OP(C) Nos.2989 & 3508 of 2011, High Court of Kerala at Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 9TH DAY OF SEPTEMBER 2013/18TH BHADRA, 1935** **OP(C).No. 2989 of 2011 (O )** **---------------------------** **AGAINST THE ORDER/JUDGMENT IN OS NO.125/2007 OF SUB COURT, PATHANAMTHITTA** **.....** ## **PETITIONER(S):** **--------------------------** **1. K.JAGADEESACHANDRAN NAIR, SRIVILAS, 60/2546, KOMAROTH LANE, AZAD ROAD, KOCHI-17.** **2. J.KRISHNA KUMAR, SRIVILAS, 60/2546, KOMAROTH LANE, AZAD ROAD, KOCHI-17.** ## **3. LATHA PRADEEP,** - **SRIVILAS, 60/2546, KOMAROTH LANE, AZAD ROAD, KOCHI-17.** ## **4. J.PREMCHAND,** - **SRIVILAS, 60/2546, KOMAROTH LANE, AZAD ROAD, KOCHI-17.** **BY ADVS.SRI.T.C.MOHANDAS SRI.T.M.SUNIL SRI.JAISHANKAR V.NAIR SMT.S.CHITHRA** ## **RESPONDENT(S):** **----------------------------** **1. E.K.MAMOMOHANAN PANDARATHIL, S/O.KIRIYARU EASANARU PANDARATHIL, EDAVANA MADOM, PERISSERI MURI, PULIYOOR VILLAGE IN CHEGANNUR TALUK, PATHANAMTHITTA DISTRICT - 689 121.** **2. DEVIDASAN PANDARATHIL, S/O. KIRIYARU EASANARU PANDARATHIL, EDAVANA MADOM, PERISSERI MURI, PULIYOOR VILLAGE IN CHEGANNUR TALUK, PATHANAMTHITTA DISTRICT - 689 121.** **..2/-** **Kss** **..2....** ## **OP(C) NO.2989/2011 (O)** **3. CHANDRIKADEVI ANATHERJANAM, D/O.KIRIYARU EASANARU PANDARATHIL, EDAVANA MADOM, PERISSERI MURI, PULIYOOR VILLAGE IN CHEGANNUR TALUK, PATHANAMTHITTA DISTRICT 689 121.** **4. NARAYANARU PANDARATHIL** - **S/O.E.K.GIRISWARU PANDARATHIL, EDAVANA MADOM, PANNIVIZHA, ADOOR, PATHANAMTHITTA DISTRICT 689 645.** ## **5. KRISHNA PILLAI CHELLAPPAN PILLAI ( D I E D)** - **KUNJUMANGALASSERIL VEEDU, PAYIPPADU MURI, THRIKKODITHANAM VILLAGE, CHENGANNASSERY TALUK, KOTTAYAM DISTRICT 686 105.** **6. THE MALAYALAM PLANTATION LTD, QUILON, REPRESENTED BY HARISONS MALAYALAM LTD., WILLINGTON ISLAND, COCHIN 682 011.** **7. P.K.RAJASEKHARAN PILLAY, MAYOORAN HOUSE, KUNDANNOOR VILLAGE, VADAKKANCHERI TALUK, THRISSUR DISTRICT.** ***ADDL.R8 IMPLEADED:** - **R8. GOSPEL OF ASIA, MANJADI, THIRUVALLA, REPRESENTED BY ITS PRESIDENT AND METROPOLITAN, MOST REV.DR.K.P. YOHANNAN, METROPOLITAN BISHOP, REPRESENTED THROUGH HIS POWER OF ATTORNEY HOLDER, JACOB POTHEN, ADMINISTRATOR GOSPEL FOR ASIA, MANJADI AND THIRUVALLA.** - **(*ADDL.R8 IMPLEADED AS PER ORDER DTD. 9/09/2013 IN I.A.NO.3278/2013)** **R4 BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX R6 BY SRI.A.K.JAYASANKAR NAMBIAR, SENIOR ADVOCATE ADVS. SRI.E.K.NANDAKUMAR** **SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH MENON SRI.M.GOPIKRISHNAN NAMBIAR R7 BY SRI.R.D.SHENOY,SENIOR ADVOCATE ADVS. SRI.K.V.SOHAN SRI.CHERIAN GEE VARGHESE ADDL.R8 BY ADV. SRI.P.HARIDAS** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07/03/2013, ALONG WITH OP(C)NO.3508/2011,THE COURT ON 09/09/2013 DELIVERED THE FOLLOWING:** **Kss** ## **OP(C) NO.2989/2011 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 TRUE COPY OF THE ORDER DTD. 4.4.1979 IN C.P.25/1978 OF THIS HON'BLE COURT.** **EXT.P2 TRUE COPY OF THE ORDER DTD.19.9.84 IN CP.13/1983 OF THIS HON'BLE COURT.** ## **RESPONDENTS' EXHIBITS:** **R6(A): COPY OF THE PLAINT DTD. 30/07/2007 IN O.S.NO.125/2007 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE, PATHANAMTHITTA.** **R6(B): COPY OF THE WRITTEN STATEMENT DTD. 15/02/2008 FILED BY THE 6TH DEFENDANT IN O.S.NO.125/2007 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE, PATHANAMTHITTA.** **R6(C): COPY OF THE ADDITIONAL WRITTEN STATEMENT DTD. 11/10/2011 FILED BY THE 6TH DEFENDANT IN O.S.NO.125/2007 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE, PATHANAMTHITTA.** ## **/TRUE COPY/** ## **P.S.TO JUDGE** ## **Kss** ## “CR” ## Thottathil B.Radhakrishnan ## & ## A.V.Ramakrishna Pillai, JJ. = = = = = = = = = = = = = = = = = = = = = = = = OP(C).Nos.2989 & 3508 of 2011 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 9[th] day of September, 2013 ## Judgment ## Thottathil B.Radhakrishnan, J. - 1.OP(C).No.2989 of 2011 is filed invoking Article 228 of the Constitution of India seeking that O.S.No.125 of 2007 pending before the Sub Court, Pathanamthitta be withdrawn to this Court for the purpose of deciding the constitutional question stated to have arisen therein. - 2.OP(C).No.3508 of 2011 is filed by the State of Kerala invoking Articles 227 and 228 of the Constitution of India seeking that the records leading to and pending consideration before the Taluk Land Board, Vythiri, 'TLB', for short, as OPs2989 & 3508/11 -: 2 :- TLB(SW)37/81 be called for and quashed as the same is non est in law and that upon transfer of that proceedings, the question of law raised by the State under Article 228 of the Constitution of India be decided upholding the plea of the Government based on public policy and in public interest. A declaration that large extent of lands held by the respondent in that original petition is liable to be forfeited under the Kerala Escheats and Forfeitures Act, 1964, for short, 'Escheats Act', is also sought for. The State has also sought for a decision, as if on a question of law, that the holding by the predecessor in interest of the respondent in that original petition, of large extent of land throughout the State of Kerala is in gross violation of land laws and Foreign Exchange Regulation Act, 1973, for short, FERA', and that is a fraud on the Constitution of India warranting immediate action on the part of the State in public interest and based on public policy as enjoined by under Article 296 of the OPs2989 & 3508/11 -: 3 :- Constitution of India. 3.The petitioners in OP(C).No.2989 of 2011 contend that the Preamble to the Constitution and Articles 38 and 39 among the Directive Principles of State Policy uphold that the lands in India are for the exclusive benefits of the people of India and not for any foreign citizen or any foreign company and that the respondents in that original petition are not entitled to the benefit of the Kerala Land Reforms Act, 1963, 'KLR Act', for short. It is further contended by the petitioners that the respondents being part of a company registered in England, can in no way claim the benefits of the KLR Act. It is pointed out that such questions amount to substantial questions of law of interpretation of Constitution and hence, the original petition instituted by them is filed seeking reliefs under Article 228 of the Constitution of India. 4.The plea of the State in OP(C).No.3508 of 2011 OPs2989 & 3508/11 -: 4 :- revolves on the stand of the Government that the lands in the possession of the respondents are not those to which the benefit of the KLR Act inures and that even by a report of a High Level Committee constituted by the Government, the lands are liable to be got back from the respondents. The TLB proceedings referred to above are criticised as without jurisdiction and vitiated by fraud and misrepresentation. The declarant company is, according to the State, a foreign company and therefore, not entitled to file a declaration under the KLR Act. Therefore, it is contended that the proceedings initiated in respect of the lands claimed by the respondents in various districts of the State of Kerala are void ab initio. According to the State, the provisions of the KLR Act apply only to a citizen born in India or a company incorporated in India and therefore, ceiling returns under the provisions of that Act can be filed only by such persons. The initiation of proceedings before the TLB is criticised and it is pleaded that the OPs2989 & 3508/11 -: 5 :- entire proceedings were initiated in respect of Government lands held by a foreign company either on lease or indentures executed by erstwhile Maharaja of Travancore and Cochin and Malabar States. The further plea of the State is that the facts that the entire holdings were conditional and that the proprietorship of the land vested with the Government were deliberately suppressed before the TLB by the declarant company. It is also pleaded that the TLB has proceeded with the case in gross violation of the provisions of the KLR Act, FERA and Escheats Act. TLB is criticised of having failed to note that no foreign company is entitled to any holding in the State of Kerala without permission of the Reserve Bank of India and without valid licence issued as per the provisions of the FERA. The TLB proceedings are criticised as void ab initio. The documents of title claiming large extent of land are impeached as invalid in law in so far as the title deeds held by the respondents are in gross violation of the relevant laws prevalent in the State of OPs2989 & 3508/11 -: 6 :- Kerala. The scheme of amalgamation as regards the respondent company is also criticised. It is further pleaded that the act of respondents is deceptive and fraudulent. It is stated that the situation is one which warrants interference under Article 227 of the Constitution of India and the substantial question of law in relation to any Government land by a foreign company in gross violation of land laws of the State is to be dealt with under Article 228 of the Constitution. It is pointedly suggested that the question arising for decision under Article 228 of the Constitution of India is as follows: “Are not large extents of land held by a foreign company in gross violation of laws in the State of Kerala and Foreign Exchange Regulation Act fraudulently against public interest, public policy and hence constitutes fraud on the Constitution of India warranting immediate action of resumption on the part of the State as protected OPs2989 & 3508/11 -: 7 :- under Article 296 of the Constitution of India?” - 5.The respondents, including those impleaded as additional respondents, have filed counter affidavits and/or have addressed arguments in opposition to the original petitions. - 6.Heard the learned Special Government Pleader for Revenue, the learned counsel for the petitioners in OP(C).No.2989 of 2011, the respective learned senior counsel for the respondent company and other respondents in the original petitions. - 7.The learned Special Government Pleader argued that having regard to the clear infraction of the provisions of the KLR Act and the ineligibility of the respondent company to hold lands in India in terms of the provisions of FERA, the Constitution stands violated. It is accordingly pointed out that the TLB proceedings are void ab initio and deserve to be quashed. It is also OPs2989 & 3508/11 -: 8 :- argued that the TLB proceedings are vitiated by fraud and mala fides, which vitiates all solemn acts. Reference was made to Narendra Bahadur Tandon v. Shankar Lal [(1980) 2 SCC 253], Sheo Nand v. Deputy Director of Consolidation [(2000) 3 SACC 103], State of Chhattisgarh v. Dhirjo Kumar Sengar [(2009) 13 SCC 600] and Biswanath v. Prafulla Kumar [AIR 1988 Calcutta 275]. It was also argued that dissolution of a company which is a tenant results in vesting of tenancy in the State Government by escheat or as bona vacantia in terms of Article 296 of the Constitution of India. It was further argued that larger public interest requires intervention of this Court in exercise of authority under Articles 227 and 228 of the Constitution of India to set at naught the illegalities being committed by the respondent company under the guise of the proceedings pending before the TLB and also on the basis of the title deeds that they profess to hold. 8.Learned counsel for the petitioners in OP(C). OPs2989 & 3508/11 -: 9 :- No.2989 of 2011 referred to Aswathiamma v. Taluk Land Board [1988 (1) KLT 33], Dalmia Cement (Bharat) Ltd. v. Union of India [(1996) 10 SCC 104] and Sewa Ram v. Union of India [AIR 1997 SC 2620] to argue that the respondent company is not entitled to any right in terms of the provisions of KLR Act since the very object of that Act is traceable to Articles 38 and 39 of the Constitution, which visions exclusively to support the rights of Indian citizens in the Indian soil and that on acquiring the citizenship of a foreign Nation, the right as a tenant in an Indian soil will be lost. 9.Learned senior counsel appearing for the respondent company referred to Sahara India Real Estate Corpn. Ltd. v. Securities & Exchange Board of India [AIR 2012 SC 3829], State of Gujarat v. Gujarat Revenue Tribunal Bar Assn. [(2012) 10 SCC 353], Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675], Shalini Shyam Shetty and another v. Rjendra Shankar Patil [JT 2010(7) SC 514] Jai OPs2989 & 3508/11 -: 10 :- Singh v.MCD [(2010) 9 SCC 385], Mani Nariman Daruwala v. Phiroz N.Bhatena [(1991) 3 SCC 141] Khimji Vidhu v.Premier High School [(1999) 9 SCC 264], Union of India v. Era Educational Trust [(2000) 5 SCC 57], Seema Arshad Zaheer v. Municipal Corpn. of Greater Mumbai [(2006) 5 SCC 282], Govt. of A.P. v. T.Krishna Rao [AIR 1982 SC 1081], St. of Rajasthan v. Smt.Padmavati Devi (Dead) by LRs. & Ors. [JT 1995(5) SC 481], Carona Ltd. v. Parvathy Swaminathan & Sons [(2007) 8 SCC 559] and Bombay Dyeing & Manfg. Co. v. State of Bombay [AIR 1985 SC 328], to argue, among other things, as to the limit of jurisdiction under Article 227 of the Constitution and pointedly state that the questions that could fall under Article 228 are only substantial questions of law as to the interpretation of Constitution, the determination of which is necessary for the disposal of the case. He argued that no substantial question of law as to the interpretation of the Constitution is even pointed out and what has been argued, at best, OPs2989 & 3508/11 -: 11 :- could only be suggestive of alleged infraction of the laws and the provisions of the Constitution. Such pleas do not give rise for any substantial question of law as to the interpretation of the Constitution, it is pointed out. He further argued that for a matter to fall within Article 228, the suit or case must actually be pending in a court subordinate to the High Court and that the said Article has no application as regards cases pending before the inferior tribunals which are not courts. Reference was made in this regard - to Jugal Kishore v. Sitamarhi Central Co op. Bank [AIR 1967 SC 1494]. He, therefore, says that the requisite conditions for invoking Article 228 do not exist. Reference was also made to Sebastian v. Mathai [2005(4) KLT 791] to point out that even persons who are not citizens of India could hold immovable property, however that, such questions do not arise for consideration in the case in hand. He pointedly argued that if the case of the State is that it has absolute title to the property and that the respondent company OPs2989 & 3508/11 -: 12 :- is in occupation of Government lands, TLB proceedings are not decisive since no issue of title of the company over the lands in question was ever decided by the TLB and therefore, if the case of the Government is that the company does not have any title over the lands declared by it, then that is an issue wholly unconnected with the TLB proceedings. The jurisdiction under Article 227 is supervisory and not appellate, and hence it is not open to this Court to upset pure findings of facts, it is argued. 10.Learned senior counsel appearing for the additional respondents also argued on the limited scope of interference under Article 227 of the Constitution of India and pointed out that this is not one of those cases where this Court would invoke the jurisdiction even in relation to the TLB proceedings which had already undergone one round of litigation in this Court in a civil revision petition under Section 103 of the KLR Act. The learned senior counsel referred to OPs2989 & 3508/11 -: 13 :- V.M.Narayanan Nair v. The State of Kerala [1970 KLJ 638], State of West Bengal & Ors. v. Samar Kumar Sarkar [2009(5) Supreme 517] and Sudevanand v. State [(2012) 3 SCC 387]. He further made reference to State of J. & K. v. Ganga Singh [AIR 1960 SC 356] to argue that where the parties do not raise any question as to the interpretation of a provision of the Constitution, it is not possible to hold that the case involves any question of law as to the interpretation of the Constitution. The requirement that it is only a substantial question of law as to the interpretation of the Constitution that could generate the jurisdiction to invoke Article 228 of the Constitution is specifically pointed out by stating that when matters relating to interpretation of any of the provisions of the Constitution or its applicability stands covered by precedent law, there is no question of any substantial question of law arising in relation to the interpretation of the Constitution, as such. The questions, OPs2989 & 3508/11 -: 14 :- then, would get confined to the application or judicial scrutiny as to whether any constitutional principle or provision has been violated through a statutory provision or by any act or omission which is put to adjudication, it is argued. Making reference to Bhagwan Swarup v. State of Maharashtra [AIR 1965 SC 682], Ramaraghava Reddy v. Seshu Reddy [AIR 1967 SC 436], P.Leslie & Co. v. V.O.Wapshare [AIR 1969 SC 843] and Sheo Nand (supra), it is pointed out that the question of escheat and the right of the State to take property under Article 296 of the Constitution by escheat or lapse or as bona vacantia, do not have any application and cannot be initiated for adjudication in these cases. - 11.At the outset, we may notice that what we have now before us is not something new. We say so because, the TLB proceedings referred to above had led to a civil revision petition under the KLR Act. That matter was decided years ago by this Court elaborately considering the rival OPs2989 & 3508/11 -: 15 :- contentions of the company and the State. There was an order of remand, regulated by the directions contained therein. At this distance of time, this Court cannot be compelled to exercise jurisdiction under Article 227 and undo the effect of any revisional order issued by this Court, more particularly, when the plea of the State is that the respondent company does not hold title to the property and that the land in the possession of the respondent company is Government land. As rightly argued by the learned senior counsel appearing for the company, such issue is wholly outside the realm of the TLB proceedings because, no question as to the title of the respondent or the State is or was subject matter of those proceedings. Nor did the TLB have the jurisdiction to enter a finding on any such contention. 12.Be that as it may, in so far as Article 296 of the Constitution is concerned, that provision, in its essence, is to the effect that any property OPs2989 & 3508/11 -: 16 :- that would have accrued by escheat or lapse or as bona vacantia, in favour of the predecessor of the Union or any State under the Constitution of India shall, vest in the appropriate State or the Union as stated in that Article. This is simply the effect of that constitutional provision. Therefore, if under the law relating to escheat, lapse or the doctrine of bona vacantia, there is any piece or parcel that could have been accounted as accrued to any sovereign power before the coming into force of the Constitution of India, in the territory to which the Constitution applies, that piece or parcel will come to the Union or the State concerned. This is not a right which operates independent of the scheme of the Escheats Act and other provisions which provide due procedure as established by law for taking into possession even such lands, if at all they fall within the canopy of escheat, lapse or bona vacantia. Therefore, it would not be within the domain of this Court either under Article 227 or under Article 228 of the OPs2989 & 3508/11 -: 17 :- Constitution to consider any issue as to whether there was escheat in favour of the State of Kerala. 13.As regards the provisions of the KLR Act, the constitutional setting in which that is made and sustained, does not give rise to any substantial question of law as to the interpretation of Constitution to be decided in an application under Article 228 of the Constitution because, the fundamental plea of the State is a challenge to the respondent company holding the property and claiming rights, including under the KLR Act. The contention of the State is that the claim of the respondent company under the KLR Act is unfounded on the provisions of that Act. That is not a constitutional issue at all. At any rate, that does not amount to a substantial question of law as to the interpretation of Constitution. In the backdrop of the provisions of the Preamble to the Constitution and the different provisions in the Directive Principles of State Policy qua the OPs2989 & 3508/11 -: 18 :- fundamental rights in Part III of the Constitution, precedent law has covered an enormous field, as have been considered until now, and no substantial question of law as to the interpretation of the Constitution arises for decision in the context of the plea raised by the State or by the petitioners in OP(C).No.2989 of 2011, in that regard. The effectuation of the constitutional provision through the statutory mechanism of the KLR Act may give rise to issues as to the constitutional validity of that statute or the constitutional limits within which that could operate. The object sought to be achieved by the statute can be understood in the backdrop of the constitutional provisions even in the process of interpreting and applying the fundamental provisions contained in that piece of legislation. The persons, rights or properties which fall within the provisions of the KLR Act are matters that have to be dealt with in terms of the contents of that Act. Even if such consideration may, in exceptional cases, call for OPs2989 & 3508/11 -: 19 :- a look into the constitutional situs and the regulatory constitutional provisions, that does not give rise to a substantial question of law as to the interpretation of the Constitution on the basis of the pleadings raised in these cases. The plea that Article 228 needs, therefore, to be invoked, hence cannot be sustained. Of equal importance is the submission made by the learned senior counsel appearing for the respondent company that Article 228, if at all, can be invoked only as regards a case pending in a court subordinate to the High Court. TLB is a tribunal constituted under a statute. It is not a court subordinate to the High Court for the purpose of Article 228 of the Constitution of India. 14.If the State Government has the clear assertion that the provisions of FERA are violated as regards the title to the properties in the possession of the respondent company or its assignees, intruders etc., the provisions to be invoked and the jurisdictions which it may have OPs2989 & 3508/11 -: 20 :- to invoke, have to be appropriately addressed and such questions cannot be taken to be put up, for a short in one go, under the cover of Articles 227 and 228 of the Constitution. If questions of public policy and public interest are involved, the bare minimum is that appropriate action in accordance with the Rule of law has to follow. There cannot be any short cut by invoking supervisory jurisdiction under Article 227 of the Constitution or the very limited constitutional jurisdiction under Article 228 of the Constitution, to decide on substantial question of law as to the interpretation of the Constitution. 15.For the aforesaid reasons, these original petitions fail. In the result, these original petitions are dismissed. All interlocutory orders as against the respondents will stand discharged, and security, guarantee, bank guarantee, if any, OPs2989 & 3508/11 -: 21 :- provided by the respondents in obedience to any of the directions issued in these original petitions will stand released and discharged by the effect and force of this judgment, forthwith. Sd/Thottathil B.Radhakrishnan Judge Sd/A.V.Ramakrishna Pillai Judge Sha/