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Secretary to Government Department of Revenue, Secretariat, Thiruvananthapuram & Others v/s Mist Valley Resorts Pvt. Ltd., Registered Office, Ernakulam, Represented by N. Ramesh, Executive Director

    W.A. No. 180 of 2015
    Decided On, 25 June 2019
    At, High Court of Kerala
    For the Appellants: Ranjith Thampan, Addl. Advocate General. For the Respondent: P. Ramakrishnan, Advocate.

Judgment Text
A.K. Jayasankaran Nambiar, J.

1. This appeal is preferred by the State Government aggrieved by the judgment dated 11.11.2014 of the learned Single Judge in the

2. The brief facts leading to the filing of the writ petition are as follows:

The writ petitioner Company owns an extent of 1.75 acres of pandara pattam vaka general. It would appear that the said land was originally assigned to one Sri.R.Pandy through a pattayam bearing No.L.A.69/92 dated 16.12.1992 [Ext.P4]. The said Sri.Pandy sold the land to Roy Mathew on 19.6.1993 by Ext.P3 sale deed. Sri.Roy Mathew in turn sold the land to one N.Ramesh on 22.9.1993 [Ext.P2], and the said Ramesh sold the property to the Company, by Ext.P5 sale deed dated 23.7.1994. It is not in dispute that the property was subsequently mutated in the writ petitioner Company's name as is evident from Ext.P6 Thandaper produced along with the writ petition.

3. The writ petitioner Company constructed certain buildings on the land after obtaining permits from the Panchayat and also paid the tax applicable to the said buildings. By Ext.P10 proceedings of the District Collector dated 18.5.2007, the land belonging to the writ petitioner Company was resumed inter alia on the ground that the Company, despite having been served with a notice proposing a resumption of the land, had not produced any document establishing its title over the land. It was further stated that the land in question was reserved for Cardamom settlement, and inasmuch as the writ petitioner Company was using it for the purposes of a resort, it had occasioned a breach of Rule 28 of the Cardamom Settlement Rules, 1935 as also the Rules for lease for Government Lands for Cardamom Cultivation, 1961. The possession of the land was also apparently taken over by the Government by affixing Ext.P10 order, at the premises.

4. Aggrieved by Ext.P10 proceedings of the District Collector, the writ petitioner approached the Land Revenue Commissioner through an appeal. The said appeal was however dismissed by Ext.P18 order dated 22.5.2010. In the writ petition, Ext.P10 proceedings of the District Collector and Ext.P18 order of the Land Revenue Commissioner were impugned inter alia relying on Ext.P11 order of land assignment that was issued in favour of Sri.Pandy and Ext.P13 application filed by the said Pandy showing that he was in possession of the land from 1970 onwards. Exts.P15 and P17 reports of the Special Deputy Tahsildar and Tahsildar were also relied upon to contend that the land in question was not Cardamom Hill Reserve land or involved in any Land Conservancy Case, and further that the Revenue Department had been issuing pattas in respect of lands in the same area upto 1994. It is the specific case of the petitioner in the writ petition that the lands in question were not situated within the area notified as “Cardamom Hill Reserve”, and hence, the impugned proceedings were illegal.

5. In the counter affidavit filed on behalf of the State Government, the stand taken was that the land was classified as “pandara vaka elam purayidam”, and that the issuance of the patta to Sri.Pandy in terms of the Kerala Land Assignment Rules was irregular since the land in question was included in the Cardamom Hill Reserve area. It was contended that even assuming that the assignment was in terms of the Kerala Land Assignment Rules, then, in terms of Rule 8(1A) of the said Rules, the land could not be alienated for a period of three years after the original assignment. It is further contended that the land assigned could have been utilised only for the purposes for which it was originally assigned, and it was not open to either the original assignee or the successor-in-interest to change the use of the land for purposes other than for which the land was originally assigned.

6. The learned Single Judge, who considered the matter, placed reliance on the decision of this Court in Vincy Cherian Cherian and Others v. State of Kerala and Others - [2014 (1) KLT 372], which held that inasmuch as the Cardamom Rules, 1935 had been repealed by Section 9(3) of the Kerala Land Assignment Act, the said Rules could not be seen as in force after the repeal, to hold that the said repealed Rules could not be used against the writ petitioner. As regards the invocation of the Rules for lease of Government Lands for Cardamom Cultivation, 1961, the learned Single Judge found that inasmuch as there was no lease of land involved in the instant case, the State Government could not rely on the provisions of the said Rules for directing a resumption of the land in the hands of the writ petitioner. Ext.P10 order of resumption was therefore held to be without authority of law. The learned Judge further found that the State Government had not produced any document to show that the land covered by Ext.P4 patta was included within the Cardamom Hill Reserve area, whereas the documents produced by the writ petitioner clearly indicated that the land was not included within the Cardamom Hill Reserve. It was also found that inasmuch as there was no cancellation of the assignment in favour of the predecessor-in-interest of the writ petitioner, the resumption itself had to be seen as illegal.

7. Before us, it is the contention of Sri.Ranjith Thampan, the learned Additional Advocate General that there is material to show that the land in question belonging to the writ petitioner is in fact land that falls within the area notified as a Cardamom Hill Reserve area. It is his contention therefore that the original assignment order in favour of Pandy, the predecessor-in-interest of the writ petitioner itself is erroneous and has to be disregarded. Alternatively, it is his contention that even if the assignment of land is to be treated as one under the Kerala Land Conservancy Act and Rules, inasmuch as the writ petitioner Company has admittedly used the land for purposes other than cultivation, the land can be resumed by the State Government for violation of the conditions of the patta.

8. Per Contra, it is the submission of Sri. Ramakrishnan, the learned counsel for the respondent writ petitioner that the appellant had not produced any Notification indicating that the land in question formed part of the Cardamom Hill Reserve, all these years and to allow the State to rely on such a notification at this belated stage would be unfair to the writ petitioner. As regards the contention with regard to alleged violation of patta conditions by the writ petitioner, it is submitted that while this contention too is a new one raised for the first time in these proceedings, as a matter of fact, the writ petitioner is still using a substantial portion of the land for carrying on cultivation and constructions have been put up over only a small area solely to provide accommodation for the employees of the Company.

9.1. We have considered the rival submissions. At the outset, we might observe that based on the material that was before the learned Single Judge, the findings rendered by him in the judgment impugned in this appeal cannot be seen as erroneous and therefore do not warrant any intervention. The fact remains, however, that the lands in question are those that the State Government claims to have reserved for special purposes ie. Cardamom Cultivation and, according to it, an assignment under the Kerala Land Assignment Rules could not have been made of such lands. Whether the lands in question indeed form part of Cardamom Hill Reserve or not is a matter that has to be considered based on material produced by the State Government before the adjudicating authority.

9.2. That apart, the State Government also has an alternate contention that the writ petitioner Company had violated the terms of the patta issued in respect of the land and hence the land can be resumed by the State Government after cancelling the Patta. The latter contention is a new one that is raised by the State Government for the first time in these proceedings.

9.3. While under normal circumstances we would have been reluctant to afford a fresh opportunity to the State Government to raise such contentions before the adjudicating authority, we are mindful of the observations of the Supreme Court in Mandal Revenue Officer v. Goundla Venkaiah and Another – [(2010) 2 SCC 461], where, while exhorting Courts to be more circumspect in cases involving immovable property of the State, the following observations were made at paragraph 47;

“47. In this context, it is necessary to remember that it is well-nigh impossible for the State and its instrumentalities including the local authorities to keep everyday vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularised. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers.”

9.4. We are not for a moment stating that these proceedings involve a case of land grabbing. As a matter of fact, the material on record indicates that it was the Revenue authorities of the State that issued the Patta in respect of the land to the predecessors in interest of the petitioner Company. However, we feel it necessary to remand the case only because the possession of the land is now with the State Government and we feel it would be an exercise by way of abundant caution to rule out any any right in the State Government over the land in question before any order divesting the State of its possession over the land is passed.

9.5. We therefore set aside the impugned judgment of the learned Single Judge for the limited purpose of enabling the Land Revenue Commissioner, to whom the issue is remanded for adjudication, to examine the contention of the State Government with regard to the inalienability of th

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e land in question on account of its alleged inclusion under the Cardamom Hill Reserve Notification, as also the contention of the State with regard to the alleged violation of Patta conditions by the writ petitioner. The Land Revenue Commissioner shall complete the adjudication proceedings, after affording the writ petitioner an opportunity of being heard on the said issues, and pass orders within three months from the date of receipt of a copy of this judgment. We make it clear that in the adjudication proceedings before the Land Revenue Commissioner, it shall be open to the writ petitioner Company to raise all contentions on merits including those relating to the non-inclusion of the land in the Cardamom Hill Reserve, the plea of limitation/estoppel to question the legality of initiating a challenge against its proprietary rights over the land at this belated stage, and regarding its contention that it has not violated any of the Patta conditions. To enable the Land Revenue Commissioner to pass fresh orders in the matter, we formally set aside Ext.P10 and P18 orders that were impugned in the writ petition. The Writ Appeal is disposed as above.