State Can’t Act Like Robinhood: Kerala HC Sets Aside Land Conservancy Act Proceedings Against Harrisons Malayalam [Read Judgment]
The Welfare State exists for the downtrodden and the marginalised, but cannot act like Robin Hood; which would be a negation of the democratic principles and blatant flouting of rule of law, the Bench said.
The Government if given a carte-blanche to negative such ownership and possession, at one go, by an officer authorised to evict unauthorized possession of lands; then it would be an arbitrary exercise of power violating all principles of rule of law, the Court held.
In a huge blow for the Kerala Government, the High Court of Kerala has set aside eviction proceedings under the Kerala Land Conservancy (KLC) Act initiated by the state against Harrisons Malayalam Limited and its assignees, through a special officer appointed for the purpose, holding that it is without jurisdiction.
Setting aside the eviction proceedings, a division bench of Justice K Vinod Chandran and Justice Ashok Menon observed that since there is a bona fide dispute on title raised who have also been continuing in possession of the lands, paying the taxes and duties to government for such ownership and possession, and therefore the special officer authorised under the KLC Act cannot adjudicate on the title and then carry out eviction.
Harrisons Malayalam Limited and its assignees had approached the high court challenging proceedings for eviction by state. According to them, proceedings initiated by the state, especially the one under the Kerala Land Conservancy Act, 1957, is without jurisdiction, high handed and in violation of their right under Article 300-A of the Constitution of India. They had assailed orders of the special officer that had decided the question on jurisdiction, of encroachment and un-authorised occupation on government land and consequential notice directing vacation of unauthorised occupation of land.
Issues like allegation of violation of the FERA, operation of Independence Act, interpretation of the KLR Act, the Edavagai Rights Acquisition Act, the manipulations under the Puduval Rules and broad accusations of fraud, forgery and collusion, was highlighted on behalf of the state defending the proceedings under KLC Act.
The ‘Essential Question’
The issue before the bench was essentially this: “An Indian Company to which was amalgamated a foreign Company, whether could hold and enjoy the lands that devolved on them by virtue of the amalgamation; when the foreign Company could not have continued holding such lands after India got independence?”
The judgment, authored by Justice K Vinod Chandran runs to 191 pages and it elaborately discusses almost every issue raised by either sides. The observations made by the court on important issues are reproduced below.
On Special Officer Deciding Title of Land
The Court made following observations with regard to special officer deciding the title of the land in possession of the petitioner company:
- Title cannot be adjudicated under the KLC Act, intended only at the eviction of unauthorised occupation. Title, to establish it or to controvert it, has to be adjudicated before a Civil Court.
- The government if given a carte-blanche to negate such ownership and possession, at one go, by an officer authorised to evict unauthorized possession of lands; then it would be an arbitrary exercise of power violating all principles of rule of law.
- The various orders and certificates issued by courts, land tribunals and taluk land boards cannot be nullified by the SO exercising jurisdiction under the KLC Act. Nor can the SO declare them to be fraudulent, forged or obtained by collusion. If the State has a contention that the orders and certificates issued are fraudulent or obtained by collusion, necessarily proceedings would have to be initiated to set aside the same.
- An officer authorised to evict unauthorised possession of government or puramboke lands cannot decide title on allegations of fraud, by himself, nullifying the orders and certificates issued under a statute and annulling decisions of civil courts; binding on the State too who was a party to the lis. Fraud will have to be pleaded and established in a Court of law and a statutory authority cannot find it to avoid its binding nature.
- Title, has to be found after adducing evidence in a properly initiated civil proceeding, if the state ventures so, to institute. There is no cause for the petitioners to approach the civil court to establish title under Section 20 of the KLC, Act; the proceedings under the Act having been set aside by us.
On Alternate remedy
The court also rejected the contention of the state that the petitioners have alternate remedy by observing as follows:
- It is the Land Revenue Commissioner, the appellate authority, who made the proposal, as to the proceedings to be initiated under the KLC Act and the officer to be appointed. It is also crystal clear that the intention of the Government, the revisional authority, in appointing the SO to be the Collector, the authority under the KLC Act, revealed from the order under Section 15, is to specifically recover the lands of HML. We cannot hence relegate the petitioners to the alternate remedy; especially noticing the consistent and concerted attempts of the Government to take over the lands which are in possession of HML for long and on which the HML and their assignees, raise a valid claim of title
- The appeal would be from 'Ceasar to Ceasar's wife'; not to be taken as a literal reference to anybody's wife. We only affirm the popular perception from time immemorial, when empires existed, that an appeal from the emperor to his spouse would be futile. In a democracy, this principle has application only by reason of the statutory authorities being subservient to the Government or rather to the political expediency of the ruling party. We cannot shut our eyes to the manner in which repeated proceedings were initiated to take over the lands and eventually the appointment of SO effected.
On Special Officers ‘outbursts’ about “Englishmen” holding lands in India
The court also found fault with SO brushing aside numerous decisions by the civil courts, the land boards and the land tribunals, on the issue of title of land, as fraudulent, collusive and not being conclusive. On this aspect, the bench said: “The order is also interspersed with righteous anger against “Englishmen” holding lands in India in violation of law, dis-entitling the landless masses from having benefit of such landholding. We cannot but observe, that the sporadic outbursts made, based merely on indignation against the British Rule, even if justified, are beyond the scope and ambit of a statutory exercise, governed by well-known principles of; acting within the demarcated boundaries of the statutory powers conferred, natural justice and fair play. We would hence, ignore such outbursts made by the SO, as extraneous to the matter in issue.”
The court also observed: “The various orders and certificates issued by Courts, Land Tribunals and Taluk Land Boards cannot be nullified by the SO exercising jurisdiction under the KLC Act. Nor can the SO declare them to be fraudulent, forged or obtained by collusion. If the State has a contention that the orders and certificates issued are fraudulent or obtained by collusion, necessarily proceedings would have to be initiated to set aside the same. An officer authorised to evict unauthorized occupants cannot be permitted to adjudicate on such issues in a summary procedure.”
On other issues
The court said agreements under which the predecessor-in-interest of HML held lands and asserted title, prior to the Indian Independence Act, is unaffected by the said enactment, for reason of the ‘said agreements and deeds not being in the nature of political treaties connected cases and agreements; even if the British suzerainty extended over Travancore or Cochin; which it did not’.
The court also rejected state disputing amalgamation observing that as long as the holding of the transferor company is not vitiated, there can be no challenge raised against the amalgamation, especially by the state who is not a shareholder. The court also said it can find no fault in the foreign company (transferor company) having been amalgamated with an Indian company (transferee company).
State Can’t be a Robinhood
The bench observed that in this case the state willingly succumbed to public outcry, without looking at the legal implications. “The Government is for the people, of and by them, but it is not for the masses alone but exists for each individual. Courage and conviction is lacking when on mere public demand, arbitrary action is perpetrated visiting a citizen with prejudice. A Corporate entity also contributes to the mite of a nation and is constituted of citizens at its helm and at its foundational conglomeration of labour force and managerial staff. The Welfare State exists for the downtrodden and the marginalised, but cannot act like Robin Hood; which would be a negation of the democratic principles and blatant flouting of rule of law; which in the course of the instant proceedings itself, various Benches of this Court had emphasised time and again, in the judgments inter parties.”Read the Judgment Here