Writ Appeal No. 998 of 2012 (WP(C). 23472/2010)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MRS. JJUSTICE SHIRCY V. THURSDAY, THE 2ND DAY OF FEBRUARY 2017/13TH MAGHA, 1938 WA.No. 998 of 2012 IN WP(C).23472/2010 ------------------------------------------- AGAINST THE JUDGMENT IN WP(C) 23472/2010 of HIGH COURT OF KERALA DATED 23-02-2012 ## APPELLANTS/RESPONDENTS 1 TO 3 IN WPC: ------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY ITS REVENUE SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR ERNAKULAM. 3. THE TAHSILDAR ALUVA. ## BY ADV. GOVERNMENT PLEADER ## RESPONDENTS/PETIITOINERS IN WPC: ---------------------------------------------- 1. K.K.MATHAI KARINGEN VEEDU, NADUVATTOM P.O., NEELESWARAM-679308. 2. K.K.OUSEPACHAN KARINGEN VEDDU, NADUVATTOM P.O., NEELESWARAM-679308. R1,R2 BY ADV. SRI.K.L.NARASIMHAN R1,R2 BY ADV. SRI.A.MOHAMMED FAIZAL R1,R2 BY ADV. SRI.N.KRISHNA PRASAD R BY SRI.T.R.RAJAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & SHIRCY V.,JJ.** ## **==============================** ## **W.A. No. 998 of 2012** ## **==============================** ## **Dated this the 2[nd] day of February, 2017 JUDGMENT** ## **Antony Dominic, J.** The respondents in W.P.(C) No. 23472 of 2010 are the appellants. The respondents herein filed the writ petition seeking to challenge Exts.P6 and P6(a) orders issued by the third appellant, cancelling the assignment of land mentioned therein, which are covered by Exts.P2 and P2(a) and which were acquired by the respondents by Exts.P3 and P3(a) sale deeds. By the judgment under appeal, the learned single Judge set aside Exts.P6 and P6(a) and disposed of the writ petition clarifying that the findings in the judgment would not affect the rights of the parties to move for arbitration in terms of Clause 14 of Ext.P2 Order of Assignment of land and in the light of the judgment of this Court in **Joemon** WA 998/2012 2 **Joseph v. Tahsildar (2011(2)KLT 1007)** . It is aggrieved by this judgment, this appeal is filed. 2. On facts it is only relevant to state that by Ext.P2 order of assignment and Ext.P2(a) patta, 3.50 acres of land was assigned to the predecessor-in-interest of the respondents, Sri. V.C. Poulose under the Rules of the Assignment of Government Lands for Rubber Plantation (hereinafter referred to as 'the Rules') framed by the Government of Kerala in exercise of its powers under Section 7 of the Kerala Land Assignment Act, 1960. Though this assignment was ordered way back in 1970, from the transferee of the original assignee, the property was acquired by the respondents as per Ext.P3 and Ext.P3(a) sale deeds, which were executed on 28.4.1999 and 22.5.1996 respectively. 3. While the respondents were in possession and enjoyment in the land in question, Ext.R3(a) judgment was rendered by this Court in W.P.(C) No. 9605/2008. In that WA 998/2012 3 judgment, this Court considered cases where in a land that was assigned under the Rules, quarrying operations were undertaken. In the judgment this Court held that such activity was in violation of the conditions of the grant attracting cancellation of the very grant itself. This Court further directed the authorities to initiate action for cancellation of assignment in the case of violation of all similar grants and also to recover of the value of the minerals that were extracted and appropriated by the assignees and their successors. The judgment of the learned single Judge was upheld by the Division Bench of this Court in W.A. No.1908/2009 except to the extent of the direction requiring recovery of the value of the minerals extracted. The judgment was affirmed by the Supreme Court by dismissing the Special Leave Petition filed. 4. In pursuance of the directions contained in the aforesaid judgment of this Court, on 6.3.2010 Exts.P4 and P4(a) notices proposing cancellation of the assignment in WA 998/2012 4 favour of the respondents were issued on the allegation that in a part of the property was utilised as a quarry. The respondents contested the matter by filing Ext.P5 and R3(d) replies. The matter was considered with opportunity of hearing to the parties and Ext.P6(a) orders were issued on 27.4.2010 whereby the assignment was cancelled. It was in this background the writ petition was filed by the respondents herein. 5. By the judgment under appeal, the learned single Judge allowed the writ petition, finding that on the date of Exts.P6 and P6(a), quarry was not functioning and that the Government did not have a case that the respondents had obtained licence to conduct quarry in the land in question. The learned single Judge found support to this view in the judgment in W.P.(C) No.2809/2010 and W.P.(C) No.10589/2010. It is this judgment which is under challenge before us. 6. Having heard the learned Government Pleader WA 998/2012 5 appearing for the appellants an the learned counsel appearing for the respondents, we are of the opinion that the judgment of the learned single Judge is unsustainable. Admittedly, the land in question was assigned to the predecessor in interest of the respondents under the Rules. The conditions subject to which the assignment has been granted, are incorporated in Ext.P1 Rules, Ext.P2 Form of Order of Assignment of land on registry for Rubber Cultivation and Ext.P2(a) Form of Patta. These conditions expressly prohibited the assignee from using the land or suffer to be used except for the purpose of which the land was assigned. It is also provided that contravention of the conditions of the assignment would attract cancellation of assignment. It was on the finding that the land in question was used for quarrying of granite and thus terms of assignment are violated, that proceedings were initiated by Exts.P4 and P4(a) notices which ultimately culminated in Exts.P6 and P6(a) orders of cancellation. WA 998/2012 6 ## 7. Clause 14 of Ext.P2 Order reads as follows: “14. If any dispute or difference arises between the government or their officers on the one part and the grantee or his/her successors in interest on the other part as to the rights, duties, or liabilities of either party in respect of any matter or thing relating to or arising out of the grant or the construction or the meaning of all or any of the conditions herein contained the said dispute or difference shall be referred for settlement by arbitration to the District Collector.” According to us when by Ext.P6 and P6(a) the assignment has been cancelled and assignee or his successor in interest has dispute with respect to the legality thereof, the remedy available to the aggrieved is to seek an arbitration of the dispute by the District Collector. Therefore, the writ petition filed by respondents 1 and 2 impugning Exts.P6 and P6(a) is a misconceived one and should not have been entertained by this court. 8. Although both sides argued before us much on the merits of the controversy, we deliberately refrain from WA 998/2012 7 expressing our views on those issues for the reason that any such expression of views of this Court would affect the rights of the parties which are to be independently appreciated and decided by the Arbitrator. 9. Therefore, we dispose of this appeal setting aside the judgment of the learned single Judge and leaving it open to the respondents to invoke the right of arbitration as provided under Clause 14 of Ext.P2 Order of Assignment. It is ordered that in the event of such a request is made by the respondents, the 2[nd] appellant shall initiate arbitration with notice to both sides and complete the proceedings as expeditiously as possible. It is clarified that the entire issues are left open to be decided by the Arbitrator. Writ appeal is disposed of accordingly. ## **Sd/-** ## **ANTONY DOMINIC, JUDGE** ## **Sd/-** ## **SHIRCY V., JUDGE** ## **ks. True copy** WA 998/2012 8 WA 998/2012 9