Chacko Kuncheria v. Government of T. C. — 1950 DIGILAW 113 (KER)

ORDER : K.S. Govinda Pillai, J. The petition is filed by one Chacko Kuncheria, under S. 18(2) of the High Court Act and Arts. 226 and 238 of the Constitution of India. His complaint relates to 129 acres of paddy lands in the north west of D block in Puthanarayiram in Pulinkunnu Pakuthy. He stated that he was in exclusive possession of the said plot as lessee and cultivated the area in 1124 and 1125. He had also improved the property at great cost during this period. After the harvest in 1125 he was stated to have started preliminary agricultural operations for the cultivation of the property in 1126 as he was entitled to continue in possession under Act VIII of 1950. The 1st counter-petitioner in this case is the State. The 2nd counter-petitioner is the Punja Special Officer appointed to arrange for the cultivation of Kayal paddy lands in Ambalapuzha Taluk. The 3rd counter petitioner is the person who had been now entrusted with the cultivation of the said 129 acres. It was the petitioner's case that the 2nd counter-petitioner had attempted a new lease arrangement by auction for the cultivation of this property during the year 1126. The petitioner had protested against the attempt of the 2nd counter-petitioner, but ignoring the same he proceeded to auction the right to cultivate this land and confirmed the bid in favour of one Thomman Mathan. This procedure adopted by the 2nd counter-petitioner was against the statutory right vested in the petitioner under the provisions of Act VIII of 1950, and so without surrendering possession of the property he had proceeded with the agricultural operations for the cultivation in 1126. Thomman attempted to obstruct the same and so the petitioner was forced to file O.S. 325 of 1950 before the Principal Munsiff's Court, Alleppey on 5.4.1950 against Mathan for restraining him by an injunction from entering upon the property. An interim order of injunction had been passed on 23.5.1950. The Second counter-petitioner had been informed of these proceedings and in order to circumvent the same he induced the State to requisition the land under S. 4 of the Travancore Cochin Public Safety Measures Act V of 1950. The State thereupon passed an order on 20.9.1950, copy of which was Ext. H. Pursuant to the authority conferred on the 2nd counter-petitioner by the order of requisition, the latter issued Ext. The State thereupon passed an order on 20.9.1950, copy of which was Ext. H. Pursuant to the authority conferred on the 2nd counter-petitioner by the order of requisition, the latter issued Ext. G permit to the 3rd counter-petitioner to cultivate the land. The order of requisition as well as the permit issued by the 2nd counter-petitioner were illegal and ultra vires, for the grounds stated in the order of requisition did not exist to the knowledge of the counter-petitioners, and as such the 1st counter-petitioner had no jurisdiction to requisition the property. 2. The order of requisition in so far as it infringed the right of the petitioner under Act VIII of 1950 to continue in undisturbed possession of his lease-hold right to the property was illegal and ultra vires. When the right in respect of the property was the subject matter of dispute in O.S. 325 of 1950 of the Alleppey Munsiff's Court, and when the temporary orders of injunction had been issued by the said court, the order of requisition was stated to be an abuse of the privilege conferred on the 1st counter-petitioner under Act V of 1950. The petitioner also contended that the requisition order was an infringement of the fundamental rights of the citizens guaranteed by Art. 31 of the Constitution of India, as well as under S. 5 of Act V of 1950, as there was no provision in the order to enquire into the question of compensation to which the petitioner would become entitled. Even the order of requisition had directed the 2nd counter-petitioner to enquire into the willingness or ability of persons legally entitled to be in possession to continue the cultivation operations. But ignoring this the 2nd counter-petitioner arranged for the cultivation through private negotiations. This amounted to a wrong assumption of the power conferred on him by the requisition order. The order of requisition by Government and the permit issued by the 2nd counter-petitioner to the 3rd counter-petitioner were therefore liable to be quashed and the petition was for this purpose. 3. The 2nd counter-petitioner on his behalf and on behalf on behalf of the 1st counter-petitioner had filed an affidavit denying mainly the contentions of the petitioner. It was admitted that for the cultivation of this property in 1124 the petitioner purchased the lease hold right from the Punja Special Officer in open auction held on 18.8.1123. 3. The 2nd counter-petitioner on his behalf and on behalf on behalf of the 1st counter-petitioner had filed an affidavit denying mainly the contentions of the petitioner. It was admitted that for the cultivation of this property in 1124 the petitioner purchased the lease hold right from the Punja Special Officer in open auction held on 18.8.1123. As per the terms of this auction the petitioner surrendered his possession as soon as the Kumbhom crop of 1124 was harvested by him. Thereupon on 15.8.1124, the 2nd counter-petitioner auctioned the right to cultivate the plaint property for 1125, and it was bid by one Chacko Job who was none other than the petitioner's brother. The petitioner had not been allowed to participate in this auction since he had defaulted the payment of the dues to the owners in 1124. The allegation that he cultivated the area in 1125 and that he effected improvements in the property were absolutely false. The petitioner had no right to enter upon the property or to start preliminary operations for the cultivation of 1126. The lease for all the Oodukur Punja lands would be auctioned from year to year on the application of the owners. After the harvest of 1125 was over the lessee Job as per the terms of the lease surrendered possession of the property. As usual, the 2nd counter-petitioner conducted the auction of the lease hold right to cultivate the area for the year 1126 on 25.3.1950 and Thomman Mathan mentioned in the petition was the highest bidder. In the auction conducted then the petitioner and his brother Job participated, but they were not successful in bidding it. Both of them had signed the auction diary. It was wrong to say that the petitioner had the right to possess the property under the provisions of Act VIII of 1950. Thomman started agricultural operations, but the petitioner forcibly trespassing into the property and caused obstruction. Thereupon Thomman Mathan presented two petitions before the 2nd counter-petitioner and they were forwarded to Pulinkunnu Police for necessary action. The police had warned the petitioner not to disturb the peaceful possession of the lessee Thomman Mathan. Thereupon, the petitioner as a last resort, filed O.S. 325 of 1950 in the Munsiff's Court of Alleppey and obtained an ex-parte order of interim injunction. This order would not bind the property and the State. The police had warned the petitioner not to disturb the peaceful possession of the lessee Thomman Mathan. Thereupon, the petitioner as a last resort, filed O.S. 325 of 1950 in the Munsiff's Court of Alleppey and obtained an ex-parte order of interim injunction. This order would not bind the property and the State. The allegation that the petitioner protested against the auction in 1125 was not correct. There was a joint petition signed by some of the cultivators in the year 1125 praying that the auction should not be held for 1126 cultivation and that the cultivators of 1125 should be allowed to cultivate at the old rate of pattom. The owners of the property were not agreeable to this and so the 2nd counter-petitioner had to conduct the auction. It was the duty of the Punja Special Officer to see that the entire area of paddy fields was cultivated at the proper time and in the proper manner to the best interest of the State and Public. He had therefore moved the Government for requisitioning this property and leasing it out afresh as the preliminary agricultural operations had to be commenced immediately. Owing to the dispute between the petitioner and the lessee Thomman Mathan nobody was able to start cultivation, and so he apprehended that an extensive area of 2400 acres of paddy fields in the C and D blocks would lie fallow unless prompt action was taken in time. The owners of the land as well as the cultivators of the block became anxious, and representations were made to him for speedy arrangements for the cultivation of the disputed property. This block of 2400 acres lay within a common ring-bund. Intermediate bunding operations and dewatering work had to be done jointly by all the cultivators as common work. The matter was therefore reported to Government and as they were satisfied of the urgent necessity, they requisitioned the land and entrusted the 2nd counter-petitioner to arrange for the due cultivation thereof either by auction or by private negotiation. The seed for this land had been given to Thomman Mathan, and as his brother the 3rd counter-petitioner had agreed to make use of that seed, the property was allowed to be cultivated by him. Otherwise there would have been delay in getting back the seed from Mathan so as to conduct the cultivation. The seed for this land had been given to Thomman Mathan, and as his brother the 3rd counter-petitioner had agreed to make use of that seed, the property was allowed to be cultivated by him. Otherwise there would have been delay in getting back the seed from Mathan so as to conduct the cultivation. The 2nd counter-petitioner and the State had acted only in the best interests of the owners, cultivators, and the general public, so as to avoid the contingency of leaving out 2400 acres of paddy land fallow which may case a loss of two and a half lakhs of paras of paddy to the State and the Public. The petition was not supported by any bona fides and it had to be dismissed with costs. The 3rd counter-petitioner had filed a counter-affidavit in support of the 2nd counter-petitioner's affidavit. 4. The petitioner had filed an answer to both the affidavits filed by counter-petitioners 1 to 3. He had admitted that in 1124 he was the lessee for the western 300 acres of Puthanarayairam which consisted of two sub-blocks. He had cultivated 273 acres out of the same as 27 acres had already been sold in revenue auction. After the harvest of 1124, he admitted, that he surrendered possession of the Southern 140 acres and retained possession of the northern 133 acres, of which he disputed 129 acres formed the major portion. He was in continued possession of the property ever since he became the lessee in 1123. Neither Job the alleged lessee for 1125, nor Thomman Mathan the auction purchaser for 1126, had ever obtained possession of the property. There could therefore be no occasion for Job to surrender the property after the cultivation of 1125. The auction conducted by the 2nd counter-petitioner in 1125 could not bind him or his right in the property. He had even hypothecated the standing crop in the property in 1125 to the Director of Agriculture to get the manure for this and other properties. He had therefore the right to continue in possession and the action of the State in dispossessing him was wrong and illegal. 5. Both sides had produced some documents and those that were admissible had been marked in the case. It was admitted that in the auction held in 1123 the petitioner had taken 300 acres for cultivation. He had therefore the right to continue in possession and the action of the State in dispossessing him was wrong and illegal. 5. Both sides had produced some documents and those that were admissible had been marked in the case. It was admitted that in the auction held in 1123 the petitioner had taken 300 acres for cultivation. The cultivation in that area was on a co-operative basis. Kayal paddy lands were divided into several blocks. There would be several persons owning the definite portions in each block. The cultivation of each block could be conducted only if all the owners co-operated and made preparations for the cultivation. The ring-bunds had to be renewed and in most cases the intermediate bunds had to be put up. The water from the entire area had to be drained, for which contract had to be given for pumping out water. If any one of the owners was not in a position to cultivate his portion of the land it would be causing undue hardship to the other owners, so that the necessary provision had been introduced in the Irrigation Act to enable the State to step in and remedy the evil. They had appointed a Special Officer for this purpose, and on the consent of the owners he would lease out each block by auction for the definite purpose of paddy cultivation. The auction would be to cultivate paddy for one year, so that the bidders were to surrender the property after cultivation. This is the custom in that locality and this is admitted by the petitioner in one of his petitions to the 2nd counter-petitioner. Ext. B is the copy of that petition. It was admitted there, that as per the rules under which the auction was held, and according to the custom, the successor lessee would be entitled to enter upon the land only after the 15th Medom of each year. As mentioned already, the petitioner was the lessee for 273 acres for the cultivation for the year 1124. This is borne out by Ext. I the auction diary. The petitioner would say that after he collected the crops in the year 1124 had surrendered 140 acres out of this and retained possession of 133 acres. But he did not say to whom he surrendered 140 acres. But it could be seen from Ext. This is borne out by Ext. I the auction diary. The petitioner would say that after he collected the crops in the year 1124 had surrendered 140 acres out of this and retained possession of 133 acres. But he did not say to whom he surrendered 140 acres. But it could be seen from Ext. II (ae) the auction diary that the person who purchased the right to cultivate the said land in 1124 and cultivated the same. Under Cl. (q) of S. 108 of the Transfer of Property Act, the lessee is to surrender the entire lease-hold to the lessor. He did not give any explanation as to how under law he was entitled to surrender a portion of the property he cultivated, retaining another portion with him though both the portions were obtained by him under the same transaction. The right to cultivate these paddy lands would not come strictly under the category of "leases" as defined in the Transfer of Property Act. These lands were leased out for the specific purpose of cultivating paddy. He could no use that land for any other purpose, so that he could not get exclusive right to enjoy the so-called lease hold. Though this arrangement was called a lease-hold right, the mere use of such loose terms would not by itself confer on him all the rights of a lessee as is ordinarily understood. Apart from this, it had to be seen whether he had cultivated the said 129 acres in the year 1125. Admittedly, he had not purchased that right in auction. It had been purchased in auction by his brother Job. The petitioner would say that Job did not cultivate the land. Ext. II(c) of Meenom 1115 a petition filed by some of the owners and cultivators before the Punja Special Officer not to auction the land but to allow them to hold the land on the terms of the previous year, would clearly indicate that Job was one of the cultivators. The auction diary Ext. II(a) would show that Job had purchased in auction only this property. He could therefore come in as a cultivator in Ext. II(c) only if he had cultivated the plot he had purchased in auction. In Ext. II(c) this Job was the 9th signatory. No doubt, the petitioner also had signed the petition. He was the 10th signatory. II(a) would show that Job had purchased in auction only this property. He could therefore come in as a cultivator in Ext. II(c) only if he had cultivated the plot he had purchased in auction. In Ext. II(c) this Job was the 9th signatory. No doubt, the petitioner also had signed the petition. He was the 10th signatory. He had not purchased any property in auction. But he had stated that out of 133 acres retained by him, four acres had been purchased by one Joseph Thomas in revenue auction and that he had attorned to him. He might have cultivated the said four acres, or he might have helped his brother Job in the cultivation of 129 acres. At any rate Exts. II(a) and II(c) would show that he could not have cultivated the said 126 acres in the exercise of any legal right. In 1125 he had applied for manure from the agricultural department. The agricultural department referred the matter to the Thahsildar, Ambalapuzha. The latter sent Ext. D certificate stating that the petitioner was the owner of 22 acres and 40½ cents of paddy land and one acre and 5 cents of garden land, and that manure could be advanced on the security of these properties and also on the standing crops in the paddy lands cultivated by him. Pursuant to this he had executed an Udampady Ext. A to the Director of Agriculture where all the properties mentioned in Ext. D were included. He had also included there the standing crops on 133 acres in D Block. There was no certificate issued by the Tahshildar as to whether the petitioner had cultivated the said 133 acres mentioned in Ext. A. At any rate it would be seen that his brother Job was an attest or to Ext. A. Though Job was the actual person who cultivated the land his attestation to Ext. A was sufficient to indicate that he would not advance any claims to the crop in case Director of Agriculture was forced to proceed against the standing crops. Apart from this, Ext. A has no probative value to hold that the petitioner was the person who actually cultivated the land under any legal right. The evidence afforded by Exts. A and D are not sufficient to hold against the auction diary. Ext. Apart from this, Ext. A has no probative value to hold that the petitioner was the person who actually cultivated the land under any legal right. The evidence afforded by Exts. A and D are not sufficient to hold against the auction diary. Ext. II(a) supported by the affidavit of a responsible officer, like the 2nd counter-petitioner. 6. Reliance was also placed on the petitioner filing a suit in the Alleppey Munsiff's Court with Mathan as the sole defendant and obtaining an injunction restraining him from entering upon the property. It could only be stated at this stage that it was rather unfortunate that the court issued ex parte orders of injunction when the dispute was one relating to possession of property. In such cases of disputed possession it would be highly improper for any court to issue an order of injunction against any party unless a very strong case for the same was made out. Courts issuing such injunctions as a matter of course never seem to realise the hardship that would be caused or the mischief that would be done as the result of such hasty acts. It may even be, that in certain cases, the injury may be irrepairable, as in the present instance, for if Mathan was really in possession the injunction issued would certainly cause hardship. Again, if the plaintiff's suit was eventually dismissed, the resulting injury would be beyond measure. Therefore in cases of disputed possession, the courts will be well advised if they bestowed proper attention and exercised due care and caution before orders of injunction were issued restraining a party from entering upon a property. In view of what we have stated already as to the petitioner's right in the property in 1125, the ex parte order obtained by him would not be of any help. On the materials before us it is difficult for us to hold that the petitioner had obtained the right to cultivate these paddy lands in 1125 or that he really cultivated the lands. Being so, he would have no further right over the property for the cultivation of the land in 1125. On this short ground his petition is to be dismissed. 7. On account of injunction issued by the learned Munsiff on O.S. 325 of 1950, Mathen could not enter upon the property to cultivate the land. Mathan was the recognised person entitled to cultivate. On this short ground his petition is to be dismissed. 7. On account of injunction issued by the learned Munsiff on O.S. 325 of 1950, Mathen could not enter upon the property to cultivate the land. Mathan was the recognised person entitled to cultivate. To him alone the paddy required for the seed and cultivation expenses would be paid by the authorities. The petitioner would not be given any allowance for this as he was not the recognised cultivator. There was therefore a reasonable apprehension that the said 129 acres would lie fallow. This would certainly affect the cultivation of the remaining area in that block. The 2nd counter-petitioner admitted that these facts were brought to the notice of the Government, and they in exercise of their powers under S. 4 of Act V of 1950 requisitioned the land and directed him to arrange for the cultivation. Ext. H is that order. It had also been published in the Gazette. The petitioner would say that this order was ultra vires because it did not give any reasons for adopting such a course. S. 4 of the above Act gave the Government wide powers. It stated that if in the opinion of the Government it was necessary or expedient so to do for maintaining, increasing or securing supplies of any essential articles, or for arranging for its equitable distribution and availability at fair prices or for directing, maintaining, storing or increasing the production of any essential articles, or for maintaining services essential to the life of the community or for providing accommodation for officers or servants of the Government or for specified persons or classes of persons or for the holding of public offices, the Government may by order in writing requisition any property, movable or immovable, and may make such further orders as appear to them to be necessary or expedient in connection with such requisitioning. 8. The powers given there are very wide and a similar provision had come up for consideration before a Full Bench of this Court in Aiyamperumal v. Chief Secretary, (1950) 5 D.L.R. (Travancore-Cochin) 193. In that case certain land was requisitioned for purposes specified in S. 19 of that Act. That section also provided that if in the opinion of Government it was necessary or expedient to do for securing the maintenance of public order etc., the Government may requisition. In that case certain land was requisitioned for purposes specified in S. 19 of that Act. That section also provided that if in the opinion of Government it was necessary or expedient to do for securing the maintenance of public order etc., the Government may requisition. The discretion was absolute and no further question could arise upon it, unless it was shown that the requisitioning was actuated by mala fides or manifest fraud upon the statute or that the power conferred by the statute was utilised for some indirect purpose not connected with the object of the Act. Vasudeo Anant v. Emperor (A.I.R. 1949 Nag. 50) is also an authority in support of this position. The circumstances already indicated would show that the Government apprehending that the land in question might remain fallow and cause loss to the owners, cultivators and the general public, requisitioned it. This Court in exercise of its powers is not to interfere in such matters in the absence of any invalidating circumstances. 9. Another objection raised was, that while requisitioning the land, no compensation had been offered to the petitioner as provided for in S. 5 read with Art. 31 of the Constitution of India. The petitioner had no right over the land, and therefore no question of offering any compensation to him would arise in this case. The action of the Government is therefore perfectly justified. 10. In view of what we found above, the question whether the petitioner is entitled to a writ in the nature of mandamus does not at all arise for consideration. We therefore decline to interfere in this matter. We dismiss the petitions with costs. Counter-petitioners 1 and 2 will get Advocate's fee of Rs. 100 (Rs. One hundred) and the 3rd counter-petitioner will get Advocate's fee of Rs. 50 (Rs. Fifty). Petition dismissed.