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J & P Sand & Aggregates International Pvt. Ltd., Kizhakkambalam, Represented by Its Managing Director, Peter John v/s State of Kerala, Represented by Its Chief Secretary to Government, Government Secretariat, Thiruvananthapuram & Others

    WP(C). No. 26990 of 2020 (W)

    Decided On, 01 March 2021

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P.B. SURESH KUMAR

    Fort the Petitioner: Santhosh Mathew, Arun Thomas, Jennis Stephen, Vijay V. Paul, Karthika Maria, Veena Raveendran, Anil Sebastian Pulickel, Divya Sara George, Jaisy Elza Joe, Abi Benny Areeckal, Leah Rachel Ninan, Nanda Sanal, Advocates. For the Respondents: Renjith Thampan Addl. AG., S. Kannan, Spl. Government Pleader.



Judgment Text

1. Petitioner seeks in this proceedings a declaration that Exts.P1 to P5 Ordinances are bereft of any legal effect and the same do not create any right in the State over the minerals in the land referred to in the writ petition.

2. The petitioner owns a land measuring 2.2258 hectares in Resurvey Nos.25/1A Pt. and 25/1/1 of Nidiyenga village. This land was part of the erstwhile Malabar district in the Madras Presidency of the British India. It is stated by the petitioner that being the owner of a jenmom land in the Malabar district, they own subsoil rights (mineral wealth) in the land as well, as declared by the Apex Court in Thressiamma Jacob and others v. Geologist, Department of Mining and Geology and others, (2013) 9 SCC 725. It is alleged by the petitioner that in order to get over the declaration of law made by the Apex Court in Thressiamma Jacob, on 29.12.2019, the Governor of Kerala promulgated Ext.P1 Ordinance namely the Kerala Minerals (Vesting of Rights) Ordinance, 2019 providing that notwithstanding anything contained in any other law or in any judgment or decree or order of any court or proclamation, all rights in the minerals in the soil and subsoil of all lands of whatsoever ownership or tenure shall stand vested in and shall be subject to the control of the State Government from the date on which the Ordinance comes into force. It is also alleged by the petitioner that no compensation is provided for in terms of the said Ordinance to the owners of the land, whose mineral wealth is being taken over by the State as required by law. According to the petitioner, the Ordinance is therefore violative of Articles 31A and 300A of the Constitution.

3. It is stated by the petitioner that since a Bill to replace Ext.P1 Ordinance by an Act of the State Legislature could not be introduced in, and passed by the Legislative Assembly of the State during its session which convened on 31.12.2019, Ext.P1 Ordinance was re-promulgated on 14.1.2020. Ext.P2 is the repromulgated Ordinance dated 14.1.2020. Since a Bill to replace Ext.P2 Ordinance by an Act of the State Legislature could not be introduced in, and passed by the Legislative Assembly of the State during its session that commenced on 29.01.2020 and ended on 12.2.2020, Ext.P2 Ordinance was re-promulgated on 17.2.2020. Ext.P3 is the Ordinance re-promulgated on 17.2.2020. Since a Bill to replace Ext.P3 Ordinance by an Act of the State Legislature could not be introduced in, and passed by the Legislative Assembly of the State during its session commenced on 2.3.2020 and ended on 13.3.2020, Ext.P3 Ordinance was re-promulgated on 31.3.2020. Ext.P4 is the re-promulgated Ordinance dated 31.3.2020. Since a Bill to replace Ext.P4 Ordinance by an Act of the State Legislature could not be introduced in, and passed by the Legislative Assembly of the State during its session convened on 24.8.2020, Ext.P4 Ordinance was re-promulgated on 26.9.2020. Ext.P5 is the Ordinance re-promulgated on 26.9.2020. It is also the case of the petitioner that laying of an Ordinance before the State Legislature is mandatory and failure to lay an Ordinance before the State Legislature constitutes a serious infraction of the constitutional obligation imposed on the State by Article 213 (2) of the Constitution. It is the further case of the petitioner that promulgation and re-promulgation of an Ordinance would amount to a fraud on the Constitution and subversion of the democratic legislative process.

4. Counter statements have been filed in the matter by respondents 2 and 3 and the petitioner has filed a reply affidavit dealing with the contentions taken by respondents 2 and 3 in the counter statements.

5. Heard the learned counsel for the petitioner as also the learned Additional Advocate General.

6. The learned Additional Advocate General has raised a preliminary objection as to the maintainability of the writ petition. It was pointed out by the learned Additional Advocate General that the petitioner is not the jenmi of the land; that they are only the successors of the cultivating tenant of the land who has obtained a certificate of purchase in terms of the Kerala Land Reforms Act, 1963 (the Act); that a cultivating tenant who has obtained a certificate of purchase in terms of the Act acquires only the surface rights over the land and the petitioner who is claiming under the cultivating tenant cannot therefore claim any rights over the subsoil of the land. It was pointed out that if the petitioner cannot claim any rights over the subsoil of the land, he cannot be said to be a person aggrieved by Exts.P1 to P5 Ordinances in terms of which the subsoil rights in the land have been taken over by the State. The learned Additional Advocate General elaborated the said argument pointing out that though all right, title and interest of the landowners in the land held by cultivating tenants have been vested in the Government under Section 72 of the Act, the Act being one introduced for agrarian reforms and the assignment being for agricultural purposes, the cultivating tenant can be presumed to have obtained only the surface rights over the land in terms of the certificate of purchase issued under the Act.

7. The learned counsel for the petitioner did not dispute the fact that the petitioner is the successor of the cultivating tenant of the land who has obtained certificate of purchase under Section 72K of the Act. The learned counsel, however, pointed out placing reliance on Sections 72, 72B and 72K of the Act that the right, title and interest of the Government that were assigned to the cultivating tenant under Section 72K of the Act were the right, title and interest of the landowner that were vested in the Government under Section 72 of the Act and since the words and expressions used in the statute in the context of vesting of the land in the Government and in the context of assignment of the land in favour of the cultivating tenant are one and the same, such words and expressions cannot be interpreted differently.

8. As the locus standi of the petitioner to seek relief in respect of Exts.P1 to P5 Ordinances is questioned, it is necessary to consider that question before proceeding to consider the sustainability or otherwise of the grounds on which relief is sought in respect of the said Ordinances.

9. No doubt, the Apex court has declared in Thressiamma Jacob that the sub soil rights in the lands held by jenmies in the erstwhile Malabar district vests in the jenmies themselves. It is stated in the Ordinances in respect of which relief is claimed in the writ petition that it is with a view to overcome the said declaration of law made by the Apex Court in Thressiamma Jacob and to vest the rights of the jenmies over the minerals in such lands with the State that the Ordinances have been promulgated. The petitioner, however, asserts that by virtue of the provisions contained in the Act, their predecessor had acquired the subsoil right over the land as well. There cannot be any doubt that if the petitioner does not have any right over the subsoil of the land, they cannot contend that they have the locus standi to claim relief in respect of Exts.P1 to P5 Ordinances. The short question, therefore, is as to whether the petitioner being the successor of a cultivating tenant who obtained a certificate of purchase under the Act can be said to have acquired the subsoil rights over the land.

10. The provisions of the Act which are relevant in the context of resolving the question are Sections 72 (1), 72B(1), 72D and 72K(1). Section 72(1) of the Act excluding its Proviso reads thus:

72. Vesting of landlord's rights in Government. - (1) On a date to be notified by the Government in this behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyirippus and holders of karaimas) entitled to fixity of tenure under Section 13 and in respect of which certificates of purchase under sub-section (2) of Section 59 have not been issued, shall, subject to the provisions of this section, vest in the Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon on the said date:

Section 72B(1) of the Act excluding its Proviso and Explanation reads thus:

72B. Cultivating tenant's right to assignment. - (1) The cultivating tenant of any holding or part of a holding, the right, title and interest in respect of which have vested in the Government under Section 72, shall be entitled to assignment of such right, title and interest:

Sub-sections (1) and (2) of Section 72D of the Act excluding their Proviso and Explanation read thus:

72D. Purchase price. - (1) The cultivating tenant shall be liable to pay purchase price to the Government on the assignment to him of the right, title and interest of the landowner and the intermediaries, if any.

x x x x x x x x x x x

(2) The purchase price referred to in sub-section (1) shall be the aggregate of—

(a) sixteen times the fair rent of the holding or part thereof, the right, title and interest in respect of which have been assigned to the cultivating tenant;

(b) the value of structures, wells and embankments of a permanent nature which belonged to the landowner and the intermediaries, if any, at the time of vesting in the Government;

(c) one-half of the value of timber trees which belonged to the landowner and the intermediaries, if any, at the time of vesting in the Government;

Section 72K(1) of the Act excluding the Explanation reads thus:

72K. Issue of certificate of purchase. - (1) As soon as may be after the determination of the purchase price under Section 72F or the passing of an order under sub-section (3) of Section 72MM the Land Tribunal shall issue a certificate of purchase to the cultivating tenant, and thereupon the right, title and interest of the landowner and the intermediaries, if any, in respect of the holding or part thereof to which the certificate relates, shall vest in the cultivating tenant free from all encumbrances created by the landowner or the intermediaries, if any.

As evident from Section 72 of the Act, in the light of the provision therein, all right, title and interest of the landowners in respect of holdings held by cultivating tenants stood vested in the Government as on the date notified by the Government. There is no dispute between the parties to the fact that the said vesting includes the subsoil rights over the land as well. The dispute is only with regard to the rights acquired by the cultivating tenant subsequently in terms of the certificate of purchase under Section 72K of the Act. While the petitioner asserts that the entire right, title and interest in the land vested in the Government under Section 72 have been assigned to the cultivating tenant in terms of the certificate of purchase, the respondents assert that the subsoil rights over the land have not been assigned to the cultivating tenant and the statute being part of the agrarian reforms introduced in the State, the cultivating tenant has been assigned only the rights over the surface for continuing the cultivation.

11. In State of A.P. v. Duvvuru Balarami Reddy, AIR 1963 SC 264, the Apex Court has quoted with approval, the decision of the privy council in Secy. of State for India v. Srinivasachariar, AIR 1921 PC 1. The principle that was approved by the Apex Court in the said case was that what interest in the land passed by virtue of a grant would depend on the language of the instrument and the circumstances of the case and merely for the reason that a person is the holder of an enfranchised inam grant would not by itself be enough to establish that the inam grant included the subsoil rights over the land as well in addition to the surface rights. It was clarified in the said case that if there are no words in the grant from which the grant of subsoil rights could be inferred, it cannot be said that the grant would convey the subsoil rights over the land to the grantee. Paragraphs 7 and 8 of the judgment in Duvvuru Balarami Reddy read thus:

7. The main question therefore that falls for decision in these appeals is whether Shotriemdars can be said to have rights in the minerals. This matter has been the subject of consideration the Madras High Court on a number of occasions and eventually the controversy was set at rest by the decision of the Judicial Committee in Secy. of State for India v. Srinivasachariar, 48 Ind App 56 : (AIR 1921 PC 1). That case came on appeal to the Judicial Committee from the decision of the Madras High Court in Secy, of State for India v. Srinivasachariar, TLR 40 Mad 268 : (AIR 1918 Mad. 956). The controversy before the Madras High Court was with respect to a shrotriem inam which was granted by the Nawab of Carnatic in 1750 and had been enfranchised by the British Government in 1862. The inamdar started quarrying stones in the land granted to him and the Government claimed that it had a right to levy royalty or seigniorage fee on stones quarried by the inamdar. The inamdar contended on the other hand that an enfranchised inam was exactly in the same position as a zamindari estate under the permanent settlement and that he was entitled to the entire sub soil rights and the Government was not entitled to levy royalty or seigniorage fee on stones quarried by him. The High Court held that under the terms of the grant the grantor conveyed all that the grantor had in the soil including sub soil rights, and therefore, it was not open to the Government to levy any royalty or seigniorage fee on stones quarried by the inamdar. In effect the decision of the High Court negatived the claim of the Government to sub soil rights, for the Government could only levy royalty or seigniorage fee if it had sub soil rights and the inamdar had no such rights.

8. This decision was taken in appeal to the Judicial Committee as already indicated above, and the controversy between the parties was that the inamdar claimed a decree establishing his full rights to the said village to the rocks and hills within its boundaries. The State on the other hand while admitting that there had been an inam grant of the village to the inamdar contended that there was no conveyance of the rights to minerals in the village. The Judicial Committee held that the grant of a village in inam might be no more than an assignment of revenue, and even where there was included a grant of land, what interest in the land passed must depend on the language of the instrument and the circumstances of each case. The Judicial Committee also considered the standing order of the Board of Revenue of 1890 and 1907 which have been referred to by the appeal court in the judgment under appeal. This decision thus establishes that the mere fact that a person is the holder of an inam grant would not by itself be enough to establish that the inam grant included the grant of sub-soil rights in addition to the surface rights and that the grant of subsoil rights would depend upon the language used in the grant. If there are no words in the grant from which the grant of sub-soil rights can be properly inferred, the inam grant would only convey the surface rights to the grantee, and the inam grant could not by itself be equated to a complete transfer for value of all that was in the grantor. In particular, the Judicial Committee stressed the use of the words “the produce of the season each year” used in the grant to show that only the surface rights were granted in that case.

In State of Mysore v. Swamy Satyanand Saraswati, Religious Preacher, Raichur (1971) 2 SCC 88, in the context of deciding a similar question as to whether a grant would take within its scope the subsoil rights, the Apex Court took the view that it would be wholly unrealistic to construe a grant as conferring the subsoil rights by implication merely because there is no mention of it in the grant. It was also held by the Apex Court in the said case that what is to be considered in cases of this nature is the purpose for which the grant is created and if the instrument indicates that the purpose of the grant is to allow the user of the surface only, it would be wrong to presume that subsoil rights were also conveyed thereby. Paragraph 12 of the judgment in the said case reads thus;

12. In our view the principle which is to be deduced from these cases is not one which is to be confined to the case of Zamindars in permanently settled estates. What has to be considered in each case is the purpose for which the lands are leased or an interest created therein with all the clauses which throw any light on the question as to whether the grantor purported to include his rights to the sub-soil in the grant when there was no express mention of it. If the lease shows that the purpose of the grant was to allow the user of the surface only it would be wrong to presume that sub-soil rights were also covered thereby. The Patta Ex. 48 in this case amply demonstrates that what was in contemplation of the parties at the time of the grant in 1930 was the cultivation thereof or grazing cattle thereon. The grantor was even careful to reserve the right to fruit-bearing trees. It would be a strange construction to hold that although the grantor expressly excluded such trees from his grant he must be taken to have parted with his sub-soil rights by implication.

In Girdhari Singh v.Megh Lal Pandey, 44 I.A. 246, in the context of ascertaining whether mineral rights are included in a grant of lease, it was held that merely for the reason that the expression "with all rights, title and interest" is used in a grant, the same does not increase the actual corpus of the grant and they would only give expressly what might otherwise quite well be implied and use of such expressions is not sufficient to infer that subsoil rights over the land are also transferred to the grantee. The relevant passage of the said judgment reads thus:

“There are two points, however, which remain as applicable to the present case. It is said that minerals must be included because of the use of the expression “mai hak hakuk” in this pottah. On the assumption that the expression means ‘with all rights,’ or may be properly amplified as ‘with all right, title and interest,’ such expressions, in their Lordships opinion, do not increase the actual corpus of the subject affected by the Pottah. They only give expressly what might otherwise quite well be implied, namely, that that corpus being once ascertained, there will be carried with it all rights appurtenant thereto, including not only possession of the subject itself, but it may be of rights of passage, water or the like, which enure to the subject of the Pottah and may even be derivable from outside properties. It must be borne in mind also that the essential characteristic of a lease is that the subject is one which is occupied and enjoyed and the corpus of which does not in the nature of things and by reason of the user disappear. In order to cause the latter specially to arise, minerals must be expressly denominated, so as thus to permit of the idea of partial consumption of the subject leased. Their Lordships accordingly are of opinion that the words founded on do no add to the true scope of the grant nor cause mineral rights to be included within it”

The fact that the Act is one introduced for agrarian reforms cannot be doubted by anyone. If that be so, the assignment of the land in favour of the cultivating tenant can only be for making use of the land for agricultural purposes. There are no words in the Act or in the grant, from which the grant of subsoil rights to the cultivating tenants could be inferred. Having regard to the object of the Act, it cannot be said that the legislature has contemplated the grant of subsoil rights to the cultivating tenants. As evident from Section 72D of the Act, even the purchase price payable by the cultivating tenant for the assignment has been fixed without taking into account the subsoil rights in the land. In the said circumstances, in the light of the decisions aforesaid, I am of the view that It would be wholly unrealistic to hold that a cultivating tenant in terms of the provisions of the Act would acquire subsoil rights in the land in terms of the certificate of purchase.

12. That apart, it is trite that the law should serve public interest and the courts while construing statutory provisions have to avoid constructions which would be adverse to public interest. It is profitable in this context to refer to a passage from 'Bennion on Statutory Interpretation (Fifth Edition- Page 786). The said passage reads thus :

“It is the basic principle of legal policy that law should serve the public interest. The court when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. It should therefore strive to avoid adopting a construction which is in any way adverse to the public interest.”

The principle aforesaid has been recognised by the Apex Court also in Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group, (2006) 3 SCC 434. There cannot be any doubt that an interpretation of Section 72K of the Act in a manner conferring the subsoil rights in the land to cultivating tenants who have obtained certificate of purchase would certainly be against public interest. In other words, the aforesaid principle also fortifies the finding in the preceding paragraphs that cultivating tenants, in terms of the provisions of the Act, would not acquire subsoil rights in the land.

13. Again, it is not disputed that the cultivating tenants in respect of lands which were parts of the erstwhile Travancore and Cochin States cannot claim any rights over the subsoil of the land, for the said rights stood vested in the erstwhile States before the Act by virtue of Travancore Proclamation of 1881 and Cochin Proclamation of 1905. In other words, if it is held that the cultivating tenants in the erstwhile Malabar district own the subsoil rights as well over the land covered by the certificate of purchase, it would appear that the rights conferred on the cultivating tenants under the Act are not uniform throughout the State and such an inference would make the statute violative of Article 14 of the Constitution. It is settled that courts have to adopt an interpretation which is favourable to and tilts towards constitutionality of the statute, as opposed to making a provision unconstitutional. The aforesaid principle also fortifies the finding in the preceding paragraphs that cultivating tenants in terms of the provisions of the Act would not acquire subsoil rights in the land.

14. Now, I shall deal with the contention taken by the learned counsel for the petitioner that the expressions used in the statute are to be construed uniformly and if the expression “right, title and interest of landowners” used in Section 72 of the Act in the context of vesting of landowner's rights in the holding in the Government and the expression “right, title and interest of the landowner” used in Section 72K of the Act in the context of assignment of the right, title and interest of the landowners vested in the Government under Section 72 to the cultivating tenant, are construed uniformly, the only conclusion possible is that subsoil rights in the land are also conveyed to the cultivating tenant in terms of the certificate of purchase. I am unable to accept this contention. The same words may often receive a different interpretation in different parts of the same Act, for words used with reference to one set of circumstances may convey an intention quite different from what the selfsame set of words used with reference to another set of circumstances would or might have produced. In Maharaj Singh v. State of Uttar Pradesh and others, 1977 (1) SCC 155, the Apex Court has recognized the said proposition, holding that the very same word used in different parts of the same statute can be construed differently, if the context warrants a different construction for the word. The said case arose under the U. P. Zamindari Abolition and Land Reforms Act, 1950, in terms of which the State of Uttar Pradesh extinguished all zamindari estates and implemented a scheme of settlement of lands with intermediaries, tenants and others, by first vesting all estates in the State and empowering the State to assign the same in Gaon Sabhas. An issue arose as to whether the State would retain any interest in the estate after assigning the estate in Gaon Sabhas so as to enable the State to challenge in appeal a decree against Gaon Sabha and the issue was answered in the affirmative by the Apex Court. The following are the words used by the Apex Court for laying down the proposition aforesaid : “16. It is reasonable to harmonize the statutory provisions to reach a solution which will be least incongruous with legal rights we are cognizant of in current jurisprudenc

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e. Novelty is not a favoured child of the law. So it is right to fix the estate created by Section 117 into familiar moulds, if any. Such an approach lends to the position that the vesting in the State was absolute but the vesting in the Sabha was limited to possession and management subject to divestiture by Government. Is such a construction of 'vesting' in two different senses in the same section, sound ? Yes. It is, because 'vesting' is a word of slippery import and has many meanings. The context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. That is why even definition clauses allow themselves to be modified by contextual compulsions. So the sense of the situation suggests that in Section 117(1) of the Act 'vested in the State' carries a plenary connotation, while 'shall vest in the Gaon Sabha' imports a qualified disposition confined to the right to full possession and enjoyment so long as it lasts. Lexicographic support is forthcoming, for this meaning. Black's Law Dictionary gives as the sense of 'to vest' as 'to give an immediate fixed right of present or future enjoyment, to clothe with possession, to deliver full possession of land or of an estate, to give seisin'.Webster's Third International Dictionary gives the meaning as 'to give to a person a legally fixed immediate right of present or future enjoyment'. x x x x x x 18. There is thus authority for the position that the expression 'vest' is of fluid or flexible content and can if the context so dictates, bear the limited sense of being in possession and enjoyment. Indeed, to postulate vesting of absolute title in the Gaon Sabha by virtue of the declaration under Section 117(1) of the Act is to stultify Section 117(6). Not that the legislature cannot create a right to divest what has been completely vested but that an explanation of the term 'vesting' which will rationalise and integrate the initial vesting and the subsequent resumption is preferable, more plausible and better fulfils the purpose of the Act. We hold that the State has title to sustain the action in ejectment.” For the reasons aforesaid, I am constrained to hold that being the successor of a cultivating tenant, the petitioner cannot be said to have acquired the subsoil rights over the land. Needless to say that he has no locus standi to institute the writ petition seeking reliefs in respect of subsoil rights in the land. In so far as it is found that the petitioner does not have the locus standi to institute the writ petition, it is unnecessary to go into the questions relating to the sustainability or otherwise of the grounds on which the petitioner is seeking reliefs in respect of Exts.P1 to P5 Ordinances. The writ petition, in the circumstances, is dismissed.
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