Seshadranath Sarma v. Chief Secretary — 1950 DIGILAW 48 (KER)

Judgment :- 1. These petitions are by two different persons who have put up buildings in S. No. 843/B of the Kannan Devan Hills Pakuthy. This property was originally enjoyed by the Kannan Devan Hills Produce Company under a long term lease from the Government of Travancore. This survey number along with the adjoining property had been acquired by Government of Travancore in 1941 for the use of P.H.E. Project, Munnar. The petitioners stated that under the impression that this survey No. 843/B was waste land belonging to Government, the P.W.D. at Munnar allowed them to put up buildings for residential purposes. The petitioner in O.P. 15 of 1950 though an Advocate was also a P.W.D. contractor and he wanted a residential quarter in Munnar to carry on his business. The father of the petitioner in O.P. 15 of 1950 was one Narayanaswami who died in Thulam 1125. He was a vakil in Devicolam and it was stated that he wanted to put up building as a residential quarter for carrying on the education of his children. These two persons had however constructed buildings in portions of this survey number. It was stated that when the construction of the buildings was started the Kannan Devan Hills Company intervened claiming the plots as part of their area. The petitioners therefore obtained sanction of the said company in the matter of the occupation and construction. This was in 1933. Subsequently in 1940 the Government of Travancore at the instance of the P.W.D. took action under the Land Acquisition Act for acquiring an area of about 16 acres out of the concessional area granted to the Company. The plots where the two buildings of the petitioners in O.P. 15 and 16 of 1950 had been constructed were also included within the area acquired by Government. In carrying out the acquisition proceedings the buildings of the petitioners were excluded and they were not made parties to the proceedings. No notice of the steps taken by the Government under the Land Acquisition Act was issued to them so that the proceedings terminated as regards the bare plot alone apart from the buildings. The petitioners were therefore under the impression that they could be granted the plots on which their buildings stood. No notice of the steps taken by the Government under the Land Acquisition Act was issued to them so that the proceedings terminated as regards the bare plot alone apart from the buildings. The petitioners were therefore under the impression that they could be granted the plots on which their buildings stood. Contrary to their expectations the Government on the advice of the Chief Engineer proposed to take over the entire area even though to their knowledge it involved a going back on their prior commitments so far as the petitioners and the plots in their possession were concerned. Notice was therefore issued by the Tahsildar, Devicolam directing the petitioners to remove themselves and the buildings failing which action was threatened under the Land Conservancy Act. 2. It had been stated that the petitioners had unauthorisedly erected the buildings at a time when the site was the property of Government. On the refusal by the petitioners to conform with the Tahsildar's demand the latter started proceedings against the petitioner in O.P. 15 as L.C. 37 of 1122 and against the petitioner's father in O.P. 16 as L.C. 36 of 1122 under the Land Conservancy Act. But before the proceedings terminated in any final order for eviction or otherwise the petitioners applied to the Government and obtained stay of the further trial. Their prayer to give these plots permanently to them or on Kuthakapattom was however later on rejected by the order dated 21.4.1950. The order directed the District Collector, Kottayam to push through the eviction proceedings after giving the petitioners the option to remove the structures within a month. If they failed to do so, the buildings were directed to be dismantled and the materials auctioned by the Government at the petitioner's risk. On further representation to Government to reconsider as the petitioners had not offered the buildings for sale to Government their prayer could not be considered. 3. Purporting to execute the orders of Government dated 21.4.1950 and 24.5.1950, the Tahsildar, Devicolam, issued notice on 25.5.50 stating that the buildings not having been dismantled would be sold in public auction on 10.6.1950 and that the petitioners would be evicted from the property. 3. Purporting to execute the orders of Government dated 21.4.1950 and 24.5.1950, the Tahsildar, Devicolam, issued notice on 25.5.50 stating that the buildings not having been dismantled would be sold in public auction on 10.6.1950 and that the petitioners would be evicted from the property. According to the petitioners the orders passed by Government and the notice by the Tahsildar were illegal and passed without jurisdiction and could not be allowed to affect the rights of the petitioner to continue to occupy the plots in question and the buildings thereon. According to them they were entitled to have the plots in question granted in their favour either by way of registry or on Kuthakapattom as the Government was bound by their covenants and acts to ensure to the petitioners the free and unfettered use of their residential quarters. According to them the order for the eviction of the petitioners without finalising the proceedings under the Land Conservancy Act started in 1122 as L.C. Nos. 37 and 36 of 1122 was totally without legal justification. The provisions of the Land Conservancy Act, they further contended, could not themselves apply in as much as (a) the land acquisition proceedings with regard to the plot alone apart from the super-structure could not vest a right in the Government to claim the plots free of their burdens and (b) the land had been occupied and built upon with the sanction of the K.D.H. Produce Company, the original owners long before the plot was sought to be made Government land. In this matter therefore the Government were not entitled to take the law into their own hands and ignore the petitioners' possession of the site at all relevant times and proceed to evict the petitioners and remove the buildings otherwise than in due course of law. 4. The petitioner in O.P. 15 of 1950 had also pleaded that the Government had recognised his possession as water amenities were provided by the P.W.D. authorities under special agreement dated 22.8.1936 with him. The petitioner in O.P. 16 of 1950 had also pleaded estoppel on the part of the Government for the Government had on or about May 1937 taken his building on rent for the P.H.E. staff as they were badly in deed of quarters for occupation. His father had been given a rent of Rs. The petitioner in O.P. 16 of 1950 had also pleaded estoppel on the part of the Government for the Government had on or about May 1937 taken his building on rent for the P.H.E. staff as they were badly in deed of quarters for occupation. His father had been given a rent of Rs. 50/- a month and the letter No. 1300 dated 5.5.1937 from the Resident Engineer, P.H.E. Projects detailing the terms of the lease arrangement would bear this out. The rent was being regularly paid even for 4 or 5 years after the land on which the building stood was acquired by Government. 5. These petitioners therefore prayed for issue of a writ in the nature of mandamus restraining the counter-petitioners from interfering in any way with the petitioners' possession of the plot and the buildings mentioned in their affidavits and also to issue a writ in the nature of certiorari and prohibition quashing the orders of Government dated 21.4.1950 and 24.5.1950 and of the Devicolam Tahsildar dated 25.5.1950 for eviction of the petitioners from the property and the sale of the buildings thereon by public auction or otherwise. 6. The Chief Secretary to Government is the first counter-petitioner and the Tahsildar, Devicolam the second counter-petitioner. The Tahsildar, Devicolam has filed counter affidavits in both the petitions. 6. The Chief Secretary to Government is the first counter-petitioner and the Tahsildar, Devicolam the second counter-petitioner. The Tahsildar, Devicolam has filed counter affidavits in both the petitions. In these affidavits it had been stated that the possessory rights over the two plots involved in these cases were in the possession of K.D.H. Company, that the possessory rights over the said plots among others was transferred by the company to Government, that it was not correct to say that the plots were lying as waste and under marketed lands, so that the P.W.D. authorities believed and acted as if they were parts of the lands within their control, that the power of disposal and control of Government lands was not with the P.W.D. authorities, that the statement that the petitioner obtained sanction from the P.W.D. authorities to clear the plots and put up buildings thereon was not admitted, that even if such permission had been granted it would not bind the Government as the same was beyond the scope of the P.W.D., that the petitioners could not acquire and had not acquired any legal rights to the plots nor was there any valid permission to put up buildings thereon, that no special right would be conferred on the petitioner in O.P. 15 of 1950 by reason of the providing of water amenities to his building by the P.W.D. authorities or on the petitioner in O.P. 16 of 1950 by reason of the renting out the building to the P.H.E. employees, that the petitioners had not obtained any sanction from the K.D.H.P. Company for putting up buildings, that the petitioners were mere trespassers or squatters with no manner of right or title to the site where the buildings were put up, that the acquisition of 16 and odd acres by Government was for a public purpose, that the inclusion of the plots in question within the acquisition area was never intended to ensure to the petitioners the benefit of their buildings investment, that the petitioners were excluded in the acquisition proceedings because they had no legal right in the acquisition area or any portion thereof, that they were therefore neither proper or necessary parties, that the Government had never held out any hopes to the petitioner to give the lands on Kuthakapattom or permanent tenure, that the construction of the buildings on the plots in question being unauthorised notices were issued to them by the Tahsildar and proceedings were taken under the Land Conservancy Act to evict them, that these proceedings were perfectly valid and legal and that they were not entitled to any reliefs. 7. The petitioners in both the cases had called upon the Government to produce certain records. Most of them were produced and both sides were agreeable to go on with the trial of the petitions with the documents on record. Since the genuineness of these records were admitted by the contesting parties, they were marked and arguments of both sides were heard. The questions arising in both the petitions are the same. They are (1) whether the orders passed by Government on 21.4.1950 and 24.5.1950 were passed with jurisdiction or whether they were ultra vires and (ii) whether the steps taken by the Tahsildar, Devicolam by issuing a notice on 25.5.1950 stating that the buildings would be dismantled and sold in auction on 10.6.1950 was in accordance with the authority vested in him under any provisions of law. 8. The petitioner in O.P. 15 of 1950 had put up the building long before the Government acquired this property and this is evident from Ext. A (in O.P. 15) an agreement entered into between him and the Assistant Engineer, High Range Sub-Division for and on behalf of the Government on 22.8.1936. By this agreement the Government undertook to extend the water pipe line to his building in question. Likewise it was seen that the father of the petitioner in O.P. 16 had also constructed the building before 1937. Ext. III in O.P. 16 of 1950 is a letter dated 22.4.1937 from the Assistant Engineer to the petitioner's father intimating that the Government had sanctioned to take on rent his building at Rs. 50/- a month and that possession of the building was to be handed over with the minimum possible delay. Ext. IV dated 5.5.1937 is the letter from the Resident Engineer to Mr. Narayanaswami Iyer the father of the petitioner in O.P. 16 of 1950 setting out the terms under which he would be taking over the building in question. It could be seen from Exts. C and VI in O.P. 16 of 1950 and Ext. S in O.P. 15 that the land was acquired by Government in 1116, i.e. in 1941. Thus before the land in question was acquired the buildings had been constructed by the petitioners in the property. It could be seen from Exts. C and VI in O.P. 16 of 1950 and Ext. S in O.P. 15 that the land was acquired by Government in 1116, i.e. in 1941. Thus before the land in question was acquired the buildings had been constructed by the petitioners in the property. In the affidavit of the Tahsildar it had been stated that neither the K.D.H.P. Company nor the P.W.D. authorities had given any permission to the petitioners to construct the buildings in this survey number. That is against the records produced in this case by the State on the application of the petitioners. It would appear that about the year 1937 there was a proposal on the part of the Government to acquire the land including the plots on which the buildings stood. Ext. L is copy of a letter from the Executive Engineer, Alwaye Division to the Resident Engineer, P.H.E. Project, Munnar. It contains copy of a letter dated 27.11.1935 from the General Manager, K.D.H.P. Company to the Assistant Engineer, High Range Sub Division Munnar. Reference is made in that letter to the erection of the buildings in the land proposed to be acquired thus: "As you are probably aware the late Assistant Engineer gave permission to several persons to erect buildings on the land. Three permanent houses have been erected and the occupants are now in the act of constructing bridges and a road. At present they are as far as I am aware, paying rent to no one for the land they have occupied and I have called upon them to stop all works on roads etc. until Government formally takes over the land." In forwarding copy of this letter the Executive Engineer stated thus in Ext. L in O.P. 15 of 1950. "As far as I know, the question of acquisition started only after the buildings were started". This letter was sent on 6.5.1940, i.e. at the time when the State thought of acquiring the land a second time. Ext. N dated 11.9.1940 is the letter from the General Manager K.D.H.P. Company, Munnar to the Tahsildar, Devicolam. Ext. 0 is a duplicate of the same sent by the Company to the Resident Engineer, P.H.E. Project, Munnar. This letter was sent on 6.5.1940, i.e. at the time when the State thought of acquiring the land a second time. Ext. N dated 11.9.1940 is the letter from the General Manager K.D.H.P. Company, Munnar to the Tahsildar, Devicolam. Ext. 0 is a duplicate of the same sent by the Company to the Resident Engineer, P.H.E. Project, Munnar. Reference in those letters to the buildings in question was made thus: "The acquisition was agreed to by this Company and verbal application was made by the owners of the buildings in question to commence the building operations pending the acquisition proceedings going through. They were informed that the land was under acquisition by Government and that in the circumstances application should be made to the P.W.D. for permission to build. The owners replied that they had received permission from the P.W.D. but as the acquisition proceedings had not gone through the permission of Mr. Wallace, the then Manager should be obtained. So far as I can gather this permission was granted, but the owners were informed that building would be at their risk and that if the acquisition proceedings were not brought to finality, the buildings would belong to the company as they were built on the land." 9. The correspondence referred to above would show that the buildings were constructed somewhere about 1935 at which time there was a proposal on the part of the State to acquire a portion of the lease-hold land held by the K.D.H.P. Company. The acquisition proceedings were not pushed through till 1940 when the land was really acquired by giving compensation to the company for surrendering their lease-hold right. Before these proceedings terminated the petitioner in O.P. 15 of 1950 and the father of the petitioner in O.P 16 of 1950 had put up buildings at their risk in S. No. 843/B with the permission of the K.D.H.P. Company. There is nothing on record to show that the P.W.D. authorities had given any such permission. At any rate they could have no right to grant any permission as the land was not in the possession of the Government at the time of the construction of the buildings. For the purpose of the present enquiry it is not necessary for me to go into further details except in holding that the buildings in question were on the land before the State acquired the property. Ext. For the purpose of the present enquiry it is not necessary for me to go into further details except in holding that the buildings in question were on the land before the State acquired the property. Ext. C Order in O.P. 16 of 1950 by which the Division Peishkar, Kottayam passed the award acquiring 16.55 acres in S. No. 843/A & B would show that the ground alone had been acquired. It was stated in the preamble portion in that award that the buildings had not been valued as they were not to be acquired. Thus there could not be any doubt or dispute as to the position in which the parties are placed. The ground on which the buildings stand belonged absolutely to the State whereas the buildings belonged to the petitioners in O.P. 15 and 16 of 1950. 10. After the ground was acquired the Tahsildar, Devicolam started proceedings against the petitioner's under the Land Conservancy Act. Ext. B in O.P. 15 dated 4.9.1120 is a notice sent to the petitioner calling upon him to remove his building within a week failing which action under the Land Conservancy Act would be taken against him for eviction. Contrary to the facts it was stated here that the building was erected while the ground on which it was erected was the property of Government. The building was not removed and so L.C. 37 of 1122 was registered against him. Another case L.C. 36 of 1122 was taken against the father of the petitioner in O.P. 16 of 1950. Ext. J in O.P. 15 is the notice given to him under the Land Conservancy Act. On receipt of this notice the petitioner in O.P. 15 of 1950 filed Ext. II petition before the Dewan requesting to register the land on which the building stood in his favour or to grant the same on Kuthakapattom for a term of years. Orders were passed then and there on the petition refusing registration. But report on the other prayers in the petition was called for and till final orders were passed further eviction proceedings were stayed. In that petition there is the clear and unequivocal admission that the land belonged to the Government and that the petitioner had no right over the same. Similar petition was admitted to have been field by Mr. Narayanaswami Iyer also. In that petition there is the clear and unequivocal admission that the land belonged to the Government and that the petitioner had no right over the same. Similar petition was admitted to have been field by Mr. Narayanaswami Iyer also. Final orders on this petition were passed by Government on 21.4.1950 and Ext. F in O.P. 15 is copy of these proceedings. The Government ordered that they did not find any grounds to reconsider the eviction proceedings already ordered, that the stay granted in 1947 was vacated, that District Collector, Kottayam would push through the eviction proceedings, that the parties were not entitled to compensation, that they would however be given the option to remove the structures within one month from the 21st April 1950 failing which eviction proceedings would be carried out and that if they did not move out, the materials would be auctioned by Government at the risk of the parties and the proceeds paid to them as an act of equity. This is a comprehensive order passed on the representations made by Mr. Narayanaswami Iyer, Mr. Seshadrinatha Sarma (petitioner in O.P. 15) and Mr. T.K. Varki. Their petitions were read as paper No. 3 in those proceedings. It would appear that they wanted the Government to reconsider the matter and Ext. G dated 24.5.1950 in O.P. 14/50 is the order passed thereon. That order would show that the petitioner's prayer for stay could not be granted as the parties have not offered their buildings for sale. These are the two orders of Government which are sought to be quashed. These orders only called upon the subordinate officers to carry on the eviction proceedings under the Land Conservancy Act. These orders could not be taken to be final orders in the Land Conservancy Cases 37 and 36 of 1122 started by the Tahsildar Devicolam. 11. It was argued vehemently before me by the leaned Advocate for the petitioner that since the buildings in question had been constructed long before the State acquired the right over the property, S.S, 6 and 9 of Act IV of 1091 could not be resorted to by the revenue authorities to evict them. It was freely conceded by the learned Government Pleader that no final orders had been passed by the Tahsildar in L.C. cases 36 and 37 of 1122. It was freely conceded by the learned Government Pleader that no final orders had been passed by the Tahsildar in L.C. cases 36 and 37 of 1122. It would be open to the petitioners to urge in those cases their objection to the proceedings under the Land Conservancy Act. Since admittedly no final orders had been passed the direction given by the Government in Exts. F and G in O.P. 15/50 could not be deemed to final orders in the matter. They would only mean that in case eviction is ordered the parties were to be given time to remove the buildings. In this view it is not necessary to quash Ext. F and G orders as being ultra vires. So the prayer of the petitioners to declare Exts. F and G orders as these passed without jurisdiction does not arise for consideration in these petitions. Advisedly I do not also express my views about the applicability of S.S, 6 and 13 of Act IV of 1091 to the proceedings now started by the Tahsildar, Devicolam in L.C. cases 37 and 36 of 1122. 12. The Tahsildar's notice Ext. H that in case the buildings were not removed he would auction the buildings on 10.6.1950 was without jurisdiction. The petitioner in O.P. 16 had on receipt of this notice sent Ext. I petition on 30.5.50 to the Tahsildar praying to cancel or withdraw the notice Ext. H and to proceed with L.C. 37 of 1122 already taken against him as prescribed by law. That was the proper course to be adopted by the Tahsildar. He had to conduct an enquiry and then pass an order either dropping the proceedings or compelling the petitioner to vacate the site. In that case the petitioner would have a right of appeal and revision under S.15 of that Act. The Tahsildar could not by his action deny the petitioners their right provided for under the Statute. When such a light of the individual is negatived by precipitate action taken by the Tahsildar, it is the duty of this court to interfere and pass appropriate orders so as to protect the fundamental rights of the citizen. Under such circumstances it is a writ of mandamus that has to be issued from this court to the Tahsildar directing him to do that which is his clear legal duty to do. Under such circumstances it is a writ of mandamus that has to be issued from this court to the Tahsildar directing him to do that which is his clear legal duty to do. The Tahsildar, Devicolam is hereby directed to finalise the proceedings started by him by registering L.C. 37 of 1122 against the petitioner in O.P. 15 of 1950 and L.C. 36 of 1122 against the deceased father of the petitioner in O.P. 16 of 1950 and then proceed under the provisions of Act IV of 1091, if he finds that the petitioners are liable to be evicted. The notices issued by him threatening the sale of the buildings by auction are hereby quashed. A copy of this order will be sent to the Tahsildar, Devicolam for information and compliance. Since the petitioners want to bring in several matters foreign to the scope of the enquiry, I would direct the parties to suffer their costs of these petitions. Petition Allowed.