P.R. Harikumar and Ajikumar v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **THURSDAY, THE 28TH DAY OF FEBRUARY 2013/9TH PHALGUNA 1934** ## **WP(C).No. 14251 of 2012 (S)** **---------------------------------------** ## **PETITIONERS:** **---------------------** **1. P.R.HARIKUMAR, ADVOCATE, HIGH COURT OF KERALA,** **ERNAKULAM.** **2. AJIKUMAR,** - **VETTIKKANAL VEEDU, ERUMELY SOUTH, KANJIRAPPALLY.** **BY ADVS.SRI.R.KRISHNA RAJ, SMT.E.S.SONI.** ## **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001.** **2. SECRETARY TO GOVERNMENT, DEPARTMENT OF FOREST, THIRUVANANTHAPURAM, PIN – 695 001.** **3. COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM, PIN – 695 001.** **4. CHIEF CONSERVATOR OF FOREST, THIRUVANANTHAPURAM, PIN – 695 001.** **5. SUPERINTENTENDENT OF POLICE, KOTTAYAM, PIN – 687 801.** ## **W.P.(C).14251/2012:** ## **6. DEPUTY SUPERINTENDENT OF POLICE, KANJIRAPPALLY- 689 7007.** ## **7. CIRCLE INSPECTOR OF POLICE, MANIMALA – 689 7002.** **8. HARRISON'S MALAYALAM LTD., 24/1624, BRISTOW ROAD, WILLINGTON ISLAND, REP.BY ITS CHIEF MANAGER, KOCHIN-3.** **9. K.P.YOHANNAN, MANAGING TRUSTEE & PRESIDENT, GOSPEL FOR ASIA BISHOP'S HOUSE, GOSPEL FOR ASIA, SEMINARY CAMPUS, THIRUVALLA, PIN – 658 904.** ## ***ADDL. R.10 IMPLEADED:** **10. PADMANABHAN UNNI NAIR, S/O. LATE KUTTY PARVATHI ANNAMMA, AGED 50 YEARS, KUZHIMBATTIL HOUSE, THIRUVAMPADI, KOZHIKODE DISTRICT.** ***ADDL. R.10 IS IMPLEADED AS PER ORDER DATED 28/02/2013 IN I.A. NO.12502/2012.** **R1 TO R7 BY SPL. GOVT. PLEADER (REVENUE) SMT. SUSHEELA R. BHAT, SPL. GOVT. PLEADER (FORESTS) SRI. M.P. MADHAVANKUTTY, R8 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR,** **SRI.P.GOPINATH, SRI.P.BENNY THOMAS, SRI.K.JOHN MATHAI, R9 BY ADVS. SRI.CHERIAN GEE VARGHESE, SRI.P.HARIDAS ADDL.10 BY ADV. SRI.B.N.SHIVSANKAR.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-02-2013, ALONG WITH W.P.(C).NO. 213/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C). NO.14251/2012-S:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P.1: COPY OF THE GOVT. ORDER DTD. 16/12/2005. EXT.P.2: COPY OF THE JUDGMENT IN W.P.(C).28870/2006 DTD. 03/11/2006.** - **EXT.P.3: REPORT OF THE HIGHLEVEL COMMITTEE DTD. 27/09/2007.** - **EXT.P.4: COPY OF THE LEGAL ADVICE DTD. 27/06/2008.** - **EXT.P.5: COPY OF THE GOVERNMENT ORDER DTD. 10/09/2009.** - **EXT.P.6: COPY OF THE RELEVANT PAGES OF DOCUMENT NO.1600/1923. DTD. 08/03/1923.** - **EXT.P.7: COPY OF THE RELEVANT PAGES OF THE REPORT OF THE S.I.T. DTD. 06/01/2010.** - **EXT.P.8: COPY OF THE SALE DEED NO.2329/2005 DTD. 01/08/2005. EXT.P.9: COPY OF THE RELEVANT PAGES OF SETTLEMENT REGISTER DTD. NIL. EXT.P.10: COPY OF THE JUDGMENT IN W.P. NO. 18164/2010 DTD. 30/06/2011. EXT.P.11: COPY OF THE JUDGMENT IN R.P.NO.744/2011 DTD. 06/01/2012.** - **EXT.P.12: COPY OF THE LIST OF PERSONS DTD. 24/11/2006.** - **EXT.P.13: COPY OF THE VAKALATH FOR THE R.8. DTD. 24/11/2006. EXT.P.14: COPY OF THE VAKALATH FOR THE R.9. DTD. 24/11/2006. EXT.P.15: COPY OF THE COUNTER AFFIDAVIT OF THE R.9. DTD. 19/10/2007. EXT.P.16: COPY OF THE PAPER NEWS DTD. 20/06/2012. EXT.P.17: COPY OF THE LETTER OF THE GOVERNMENT DTD. 30/03/2012. EXT.P.18: COPY OF THE NOTICE OF THE R.9. DTD. 01/07/2008.** - **EXT.P.19: COPY OF THE JUDGMENT IN O.S. 256/2009 DTD. 12/01/2012.** - **EXT.P.20: COPY OF THE JUDGMENT IN A.S. 21/09 DTD. 21/11/2011.** - **EXT.P.21: COPY OF THE RELEVANT PAGES OF DOCUMENT NO.1600/1923 DTD. 19/03/1923.** **Prv.** ## **W.P.(C).NO.14251/2012-S:** **EXT.P.22: COPY OF THE NOTIFICATION OF THE R.8. DTD. 19/08/2012.** - **EXT.P.23: COPY OF THE RELEVANT PAGES OF THE COMPANY APPLICATION FILED BY THE R.8. DTD. 05/08/1983.** - **EXT.P.24: COPY OF THE JUDGMENT IN MCA.35/1983 IN C.P.13/1983 DTD. 19/09/1983.** ## **RESPONDENTS EXHIBITS:** **EXT.R10(A): COPY OF THE SUIT O.S. NO.61/69.** **EXT.R10(B): COPY OF THE LEGAL HEIRSHIP CERTIFICATE ISSUED DTD. 14/08/2012. EXT.R10(C): COPY OF THE COMPROMISE DTD. 07/08/1976.** **EXT.R10(D): COPY OF THE COMPROMISE DECREE PASSED BY THE TRIAL COURT DTD. 07/08/1976.** ## **//TRUE COPY//** **P.S. TO JUDGE** **Prv.** “CR” ## Thottathil B.Radhakrishnan **==> picture [9 x 11] intentionally omitted <==** A.V.Ramakrishna Pillai, JJ. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).Nos.14251 of 2012-S **==> picture [17 x 11] intentionally omitted <==** **==> picture [104 x 12] intentionally omitted <==** = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of February, 2013. ## Judgment Thottathil B.Radhakrishnan, J. - 1.WP(C).No.14251 of 2012 is filed by two petitioners, of whom one is stated to be an Advocate practicing before this Court. WP(C). No.213 of 2013 is filed by one describing himself as a Trade Union activist. - 2.The crux of the writ petitions is the bundle of allegations that a Company, Harrisons Malayalam Limited, hereinafter referred to as “HML”, and wpc.14251/12 & 213/13 -: 2 :- its transferees, including Gospel for Asia, for short, “GFA”, are holding lands which are essentially Government lands and the concerned statutory authorities are fighting shy to invoke and exercise authority under the provisions of the Kerala Land Conservancy Act, 1957, hereinafter referred to as “LC Act”. 3.We have to note, before proceeding further, that a return filed before the Taluk Land Board, Vythiry by a company led to a revision under Section 103 of the Kerala Land Reforms Act, 1963 before this Court. After hearing that revision, quite elaborately and on an elaborate consideration of the entire factual matrix as placed before this Court then, very ably by the learned Government Pleader who appeared on behalf of the State Government in that case, this Court made an order of remit to the Taluk Land Board as regards some of the issues covered by the ceiling proceedings. ## 4.With the passage of time, different litigations wpc.14251/12 & 213/13 -: 3 :- came, generating also the issue as to whether HML could be treated as the repository of title of the original holder of the lands, and also different other issues as to possession; excess land; allegations as to trespass by Government officials etc. 5.With the passage of time, the State Government has filed OP(C).No.3508 of 2011 invoking Article 228 along with Article 227 of the Constitution of India, pleading that the TLB proceedings before the Taluk Land Board, Vythiry, be called for to this Court since certain questions as to the interpretation of the Constitution of India arise for decision in that case. The learned Special Government Pleader on behalf of the State has pointed out that the contentions of the State in that original petition have to be understood as broadly two-fold; (1) constitutional issues relating to questions arising from the matter which stands remitted to the TLB by the revisional order of this Court; and, (2) constitutional issues relatable to the entire TLB wpc.14251/12 & 213/13 -: 4 :- proceedings from its inception. The latter among the two grounds pointed out by her revolves on the State's attempt to demonstrate that the entire transactions under which HML and its transferees now claim are ridden with violation of the Constitution and the laws, including FERA, FEMA and also various land laws. It is pointed out by the learned Special Government Pleader that, according to the Government, such fraud played, amounts to fraud on the Constitution and the lands in issue are essentially that which will have to be treated as Government lands by way of escheat or applying the doctrine of bona vacantia as reflected in Article 296 of the Constitution. - 6.While the writ petitions in hand are filed primarily complaining about the inaction on the part of the statutory authorities under the LC Act, WP(C).No.213 of 2013 also contains reliefs requiring interdictory orders and also directions having a bearing on the alleged amalgamation of companies and the conduct of officers of HML in wpc.14251/12 & 213/13 -: 5 :- India. 7.Having perused the quality of the pleadings in WP (C).No.213 of 2013 and looking at the sanction order issued by the Company Court on the application approving the scheme of merger; particularly the conditions imposed thereby, we are of the view that exercise of jurisdiction under Article 226 does not need to be extended to any matter touching the activities of HML, since those are matters that could gain attention, if need be, in other jurisdictions, in accordance with law. 8.Be that as it may, if the Government stand by the assertion that the properties in the possession of HML or its transferees are Government lands or are lands which are recoverable under the provisions of LC Act, the bare minimum for any action to start, is by issuance of due and appropriate notice. This is not something to be done on any prompting of any other authority, but has to be done on the satisfaction of the wpc.14251/12 & 213/13 -: 6 :- competent authority under the LC Act regarding the existence of grounds to proceed under that Act. We may pause here to recall that in so far as GFA is concerned, there are certain observations in the judgments issued by the Division Bench of this Court in WP(C).No.6258 of 2010 and connected cases and in R.P.No.676 of 2011 in WP(C).No.32628 of 2007 and connected cases which tend to indicate that the proceedings for recovery, even through the LC Act, should stand deferred till identification of the lands. we record this going by the submissions of the learned senior counsel appearing on behalf of the GFA, without ourselves expressing anything on that. GFA's learned senior counsel also further submitted that there appears to be an indication in those judgments of the Division Bench that the State, if at all, has to take recourse to other proceedings, rather than those under the LC Act. We do not express anything on that now and we leave open that issue for the time being. ## 9.One thing is certain; even if lands are covered wpc.14251/12 & 213/13 -: 7 :- by orders issued by the Land Board in a ceiling case, if the Government were to contend specifically that the lands are Government lands or are lands which the Government are entitled to reach at, through the process of the LC Act, it would be within the jurisdiction of the competent statutory authority to initiate action. This is because, title to property is not what is decided in the Land Board proceedings in a ceiling case as between the declarant and the State, though such issues may be germane while exemptions or identification of excess, are to be decided by the Land Board, as between the declarant and other parties appearing before the Land Board. If the Government have the case that the paramount title to the land rests with them, they would be at liberty to initiate action in accordance with law. - 10.We may also record the submission of the learned senior counsel for HML that in cases where LC Act proceedings are to fail on a jurisdictional issue, the Company or the person notified of such wpc.14251/12 & 213/13 -: 8 :- proceedings would have the authority to challenge such proceedings on a jurisdictional issue and that in given situations, it would be for the State to sue and seek for declaration and other reliefs through the civil court rather than initiate proceedings under the LC Act. 11.Whatever arguments may be addressed at this point of time, we would stand dissuaded from answering any jurisdictional issue or any other aspect that may arise, if and when the competent authority under the LC Act issues notice. We also would not now speak on the quality of the State Government's rights or any other issues since it will be premature for us to express on that. Judicial discipline advises us that we will not carry ourselves beyond issues in praesenti, to speak on matters which may or may not arise between the parties at a future point of time. Not only that, we would cautiously guard this Court's power and jurisdiction from being utilised to answer issues pre-judging matters which statutory authorities or other executive wpc.14251/12 & 213/13 -: 9 :- authorities have to decide. No decision of this Court can be obtained to pre-empt; or to be treated as a caveat or an anticipatory clearance for any proposed statutory or other administrative action. For support, see the decision of the Hon'ble Supreme Court of India in Priyadarshini Dental College & Hospital v. Union of India [(2011) 4 SCC 623] and that of the Division Bench of this Court in Member Secretary (HRACC) v. M/s.Emerald Regency [2013(1) KHC 22]. For the aforesaid reasons, without expressing anything on merits, these writ petitions are ordered directing that if the competent authority or authorities in the State administration as are authorized in terms of the provisions of the LC Act, decide to initiate action against any of the properties in the possession of HML or any of its transferees or persons in occupation, they may do so strictly in accordance with law. If such authority concludes that action has to be so taken, let steps be initiated in that regard within a period of two months from the date of wpc.14251/12 & 213/13 -: 10 :- receipt of a copy of this judgment. Let proceedings follow thereupon, after affording due opportunity of hearing to all parties entitled to be heard in that regard. Sd/Thottathil B.Radhakrishnan Judge Sd/A.V.Ramakrishna Pillai Judge Sha -true copy- P.S.to Judge.