M.C. GEORGE v State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN SATURDAY, THE 4[TH] DAY OF DECEMBER 2021 / 13TH AGRAHAYANA, 1943`** ## **`WP(C) NO. 16705 OF 2021`** ## **`PETITIONER:`** ``` M.C.GEORGE, AGED 72 YEARS, S/O. LATE M.C CHERIAN, RESIDING AT NO.55, LAVELLE ROAD, BANGALORE,PIN-560 001 ``` ``` BY ADVS. M.A.ABDUL HAKHIM JAGAN ABRAHAM M.GEORGE ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA, REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,PIN-695 001` - `2 THE DISTRICT COLLECTOR, MALAPPURAM DISTRICT, COLLECTORATE , MALAPPURAM,PIN-676 503` - `3 SUB REGISTRAR, OFFICE OF THE SUB REGISTRY, KARUVARAKUNDU, MALAPPURAM DISTRICT,PIN-676 523` - `4 TAHSILDAR, NILAMBUR TALUK, NILAMBUR,PIN-679 329` - `5 VILLAGE OFFICER, KERALS ESTATE VILLAGE, KERALA ESTATE P.O., MALAPPURAM DISTRICT,PIN-676 525` ``` BY ADVS ``` ``` SHRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL SHRI. JAFAR KHAN – SR GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC 16705/21 2 ## **`JUDGMENT`** The petitioner has approached this Court impugning Ext.P4 order of the District Collector, through which he has been now restricted, as a peremptory order, from selling his property, comprised of 257.79 Acres of land in Resurvey Nos. 182/7, 186/2, 187, 188/2 of Kerala Estate Village in Nilambur. 2. Sri.M.A. Abdul Hakkim learned counsel for the asserted petitioner, asserted that Ext.P4 is egregiously improper because it says that the property was originally held by a foreign company and that the State intends to file a Civil Suit for resumption of the same, but that no such action has been either initiated or completed as of now. He then argued that the restriction of sale of the property vide Ext.P4 cannot be countenanced in law in any manner, because, in Ext.P3 judgment, a learned Judge of this court has already declared that his client is at liberty to alienate his properties which are the same as those which are involved in WPC 16705/21 3 this case - and that if any such deeds are presented for registration, it will have to be acceded to by the competent Authorities. He thus contends that Ext.P4 is wholly improper, unlawful and unconstitutional and prays that the same be set aside, particularly because the District Collector appears to have used his powers under Section 120A of the Kerala Land Reforms Act (hereinafter referred to as the ‘KLR Act' for short), irregularly, solely to frustrate Ext.P3 judgment, which is evident because none of the statutory criteria for exercise of such power has been even whispered in the said order. 3. The afore submissions of the learned counsel for the petitioner were vehemently refuted by Sri.Jaffer Khan learned Senior Government Pleader, saying that Ext.P4 has been issued because the property in question was originally owned and possessed by a foreign company and that it was, thereafter, alienated by them illegally without sanction of law, which has now persuaded the Government to take appropriate action, WPC 16705/21 4 including by initiation of civil suits against such transactions. He then submitted that, in addition to this, any attempt to fragment the property, which is an Estate enjoying the protectional ambit of Section 81E of the Act is illegal and therefore, that the District Collector is within the jurisdiction to have invoked Section 120A of the ‘KLR Act’ to interdict such action. 4. Sri.Jaffer Khan went on to explain that the resolve of the Government against allowing fragmentation of the Estates/Plantations which enjoy the benefits under Section 81E of the Act, emanates from the affirmative declaration of a learned Division Bench of this Court in in One Earth One Life (Reg.No.S.246 of 1988) and Others v. State of Kerala and Others [2019(1) KLT 985], which has unambiguously held that a combined reading of Section 81(4) and explanation of I and II of Section 87 of the ‘KLR Act’ would render it perspicuous that the fragmentation of an Estate will have to be treated as ‘conversion of plantation to some other category of land’. He thus submitted WPC 16705/21 5 that the directions of the District Collector in Ext.P4 are guided exclusively by the afore view of this Court because the transactions now attempted by the petitioner is certainly to circumvent the provisions of the ‘KLR Act’. 5. Before I speak affirmatively on the rival contentions as afore, I am certainly bound to record that, with respect to the properties in the same Estate and which are admittedly enjoying the benefits under Section 81E of the Act, a series of judgments were delivered by this Court including in WP(C)No.20675/2019 and connected matters, wherein, after noticing the afore submissions, transactions of sale were allowed leading to the transfer of Registry in the name of the purchasers, however, making it clear that even if the Estate is purchased in tranches, the buyer will have to maintain it in the same nature as it was bought by him and that any violation of this would enable the competent Authorities to take necessary steps for its resumption. In the aforesaid judgment, which has been followed consistently in WPC 16705/21 6 several judgments thereafter, a learned Judge of this Court has recorded that the learned Government Pleader admits that One Earth One Life (supra) has been taken before the Honourable Supreme Court and stayed. 6. Therefore, Sri.M.A.Abdul Hakkim is fully justified in alleging and asserting that his client alone is now discriminated, while every other portion of the Estate has already been allowed to be sold, including in small bits and pieces of even a few Cents. 7. Of course, when I say as above, I am aware of the submissions of Sri.Jaffer Khan that the record of stay of One Earth One Life (supra) in the judgment in WP(C)No.20675/2019 and connected matters, is not accurate because the Honourable Supreme Court has only ordered 'status quo'. 8. The afore narrative of the rival positions makes it luculent that though there are no specific statutory embargos against the selling of the Estate in tranches, a learned Division Bench of this Court, in One Earth One Life (supra), took the view WPC 16705/21 7 that "fragmentation of a plantation would have to be seen as a of conversion under the Act. However, it is admitted that this judgment is now pending before the Honourable Supreme Court and that an order of status quo has been ordered therein, which would only mean that the property involved in that case has been permitted to be maintained in the same status, as it were at the time when the Special Leave Petition was admitted, without any coercive action being taken against it or its purchasers, under the stipulations of the ‘KLR Act’. The directions in One Earth One Life (supra) thus remain effectively stayed as correctly recorded in the judgment in WP(C)No.20675/2019. 9. That said, since this Court has already permitted sale of the extents involved in the same Estate even in small tranches, I do not think it will be justified to pick out the petitioner alone and deny him the said benefit, though I am certain that even the purchasers are obligated to maintain the extents to be purchased by them in its same nature as on today, namely only as a WPC 16705/21 8 plantation, without causing any change to it or even to obtain the benefit under Section 81(4) of the ‘KLR Act’, until such time as the Honourable Supreme Court delivers judgment in One Earth One Life (supra). 10. I am sure that by adopting the afore course, the rival interest of the State on one side and that of the petitioners would be sufficiently subserved because, after all, by the term ‘fragmentation’, what is really feared is the breaking down of the Estate into small pieces and then being constructed upon taking advantage of Section 81(4) of the Act, thus altering its entire nature. Since One Earth One Life (supra) is pending before the Honourable Supreme Court with an order of status quo, I am certain that even the purchasers will be enjoined to maintain the Estate involved in this case in the same manner as it is available today, with only plantation activities being permitted therein, without any construction made on it, including under the umbra of Section 81(4) of the Act. WPC 16705/21 9 In the result, I allow this Writ Petition and set aside Ext.P4 order; however, ordering that the purchasers of the property from the petitioner will be obliged to maintain the extents coming into their possession exclusively as an Estate/Plantation, as it is appearing now, and that they will be entitled to seek the benefit of Section 81(4) of the ‘KLR Act’ and only after the Honourable Supreme Court delivers judgment in the Civil Appeal pending against One Earth One Life (supra). Needless to say, if the Honourable Supreme Court is to confirm One Earth One Life (supra), then necessary action can be taken by the Authorities in terms of the declarations against the properties in question, following due procedure. ``` Sd/- ``` ``` RR ``` ## **`DEVAN RAMACHANDRAN`** ## **`JUDGE`** To be spoken to on 16.12.2021 This matter was heard by me and a detailed judgment WPC 16705/21 10 dictated on 04.12.2021. Thereafter, the learned Government Pleader – Sri.Jaffer Khan, submitted that he has three more legal issues to be presented, which could not be done at the time when the matter was finally disposed of. 2. It is in such circumstances, that this matter has been listed today. 3. Sri.Jaffer Khan submitted that, as per Section 72(1) of the ‘KLR Act’, the extents of property claimed by the petitioner, in excess of 30 Acres, is to be legally construed to be vested with the Government, since what the petitioner enjoys are only leasehold rights over it. He submitted that, therefore, the request of the petitioner for permission to sell the property in excess of 30 Acres cannot be acceded to. 4. As the second contention he submitted that, under the mandate of Section 128 of the ‘KLR Act’, the Government had issued an order dated 07.03.2013, wherein, it has been stated that, under the stipulations of Section 81(4) thereof, fragmentation of WPC 16705/21 11 Estates cannot be permitted except to an extent of 5% of it for being converted to be used for the purposes mentioned in it. 5. As the third contention, Sri.Jaffer Khan submitted that this Writ Petition is not maintainable because what has been sought for is an anticipatory cause of action. 6. I must say that I cannot find favour with any of the afore submissions for the reasons that I presently state. 7. For the first, as regards Section 72(1) of the ‘KLR Act’, this is not a contention which has been, even sotto voce, indicated in any of the counter pleadings. That apart, even if the Government has a case that under Section 72(1) no extents of over 30 Acres can be held by the petitioner under leaseholds right, it is for them to initiate necessary action to resume the land on such assertion. They cannot impel a collateral contention in this Writ Petition, asserting that the Estate, in excess of 30 Acres, has already been vested in the Government, especially after having accepted Ext.P3 judgment without challenge. This is additionally WPC 16705/21 12 improper at this stage because as is also specifically conceded to by the learned Government Pleader - the property in question has been allowed to be in possession of the petitioner and there was not even a whisper in the past or even in Ext.P4 that he cannot sell whatever rights he has over the entire extent, except saying that it cannot be fragmented. I am, therefore, of the firm view that if the Government has any such contention over the property, hinged as Section 72(1) of the ‘KLR Act’, they are certainly at liberty to initiate necessary action, but for that reason alone I do not think that my judgment requires to be altered. 8. As regards the Government Order dated 07.03.2013 is concerned, it is only one which clarifies the intent of Section 81(4) of the ‘KLR Act’ which I have already dealt with in the judgment. 9. As far as the final contention, that this Writ Petition is not maintainable because the petitioner has edificed his case on an anticipated cause of action is concerned, I am afraid even this cannot appeal to me because it is on record, and as is WPC 16705/21 13 unequivocally admitted, that the petitioner had not been allowed to register his lands, because of Ext.P4 and hence a challenge to it can never be construed as anticipated. 10. To conclude, as I have said very clearly in the judgment, this Court has only followed the earlier judgments and orders, which have been, concededly, fully accepted by the Government. In the afore circumstances, I do not think that any alteration to the judgment is necessary. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` WPC 16705/21 14 ## **`APPENDIX OF WP(C) 16705/2021`** ``` PETITIONER EXHIBITS Exhibit P1A PHOTOSTAT COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 28.03.2017 IN WPC NO.36009/2015 Exhibit P2A PHOTOSTAT COPY OF THE ORDER NO.GO(RT) NO.4963/2017/RD DATED 21.11.2017 OF THE 1ST RESPONDENT Exhibit P3A PHOTOSTAT COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 11.12.2018 Exhibit P4A PHOTOSTAT COPY OF THE ORDER NO.DCMPM/11414/2019-B7 DATED 11.6.2021 ISSUED BY THE 2ND RESPONDENT Exhibit P5A PHOTOSTAT COPY OF THE LEGAL OPINION NO.SS54/2013/AG DATED 13.12.2013 PREPARED BY THE ADVOCATE GENERAL OF KERALA STATE,ALONG WITH THE COVERING LETTER UNDER THE RTI ACT DATED 30.09.2014 Exhibit P6A PHOTOSTAT COPY OF THE REPORT OF LAND REVENUE COMMISSIONER NO.LR (K4) 33119/H DATED 03.03.2015 RESPONDENTS EXTS EXT R2ATRUE COPY OF THE JUDGMENT IN MATHEW K JACOB AND ANOTHER VS DISTRICT ENVIRONMENTAL IMPACT ASSESSMENT 2018(5) KHC 487. EXT R2BTRUE COPY OF THE JUDGMENT IN ONE EARTH ONE LIFE VS STATE OF KERALA AND OTHERS, 2019 KHC, 221 TRUE COPY OF THE JUDGMENT IN STATE HUMAN EXT R2 CRIGHTS PROTECTION CENTRE, TRISSURE & ANOTHER VS STATE OF KERALA AND OTHERS 2009(3) KHC 682 EXT R2 DTRUE COPY OF THE JUDGMENT IN NAZAR K.H VS MATHEW K JACOB AND OTHERS 2019 4 KHC 919 ```