PRESENT: THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 15TH DAY OF OCTOBER 2014/23RD ASWINA, 1936
WP(C).No. 4877 of
2014 (H)
PETITIONER(S):
M/S. HARRISONS MALAYALAM LIMITED, 24/1624, BRISTOW ROAD,
WILLINGDON ISLAND, COCHIN - 682 003, REPRESENTED BY ITS SENIOR MANAGER - LEGAL
SRI.M.V.H.MENON.
BY ADVS.SRI.E.K.NANDAKUMAR (SR.) SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH MENON SRI.BENNY P. THOMAS SRI.K.JOHN MATHAI
RESPONDENT(S):
1. STATE OF KERALA, REPRESENTED BY THE CHIEF
SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. THE SECRETARY TO
GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -
695 001.
3. THE SPECIAL OFFICER
AND COLLECTOR, STATE SPECIAL OFFICE, GOVERNMENT LAND RESUMPTION FROM HML,
PUBLIC OFFICE BUILDINGS, MUSEUM P.O., THIRUVANANTHAPURAM - 695 033. BY SENIOR
GOVERNMENT PLEADER SMT.ANITHA RAVINDRAN
J U D G M E N T
These writ petitions are filed by M/s.Harrisons
Malayalam Limited challenging various actions initiated by the State under
The
Kerala Land Conservancy Act, 1957
(for short, Land Conservancy Act). The writ
petitions 4877/2014 7516/2014 and 13037/2014 are filed challenging notices
issued under the Kerala Land Conservancy Act and threatened dispossession from
the properties mentioned in the notices. W.P.(C). No.17351/2014 is filed
seeking a direction commanding the third respondent-Special Officer and
Collector, the authority appointed under the Land Conservancy Act by the
Government to initiate action against petitioner in terms of S.15 of the Land
Conservancy Act to consider the issue regarding jurisdiction. Therefore, all
issues are pertaining to the actions initiated under the Land Conservancy Act
and this Court finds that it is appropriate to dispose these writ petitions by
a common judgment.
2. The petitioner
is a company incorporated under the Companies Act. The company claims to have
acquired large extent of properties in the State of Kerala and Tamil Nadu which
are mainly rubber and tea plantations. According to the petitioners, they have
acquired these properties in the year 1800 and early 1990s and they claim that
these are freehold land or leasehold land. Petitioner also claims that in
respect of leasehold land, they have fixity of tenure in terms of
Kerala Land
Reforms Act, 1963.
3. Two writ
petitions were filed before this Court as Public Interest Litigation, namely,
W.P.(C). No.14251/2012 and 213/2013 seeking for a direction to the Government
to resume the lands in possession of the petitioner in terms of Land
Conservancy Act. This Court by common judgment disposed the writ petitions on
28/02/2013 with the following directions:
"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 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. ......if the
competent authority or authorities in the State Administration as are
authorised 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 be do so strictly in accordance
with law. If such authority concludes that action has to be so taken, let steps
be initiated within a period of two months from the date of receipt of a copy
of this judgment. ...."
While disposing it was observed that if the
proceedings are initiated under the Land Conservancy Act and the authority
feels that proceedings under the Land Conservancy Act are liable to fail on
jurisdictional issues, it would be for the State to sue and seek other relief
through the civil court rather than initiating proceedings under the Land
Conservancy Act.
4. Ext.P9 in
W.P.(C).No.17351/2014 is a copy of the written argument advanced from the side
of petitioner before the Special Officer and Collector questioning
jurisdiction. It is raised on a preliminary issue. It is alleged by the
petitioner that the Special Officer has no jurisdiction to decide the nature of
the issue involved in the matter. The essential argument is that there must be
a jurisdictional fact which empowers the Authority to proceed under the Land
Conservancy Act.
5. In these writ
petitions, petitioner apprehends that without considering the preliminary
objections raised on jurisdiction, the petitioner will be dispossessed from the
properties mentioned in the notices. The State has filed a detailed counter
affidavit in this matter adverting to jurisdiction and questioning the
maintainability of the writ petition. According to the State, the writ
petitioner is attempting to scuttle the process which is duly initiated against
the petitioner under the Land Conservancy Act. It is also submitted that
petitioner- company have been continuously appropriating and utilising
government land for private purposes and making commercial gains also.
6. Kerala Land
Conservancy Act, 1957 is a law relating to prevent unauthorised occupation of
Government land in the State. Before the enactment of Land Conservancy Act, the
Travancore-Cochin Land Conservancy Act, 1951 and, the Madras Land Encroachment
Act, 1905 were the enactments governing the field regarding the unauthorised
occupation of the government land. The Land Conservancy Act have brought out
uniformity on the subject applicable for the whole State. As it is seen from
the preamble itself of the Land Conservancy Act, law is brought for checking
the unauthorised occupation of Government lands which would clearly indicate
that either at the inception of occupation or subsequently on account of deemed
vesting under either under the Kerala Land Reforms Act or any other
legislations; occupation must become unauthorised as those lands belong to the
government or have become vested with the Government. Therefore, a fact finding
is necessary to proceed under the Land Conservancy Act to have jurisdiction to
initiate action. In this regard it is apposite to advert to law on
jurisdictional facts. Jurisdictional fact is some fact or facts situation which
must exist in fact as condition precedent or essential pre-requisite for the
authority called upon to exercise its jurisdiction as prescribed under the
Statute. When existence of the fact is the basis of exercise of the power in
question, the authority shall endeavour on fact finding enquiry for the
exercise of power. Failure to exercise finding of facts for exercise of power
results in jurisdictional error.
7. The learned Senior Counsel for the
petitioner also relied on the decision of the Hon'ble Supreme Court in
Arun
Kumar and others v. Union of India and others [(2007) 1 SCC 732]
wherein it is
held as follows:
A "jurisdictional fact" is a fact which must exist
before a court, tribunal or an authority assumes jurisdiction over a particular
matter. If the jurisdictional fact does not exist, the court, authority or
officer cannot act. If a court or authority wrongly assumes the existence of
such fact, the order can be questioned by a writ of certiorari. The underlying
principle is that by erroneously assuming existence of such jurisdictional
fact, no authority can confer upon itself jurisdiction which it otherwise does
not possess. The existence of jurisdictional fact is thus sine qua non or
condition precedent for the exercise of power by a court of limited
jurisdiction. Once the authority has jurisdiction in the matter on existence of
"jurisdictional fact", it can decide the "fact in issue" or
"adjudicatory fact". A wrong decision on "fact in issue" or
on "adjudicatory fact" would not make the decision of the authority
without jurisdiction or vulnerable provided essential or fundamental fact as to
existence of jurisdiction of jurisdiction is present."
8. In
Carona Ltd.
v. Parvathy Swaminathan & Sons [(2007) 8 SCC 559]
the Hon'ble Supreme Court
distinguishes between jurisdictional fact and adjudicatory fact and analysed as
follows:
"But there is distinction between 'jurisdictional fact' and
'adjudicatory fact' which cannot be ignored. An 'adjudicatory fact' is a 'fact
in issue' and can be determined by a Court, Tribunal or Authority on 'merits',
on the basis of evidence adduced by the parties. It is no doubt true that it is
very difficult to distinguish 'jurisdictional fact' and 'fact in issue' or
'adjudicatory fact'. Nonetheless the difference between the two cannot be
overlooked." It was also held that existence of jurisdictional fact is
thus sine qua non or condition precedent to the assumption of jurisdiction by a
court or tribunal. It was further held in para.36 as follows: "It is thus
clear that for assumption of jurisdiction by a Court or a tribunal, existence
of jurisdictional fact is a condition precedent. But once such jurisdictional
fact is found to exist, the Court or Tribunal has power to decide adjudicatory
facts or facts in issue."
9. In the background of Land Conservancy Act, so
as to find out unauthorised occupation, normally, three kinds of jurisdictional
facts may arise
(i) an unauthorised occupation or encroachment in Government
land;
(ii) possession and,
(iii) a dispute as to the title or kind of interest
in the property.
10. These issues
are to be decided with reference to the definition of the "property of
Government" under Section 3 of the Land Conservancy Act. It is apposite to
extract Section 3 below:
"3. Property of Government defined.-
(1) All
public roads, streets, lanes and paths, the bridges, ditches, dykes and fences
on or beside the same the bed of the sea and of harbours and creeks below high
water mark, the beds and banks of rivers, streams, irrigation and drainage
channels, canals, tanks, lakes, backwaters and water courses, and all standing
and flowing water, and all lands wheresoever situated, save in so far as the
same are the property of--
(a) Jenmies, Wargdars or holders of Inams; or
(b)
persons registered in the revenue records as holders of lands in any way
subject to the payment of land revenue to the Government; or
(c) any other
registered holder of land in proprietary right; or
(d) any person holding land
under grant from the Government otherwise than by way of a lease or licence; or
(e) any person claiming through or holding under any of the persons referred to
in clauses (a), (b), (c), (d), are, and are hereby declared to be, the property
of Government, except as may be otherwise provided by any law for the time
being in force, subject to all rights of way and other public rights and to the
natural and easement rights of other land owners and to all customary rights
legally subsisting."
Explanation I.-Lands once registered in the name of a
person but subsequently abandoned or relinquished, and all lands held by right
of escheat, purchase, resumption, reversion or acquisition under the Land
Acquisition Act for the time being in force, are the property of Government
within the meaning of this section.
Explanation 1A.- Where the ownership and
possession, or the possession, of any land are or is vested in the Government
under Section 86 or Section 87 of the Kerala Land Reforms Act, 1963 (1 of
1964), such land shall, so long as it is in the possession of the Government,
be the property of Government within the meaning of this section).
Explanation
II.- In this section, the expression 'high-water mark' means the highest point
reached by the ordinary spring tide at any season of the year.
Explanation
III.-Where, in regard to roads, lanes and canals, survey stones had been, in
the original demarcation under the Survey Act, in force, planted for the sake
of convenience and safety inside compound walls and gates of compounds, in
house verandhas, door steps, porticoes, masonry drains and similar structures of
a permanent nature, such walls, gates, verandhas, etc., shall not be deemed to
be property of Government within the meaning of this section.
Explanation
IV.-(1) Lands belonging to the Government of any other State in India or to the
Kerala State Electricity Board or to a University established by law or to any
Panchayat as defined in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or any
Municipality as defined in the Kerala Muncipality Act 1994 (20 of 1994) owned
or controlled by the Government of Kerala or to a Municipal Corporation shall
be deemed to be the property of Government within the meaning of this section.
(2). All unassessed lands within the limits of private estates used or reserved
for public purposes or for the communal use of villagers, and all public roads
and streets vested in any local authority shall, for the purpose of this Act,
be deemed to be the property of Government."
11. The jurisdictional facts
in the context of Land Conservancy Act, has to be decided with reference to two
facts. Firstly, whether the land in question can be categorised as Government
land in terms of Section 3 of the Land Conservancy Act. Secondly, whether the
Government is in legal possession of the land referred in Section 3 of the Land
Conservancy Act. It is to be noted that the proceedings under the Land
Conservancy Act can be initiated if the persons are found in occupation of the
Government land. There is a distinction between occupation and possession in
law. The occupation denotes actual use and possession denotes control and
interest in the land. If a person is in legal possession of a land, without
determining the legal possession, proceedings under the Land Conservancy Act
cannot be initiated. The determination of legal possession cannot be done
invoking the provisions under the Land Conservancy Act. The Land Conservancy
Act only provides summary procedure for evicting illegal or unauthorized
occupation. Therefore, after categorizing the property as a Government land,
the Special Officer must address to the fact that whether the Government is in
legal possession of the property. Thus the Special Officer has to bear in mind
the distinction between occupation and possession while deciding the
preliminary issue raised by the petitioner.
12. The petitioner
can be evicted from the land only based on the final decision taken in the
matter by the Special Officer. The learned Government Pleader also assured that
they will be evicted only after taking a final decision in the matter.
13. In view of the
above the writ petitions are disposed of with the following directions:
The
Special Officer is directed to decide on the preliminary objections raised on
jurisdiction in the light of the discussions as above within two months after
affording an opportunity of hearing to the petitioner. The petitioner shall not
be evicted from the properties till a final decision is taken. The final
decision shall be taken only after deciding jurisdictional issue and on finding
that Special Officer has jurisdiction to initiate action under Land Conservancy
Act. The final decision shall be taken within a further period of two months.
In the event jurisdictional issue is found in favour of the State and final
decision is taken in the matter to remove the petitioner from occupations, the
decision shall be suspended for a period of one month after the final decision
for enabling the petitioner to avail the remedy against that order.
