Mahindra Holidays & Resorts India Limited v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941** ## **WP(C).No. 36643 of 2007** ## **PETITIONER/S:** **MAHINDRA HOLIDAYS & RESORTS INDIA LIMITED, CHINNAKANAL VILLAGE, IDUKKI DISTRICT, REPRESENTED BY ITS DIVISIONAL MANAGER, S.RAMESH.** SHRI K.JAYAKUMAR (SR) SHRI P.K.VIJAYAMOHANAN SHRI V.SURESH SHRI GILBERT GEORGE COREYA SHRI O.V.MANIPRASAD ## **RESPONDENT/S:** - **1 THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE COMMISSIONER OF LAND REVENUE, GOVERNMENT OF KERALA, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM.** - **3 THE SUB COLLECTOR, DEVIKULAM, IDUKKI DISTRICT. 4 THE TAHSILDAR, UDUMBANCHOLA. BY ADDITIONAL ADVOCATE GENERAL, SHRI.RANJITH THAMBAN BY STATE ATTORNEY, SHRI.K.V.SOHAN BY GOVERNMENT PLEADER, SHRI.K.J.MOHD.ANZAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.11.2018, THE COURT ON 21.05.2019 DELIVERED THE FOLLOWING:** ## **`WPC 36643/2007`** ## **-:2:-** ========================= W.P.(C).No.36643/2007 "C.R." ~~~~~~~~~~~~~~~~~~~~~~~~~ 21[st] day of May, 2019 ## J U D G M E N T This writ petition was filed challenging the cancellation of the registry of assigned land under the Kerala Land Assignment Rules, 1964 (the “Rules” for short). 2. The Sub Collector Devikulam by proceedings dated 3.7.2007 ordered cancellation of the registry and assignment on finding that the land assigned for cultivation is found used for commercial purposes for running a resort. This order was impugned in appeal before the Land Revenue Commissioner. The Land Revenue Commissioner also affirmed the order of the Sub ## **`WPC 36643/2007`** ## **-:3:-** Collector, cancelling the assignment. These orders are impugned in the writ petition. 3. Heard the learned Senior Counsel Shri Jayakumar and learned Counsel Shri Gilbert George Correya appearing for the petitioner, learned Additional Advocate General, Shri Ranjith Thamban, learned State Attorney Shri K.V.Sohan ably assisted by the learned Government Pleader Shri K.J.Mohd.Anzar. 4. The petitioner M/s.Mahindra Holidays India Resort Limited is running a resort in Chinnakkanal Village in Survey No.20/1 in land having an extent of 9.16 acres. The petitioner obtained this land from Shri J.Thavamani and Shri Varkey Antony. Thavamani obtained an assignment of 2.61 acres of land. Varkey Antony also obtained an assignment of 2.76 acres of land. Remaining extent of land alleged to be in occupation of the petitioner is by way of ## **`WPC 36643/2007`** ## **-:4:-** encroachment. It is alleged that 1.0563 hectares (3.7 acres) of Government land has been encroached by the petitioner. In the assignment, certain conditions were stipulated. These conditions would form part of the statutory form of patta as referable under Rule 9(2) of the Rules. It is specifically stipulated that alienation of land is strictly prohibited for a period of 10 years and in that event, the Government would resume the land without paying any compenstation. The Kerala Land Assignment Rules came into force in the year 1964. The assignment in favour of the original patta holder Thavamani was on 15.9.1965 and in favour of Varkey Antony was in the year 1970. The petitioner purchased the land from Thavamani and Varkey Antony in the year 1984. They constructed a resort immediately thereafter. The constructed building was also assessed to Building Tax in ## **`WPC 36643/2007`** ## **-:5:-** accordance with the Kerala Building Tax Act, 1975. The Department Of Tourism, Kerala, also issued certificates for Tourism purposes. In terms of the Land Assignment Act and Rules, land can be assigned only for certain specified purposes. These purposes are specified in Rule 4 of the Rules. It specifically states that Government land may be assigned on registry for the purposes of personal cultivation, house sites and beneficial enjoyment of adjoining registered holdings. However, a residuary power is given to the Government under Rule 24 of the Rules to assign land for any other purposes on public interest. Sub Rule 2 to Rule 8 of the Rules stipulate a positive covenant obliging assignee to use the land for the purpose for which it was assigned. There was no condition in the form of patta issued that registry would be cancelled if there is any violation of Sub Rule 2, nor there ## **`WPC 36643/2007`** ## **-:6:-** was any statutory Rule at the relevant time for cancellation on violation of Sub Rule 2. However, the Rule was amended in the year 1971 by incorporating a provision for cancellation on contraventions of provisions of Sub Rule 2 as well. This was so incorporated in Sub Rule 3 to Rule 8. Admittedly, the patta was issued prior to incorporating the provisions in the year 1971 for cancellation of the patta for violation of Sub Rule 2. The crux of the legal issue in this matter revolves around the validity of the order of cancellation in the absence of any provisions in the patta or statutory rule at the time of issuance of patta. 5. The specific purpose for which land can be assigned is referred in Rule 4 of the Kerala Land Assignment Rules. It has two objectives. One of the objectives mentioned therein is to assign land on public interest; these assignments ## **`WPC 36643/2007`** ## **-:7:-** are for personal cultivation and house sites. The other objective is the assignment for the beneficial enjoyment of adjoining registered holdings on equitable grounds. The purpose of personal cultivation obviously is with an intention to promote agriculture and to contribute to the national economy and also to provide a livelihood to the individual concerned. The Government thought that cultivation would promote agricultural growth and ultimately would subserve the larger public interest by catering to the requirement of the people. The State has a similar interest in the matter of assignment of land for house sites. The distribution of wealth in an equitable manner is one of the mottoes of the socialist economy. The poor and needy who have no shelter, therefore, is given house sites to construct the houses. As a welfare State, the State cannot ignore poor and poverty-stricken ## **`WPC 36643/2007`** ## **-:8:-** people, who have no shelter of their own. The assignment to the adjoining registered holder is purely on equitable grounds. A registered holder may find difficult to enjoy his property without support and use of a Government land surrounded or adjoining to his property. In such circumstances, on equitable measures, the Government is free to assign land to such owners to enable him to enjoy his own registered holdings. 6. In private law, any restriction repugnant to the interest created is void except to the extent of securing the beneficial enjoyment of another piece of property belonged to the transferor. (See Section 11 of Transfer of Property Act, 1882). The transferee, therefore, in such cases is free to enjoy property absolutely as if there were no stipulations. ## **`WPC 36643/2007`** ## **-:9:-** 7. In public law, the transfer of an interest or assignment of Government land stands on a different footing. The Government is only a public trustee of the land belonging to the State. The Government cannot assign land on their whims and fancies. The land is a natural resource of utmost importance. Therefore, the Government can distribute the natural resources only adhering to the principles of public trust. No land can be assigned ignoring the public interest and detrimental to the public interest. 8. The subsequent incorporation of Rule 8(3) of the Rules for cancellation of patta cannot be relied upon in this matter as the assignment was prior to the amendment. In the absence of any specific condition for cancellation of assignment in the patta or in the statutory provisions at the relevant time, this Court needs to examine ## **`WPC 36643/2007`** ## **-:10:-** the decision taken to cancel the assignment in the light of the public trust doctrine. 9. In **Illinois Cent Co.v. State of** ## **Illinois City of Chicago [146 US 387 (1892)],** principles relating to public trust doctrine were expounded. It is appropriate to refer the opinion in that judgment which reads as follows: “The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein.” 10. In **M.C.Mehta v. Kamal Nath and others** **[(1997) 1 SCC 388],** the Apex Court observed that the State is the natural trustees of all ## **`WPC 36643/2007`** ## **-:11:-** resources, which are by nature meant for public use and enjoyment, and the State is a trustee under a legal duty to protect the natural resources. 11. In **Fomento Resorts & Hotels Ltd. v. Minguel Martins, (2009) 3 SCC 571],** the Apex Court held as follows: **“53.** The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens ## **`WPC 36643/2007`** ## **-:12:-** to question ineffective management thereof. **54.** The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations....” 12. **Reliance Natural Resources Ltd. v.** **Reliance Industries Ltd., (2010) 7 SCC 1]** at para.114 it was observed as follows: **“114.** It must be noted that the constitutional mandate is that the natural resources belong to the people of this country. The nature of the word “vest” must be seen in the context of the public trust doctrine (PTD). Even though this doctrine has been applied in cases dealing with environmental jurisprudence, it has its broader application.” ## **`WPC 36643/2007`** ## **-:13:-** 13. In the **Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1]** at para.75, it was held as follows: **“75.** The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39( _b_ ) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been ## **`WPC 36643/2007`** ## **-:14:-** enacted to generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State Legislatures deal with specific natural resources i.e. forest, air, water, coastal zones, etc.” 14. The precedents and decisions referred as above would well establish that the Government held the land as the trustee and the power given to the Government to assign or distribute the land is for the common good. Personal cultivation by an assignee, therefore, would subserve common good. The promotion of agriculture is to benefit all. It may be difficult for a Government to undertake an agricultural operation, like industry or similar activity. Therefore, such a task is entrusted with the individual. There cannot be any doubt that assignment for personal cultivational purposes is based on the larger common good. The ## **`WPC 36643/2007`** ## **-:15:-** right to food poses serious challenge to the State. The shortage of food will create economic and social problem to the State. The State in the enthusiasm to promote agriculture, in fact, is ensuring an adequate supply of food to its people. The natural resources like land are of scarce supply. The State has to use such natural resources with diligence and care keeping in mind the requirement of present and future generations. The principle of intergenerational equity binds the Government to hold the use of natural resources for future generation as well. The assignment by the Government for cultivation, therefore, has to serve the objectives of the State as above. 15.In the patta issued to the assignors of the petitioner, there was a prohibition of alienation for the initial period of 10 years. This restraint must be with an intention that the ## **`WPC 36643/2007`** ## **-:16:-** person who obtains assignment should cultivate the land for the initial 10 years. The point arises on lifting restrain from alienation, 'does a transferee is entitled to use the land for other purposes other than cultivation'? I must answer in negative. 16. As adverted above, in private law, positive obligations or covenants will not run with the land and will not bind subsequent assignee. In public law, the assignment itself was on public interest. The moment, the object of the public law is defeated, the assignment becomes revocable. The original assignment would not have been possible for any other purposes other than the purpose for which it was assigned. The purpose for the assignment would equally bind the patta holder as well as his assignee. This is the reflection of public trust doctrine. There is no requirement to have conditions in patta ## **`WPC 36643/2007`** ## **-:17:-** that the patta holder or its assignee should cultivate the land all the time. The very basis of such assignment was for cultivation. The patta holder or assignee if commits any act defeating the object of the assignment, is bound to restore the land to the assignor. 17.Admittedly, the present use of land is for commercial purposes. It is for personal gain and to subserve the private interest. Commercial purpose is not one on which the land can be assigned. The Government being a trustee is answerable to the public. The public can question if the Government had failed in its duties when it is found that the land is used for other purposes other than for it was assigned. The beneficiary of cultivation is public. That interest of the public is superadded in such assignment. Thus, even in the absence of statutory provisions or conditions in the patta, ## **`WPC 36643/2007`** ## **-:18:-** anyone can question such use of land for commercial purposes. 18.This Court, in fact, had considered use of land for commercial purposes by the assignee of a patta holder, who was assigned land for personal cultivation in **Haridas v. State of Kerala [2016** **(4) KLT 707]** and held that the assignee of original pattadhar cannot have any better claim conferred on him other than the one conveyed to the pattadhar by the assignment. The use of land for commercial purposes is a fraud on the State. The pattadhar or his assignee has a legal obligation to use the land for cultivation. 19. The learned Senior Counsel argued that the Government authorities have issued certificates to run the resort and, therefore, they are estopped from urging that the petitioner had violated the patta conditions. It was also argued that the Government have waived their ## **`WPC 36643/2007`** ## **-:19:-** right to proceed against the petitioner by acknowledging the acceptance of basic tax and conferring certificates relating to tourism. 20. The equitable principles relating to estoppel and waiver cannot have a bearing when the Government is acting as a trustee. This action to protect the interest of the State. No wrong can give rise to a right. The land belongs to the State. If the Government had failed in its duty to check illegal use of land that will not give rise to an equitable right to a wrongdoer. The principles of estoppel cannot be advanced to promote one's own wrong. This is not a case between the Government and the holder of the land. It is a matter between public interest and breach of trust by a person, who was in relation with the Government to promote the public interest. The principles of estoppel and waiver cannot be pressed against an action of the ## **`WPC 36643/2007`** ## **-:20:-** Government based on public policy. No action of the Government would bind them if it was against the public policy of the State. Therefore, the argument of the learned Senior Counsel that estoppel and waiver would apply as though it is an action questioning the action of the Government, is out of place. In the result, the writ petition is dismissed. No costs. Sd/- ## A.MUHAMED MUSTAQUE, JUDGE ms ## **`WPC 36643/2007`** ## **-:21:-** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1TRUE COPY OF THE APPLICATION DATED 28.08.1958 OF J.THAVAMANI FOR ASSIGNMENT OF LAND.** - **EXHIBIT P2TRUE COPY OF PATTA DATED 15.09.1965 ISSUED TO J.THAVAMANI FROM FILE No.L.A.25/64.** - **EXHIBIT P3TRUE COPY OF PATTA DATED 12.05.1970 ISSUED TO VARKEY ANTONY FROM FILE No.LA.48/64.** - **EXHIBIT P3(A) TYPED COPY OF EXT.P3** - **EXHIBIT P4TRUE COPY OF ORDER No. SCYB/8118 DATED 22.3.1996 FROM THE KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD.** - **EXHIBIT P5TRUE COPY OF COMMUNICATION No. GOIT/MAS/HTL/APL/3/95 (Ker.)DATED 19.5.1995 FROM GOVRNMENT OF INDIA, TOURIST OFFICE.** - **EXHIBIT P6TRUE COPY OF ASSESSMENT ORDER UNDER THE KERALA BUILDING TAX ACT, 1975 ISSUED TO THE PETITIONER DATED JANUARY 01.** - **EXHIBIT P7TRUE COPY OF THE CERTIFCATE OF CLASSIFICATION BY THE GOVERNMENT OF KERALA, TOURISM DEPARTMENT DATED 10.02.2004.** **EXHIBIT P8TRUE COPY OF STATEMENT SHOWING THE PAYMENT OF TAX, LICENCE FEE, PROPERTY TAX ETC.FOR THE YEAR 2006-2007.** ## **`WPC 36643/2007`** ## **-:22:-** - **EXHIBIT P9-** **TRUE COPY OF NOTICE NO.A2-1297/07 DATED 23.6.2007 ISSUED BY THE 3[rd] RESPONDENT.** - **EXHIBIT P10TRUE COPY OF EXPLANATION DATED 28.6.2007 SUBMITTED BY THE PETITIONER BEFORE THE 3[rd] RESPONDENT.** - **EXHIBIT P11TRUE COPY OF THE REPORT NO.G2-6659/07 DATED 23.6.2007 FROM THE TAHSILDAR UDUMBANCHOLA TO THE 3[rd] RESPONDENT.** - **EXHIBIT P12-** - **TRUE COPY OF ORDER No.A2-2782/2007 DATED 3.7.2007 OF THE 3[rd] RESPONDENT.** - **EXHIBIT P13TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 5.7.2007 FILED BY THE PETITIONER BEFORE THE 2[nd] RESPONDENT.** - **EXHIBIT P14TRUE COPY OF WRITTEN SUBMISSIONS DATED 14.11.2007 OF THE PETITIONER BEFORE THE 2[nd] RESPONDENT.** - **EXHIBIT P15TRUE COPY OF THE ORDER No.LR-J333823/2007 DATED 22.11.2007 OF THE 2[nd] RESPONDENT.** **RESPONDENTS EXHIBITS:NIL.** **//TRUE COPY//** **P.S.TO JUDGE**