section 7(E) gives rise to a case of promissory estoppel and the counsel contended that since estoppel is applicable even against legislative policies, the petitioner is entitled to the protection thus granted by Section 7 (E). This argument of the learned counsel was sought to be supported by making reference to the decision of the Apex Court in the case of **Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & Etio and Others** reported in **2007(5) SCC 447.** 4. Having heard the learned counsel for the petitioner ## **WPC No.6400/08-J** ## **: 5 :** and considering the submissions, I must confess my inability to accept the argument raised. First of all in my view, the facts of this case does not give rise to a case of promissory estoppel. There has never been any promise from the part of the respondents nor has the petitioner acted upon such promise altering his position to his detriment. These are the basic and essential requirements for the applicability of promissory estoppel. 5. The case referred to by the learned counsel for the petitioner is also factually different. The case dealt with by the Apex Court was one where under the Tamil Nadu Electricity Duty Act, 1939 (“the 1939 Act”), a duty on certain sales of electrical energy by licensees in the State, which did not contain any provision for exemption was levied. The Tamil Nadu Electricity (Taxation on Consumption) Act 1962 (“the 1962 Act”) was enacted to provide for the levy of tax on the consumption of electrical energy in the State. Section 12 of the 1962 Act provided that in cases where energy under high tension supply ## **WPC No.6400/08-J** ## **: 6 :** was consumed in the process of manufacturing or producing the principal product in certain industrial undertakings, no electricity tax would be payable on the energy so consumed for a period of three years from the date of the commencement of production of the principal product. Section 13 of the 1962 Act enabled the State Government to make exemptions by notification in respect of the electricity tax payable. 6. Notifications were issued under Section 13 of the 1962 Act granting exemption from payment of the tax based on which various industrial units were established and in many cases applied for high tension energy connections in the year 1998 and set up captive power plants in 2000 and started drawing energy from their captive power plants only from the year 2000 and took various measures based on such exemptions and on the expectation that the exemptions would continue for the term that they were granted. 7. While so, the 1939 Act and the 1962 Act were replaced by the Tamil Nadu Tax on Consumption or Sale of Electricity Act ## **WPC No.6400/08-J** ## **: 7 :** 2003 (“the 2003 Act”). Validity of the provisions of the 2003 Act and/or application thereof in respect of the generating companies as also the consumers of electrical energy being purchasers from the Tamil Nadu Electricity Board, came to be questioned before the High Court. 8. It is in the above factual background the Supreme Court has held as follows in paragraph 121 of the judgment which is extracted below for reference: “ **121** . The doctrine of promissory estoppel would undoubtedly be applicable where an entrepreneur alters his position pursuant to or in furtherance of the promise made by a State to grant inter alia exemption from payment of taxes or charges on the basis of the current tariff. Such a policy decision on the part of the State shall not only be expressed by reason of notifications issued under the statutory provisions but also under the executive instructions. The appellants had undoubtedly been enjoying the benefit of ( _sic_ exemption from) payment of tax in respect of sale/consumption of electrical energy in relation to the cogenerating power plants”. Proceeding further the Supreme Court held that on the application of doctrine of promissory estoppel the right available to the appellants in that case was not destroyed. 9. As I have already held, on the facts of this case, I am ## **WPC No.6400/08-J** ## **: 8 :** not in a position to hold that the Government held out any promise to the petitioners on the basis of which they can be said to have altered their position to their detriment. On the other hand, in the case relied on, the petitioners had set up industrial units acting upon the promise held out by the State and it was this right that was upheld by the Apex Court. The factual situation being as above, the law laid down is totally inapplicable to the case pleaded in this writ petition. 10. Plainly reading Section 7(E) introduced by Act 21/06, it can be seen that the benefit of the section is available only to the transferees of land. In this case the petitioner or the other legal representatives of the declarant are not transferees and therefore are not entitled to the benefit of Section 7(E). If that be so, they cannot claim the benefit of the amendment introduced by Act 21/06. I do not find any merit in this writ petition. Writ petition is only to be dismissed and I do so. ## **ANTONY DOMINIC, JUDGE** Rp.