OP(C).No.819 of 2018 AGAINST THE ORDER/JUDGMENT IN OS 574/2009 OF PRINCIPAL MUNSIFF COURT, KOLLAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 30TH DAY OF JULY 2019 / 8TH SRAVANA, 1941** ## **OP(C).No.819 of 2018** **AGAINST THE ORDER/JUDGMENT IN OS 574/2009 of PRINCIPAL MUNSIFF COURT, KOLLAM** ## **PETITIONER/JUDGMENT DEBTOR:** **KERALA STATE CASHEW DEVELOPMENT CORPORATION LTD. CASHEW HOUSE, MUNDAKKAL, KOLLAM - 691 001. REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADVS. SRI.P.K.SURESH KUMAR (SR.) SRI.VIPIN P.VARGHESE, SC, KERALA STATE CASHEW DEVELOPMENT CORPORATION LTD.** ## **RESPONDENTS/DECREE HOLDER:** **1 D.SUMATHY W/O. SIVADASAN, RESIDING AT JAYANTHI HOUSE, NADAKKAVU, CUTCHERY VILLAGE, KOZHIKODE FROM KIZHAKKEVILA MEKKA VEEDU, MANGADU VILLAGE, KOLLAM, PIN - 691 001. 2 JAYASREE SIVADASAN D/O. D. SUMATHY, RESIDING AT JAYANTHI HOUSE, NADAKKAVU, CUTCHERY VILLAGE, KOZHIKODE TALUK, PIN - 673 001.** **3 RAJASREE SIVADASAN D/O. D.SUMATHY, RESIDING AT JAYANTHI HOUSE, NADAKKAVU, CUTCHERY VILLAGE, KOZHIKODE FROM KIZHAKKEVILA MEKKA VEEDU, MANGADU VILLAGE, KOLLAM, PIN - 691 001.** ## **BY ADV. SRI.ARUN BABU** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22.07.2019, THE COURT ON 30.07.2019 PASSED THE FOLLOWING:** O.P(C).819/18 2 ## **JUDGMENT** Original petitioner is the judgment debtor in E.P.No.163 of 2014 in O.S.No.574 of 2009 of Principal Munsiff's Court, Kollam. Respondents are the decree holders. 2. The decree was for recovery of 34.5 cents of land in survey No.2961/A of Eravipuram village, with structures therein. It was taken on lease by the petitioner herein from the respondents by lease deed dated 01.02.1975 along with appurtenant lands by separate documents. An item of 1 Acre 3 cents in Survey No.2960/1/2 and another item of 23 cents in Survey No.2950/C with factory building situated therein were also taken on lease by separate lease deeds. The factory and ancillary buildings are situated in all the three items of the properties which was lying contiguously. 34.5 cents of land in Survey No.2961/A was ordered to be recovered by the decree holders. 3. In execution of the decree, petitioners herein contended that, by virtue of the Kerala Cashew Factories (Acquisition) Amendment Act, 2009 (hereinafter referred to the “Act of 2009”), the property vested with the Government and cannot be delivered to the decree holders. By a judgment of this Court in O.P(C).No.50 of 2016, the executing court was directed to consider the impact of the above Act on the execution proceedings before proceeding with the execution. O.P(C).819/18 3 4. The execution court, on the basis of the available materials and commission report, found that a building ancillary to the cashew factory was situated in the property and fell within the scope of the Act. However, it was held that the Act, though invoked by the Government, has not being notified and hence, at present, execution cannot be resisted by the judgment debtors. Overruling the objections of the judgment debtor, delivery was ordered. This is assailed in this original petition. 5. Learned senior counsel for the petitioner herein contended that the court below did not correctly evaluate the impact of Act of 2009. It was stated that, under the Act, the property stood vested with the Government by virtue of Sec.3B, which referred to it as item 14 in the schedule-II. The Government had initiated proceedings for issuance of notification under the Act, for transferring it to Government. Since the machinery for it has been set in motion, no decree can be executed contrary to the Act, in view of the non obstante clause in section 3B, which overrides all the judgments and decrees. To substantiate the contention, the learned senior counsel referred to Ext.P4, P5 and a letter dated 21.06.2018, produced along with I.A.No.2 of 2019. The above documents show that the Government had arrived at a finding that the above property was essential for the running of the establishment and steps were being taken to acquire the land. O.P(C).819/18 4 6. It seems that, by virtue of Ext.P4 notification, process was initiated. It was contended by the learned senior counsel for the judgment debtor that the land was lying as a contiguous one and all the structures situated in the decree schedule properties were utilized in connection with the activities of the factory and was not separable. It was contended that the Commissioner had found that, it was used by some of the employees. It was further contended that, once the process of Government notification was initiated, the property cannot be delivered. 7. Repelling this contention, court below had held that, decree schedule property has been conveyed by Ext.A2 lease deed dated 13.03.1974, which was lying as a compact land with the other properties. Court relying on Ext.C1 report of the Commissioner and oral evidence of the Commissioner as CW1 and that of the Surveyor as DW1 held that the decree property consisted of a hall and old building and other structures. Referring to section 2(b) of the Act, the Court held that, definition of the cashew factory was wide enough to take in any land, even vacant land used for or in connection with the cashew factory. However, it was held that, under section 3(b) of the Act, only by virtue of a separate Government notification, published in gazette, the property will stand transferred to and vest in the Government. Such a notification has not been issued, it was held. O.P(C).819/18 5 8. As mentioned above, the decree schedule property is 34.5 cents in Survey No.2961/A. The contention of the decree holder was that, though the Act purports to take over the factory as well as adjacent appurtenant land, the property covered by the decree does not take in the factory building. It was further contended that, even if the Act is applicable to the concerned factory, the property covered by the present decree was not liable to be acquired. It was also contended that the property does not fall within the ambit of Kerala Cashew Factories Acquisition Act. It was further contended that, though the lands were lying as contiguous plots, separate plots were given in lease by separate documents and in the decree schedule property, only certain structures were situated and not the factory. 9. Evidently, sec.13 provides that Government “by order published in gazette may declare that the factory shall stand transferred to and vest in the Government”. Vesting will take place only if the order is published in the official gazette. Though the documents produced by the petitioner show that the Government had initiated some process long back, that cannot salvage the situation. Act came into force on 01.08.2009. Till now, the notification has not been issued. It is unfair to keep the execution proceedings pending unendingly anticipating that the Government may issue a notification. The Court relied on the decisions reported in **Indian Nut Products v. Union of India (1994(4) SCC** O.P(C).819/18 6 ## **269) and Sadiq S T v. State of Kerala and Others (2015(4) SCC** 400) in which, under the Kerala Cashew Factories Acquisition Act 1974, the Supreme Court emphasized the need for following an unscrupulous procedure, underlying the demands of principles of natural justice, since valuable rights of the owner of the land were being taken away. Court has to interpret the provision strictly, it was held. Hence, the court below correctly held that, mere entry to schedule II of the factory attached to the decree schedule property, by ipso facto, does not place any fetter on the decree holder in executing the decree. 10. The above fact has to be viewed from yet another angle. Item No.1 in schedule II framed under section 3B of the Act specifically refers to the property covered by “lease deed dated 01.03.1971”. When the legislature in its wisdom has incorporated specified property covered by a specified lease deed in its schedule, there cannot be an acquisition of a land outside the above lease deed. It cannot be said that the reference of “lease deed dated 01.03.1971” is without significance. Government was aware of the fact that, lease was created by virtue of more than one lease deeds. Hence, by specifically referring to one lease deed, legislature can only be stated to have applied its mind and confined itself to the property covered by that lease deed and not the property covered by another lease deed. The decree schedule property in the case at hand is covered by Ext.P6 deed dated 01.02.1975. Hence, schedule II cannot authorize O.P(C).819/18 7 Government to notify the decree schedule property, which is not covered by the lease deed scheduled in the Act. Government notification cannot exceed the parent Act and the schedule. Hence, the decree schedule property can be executed without any fetter being imposed on it. Having considered this, I find no merit in the original petition, which is accordingly dismissed. **Sd/-** Sbna **SUNIL THOMAS JUDGE** O.P(C).819/18 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1-P1(3) TRUE COPY OF THE JUDGMENT DATED 14.02.2017 IN O.P.(CIVIL) NO. 50/2016. EXHIBIT P2-P2(6) TRUE COPY OF THE KERALA CASHEW FACTORIES (ACQUISITION) AMENDMENT ACT, 2009. EXHIBIT P3-P3(13) TRUE COPY OF THE ORDER PASSED BY THE COURT BELOW BY WHICH THE AMENDMENT ACT DECLINED TO BE IMPLEMENTED EXHIBIT P4 TRUE COPY OF LETTER DATED 18.11.2015 ISSUED BY THE GOVERNMENT. EXHIBIT P5-P5(5) TRUE COPY OF THE VALUATION REPORT DATED 19.12.2016. EXHIBIT P6 THE TRUE COPY OF THE LETTER NO.K2/131/2018IND DATED 21/06/2018 ISSUED BY THE PRINCIPAL SECRETARY.**