Research › Search › Judgment

Kerala High Court · body

2011 DIGILAW 348 (KER)

Joemon Joseph v. Tahsildhar

2011-03-25

K.T.SANKARAN

body2011
JUDGMENT 1. Since common questions are involved in these Arbitration Requests, by agreement of parties, these Arbitration Requests are disposed of by this common judgment. 2. The question involved in these Arbitration Requests is whether any dispute or difference between the Government or their officers on the one hand and the grantee of a patta and order of assignment of land on registry for rubber cultivation under the Rules for the Assignment of Government Land for Rubber Cultivation, 1960 (hereinafter referred to as the ‘Rules for Rubber Cultivation’) or his successors in interest on the other, is arbitrable under the Arbitration and Conciliation Act, 1996 by the District Collector as provided in the order of assignment of land on registry for rubber cultivation or whether the arbitration clause would not apply in a case where the assignment on registry is proposed to be cancelled. 3. The applicants in A.R.No.43 of 2010 are the successors in interest of Sri. Ouseph Thoma. Land was assigned on registry to Ouseph Thoma under the Rules for Rubber Cultivation. It is stated that originally the lands were licensed for rubber cultivation, for a period of ten years. On completion of the original period of ten years, the land in question was assigned on registry to Ouseph Thoma. The ownership and possession of the property vested in the applicants by subsequent transfers. 4. The case of the applicant in A.R.No.44 of 2010 is that the land involved therein was assigned on registry under the Rules for Rubber Cultivation in favour of one K.A. Joseph. Originally, the land was licensed to him for a period of ten years for rubber cultivation. On completion of the period of ten years, the land was assigned on registry to K.A. Joseph. By change of hands the ownership and possession of the property came to vest in the applicant. 5. The case of the applicant in A.R.No.45 of 2010 is that the land involved therein was assigned on registry under the Rules for Rubber Cultivation in favour of T.V. Cherian and Ouseph Varghese. Originally, the land was licensed to them for a period of ten years for rubber cultivation. On completion of the period of ten years, the land was assigned on registry to T.V. Cherian and Ouseph Varghese. By change of hands, the ownership and possession of the property came to vest in the applicant. 6. Originally, the land was licensed to them for a period of ten years for rubber cultivation. On completion of the period of ten years, the land was assigned on registry to T.V. Cherian and Ouseph Varghese. By change of hands, the ownership and possession of the property came to vest in the applicant. 6. In the aforesaid three cases, the assignees were granted Annexure A1 patta. An order of assignment of land on registry for rubber cultivation was also issued to the respective assignees. Those assignees, as stated earlier, were granted licence for rubber cultivation for a period of ten years under the Rules for Rubber Cultivation and on expiry of the period of ten years, the land was assigned on registry under Rule 8 of the Rules for Rubber Cultivation. Annexure A1 patta and the order of assignment of land on registry were issued in their favour. 7. The patta contains the following conditions: “1. The assignee shall not use the land or suffer it to be used except for the purpose for which it is assigned. 2. The assignee shall permit the Officers of Government to enter upon the lands aforesaid to inspect periodically the condition of the land. 3. The assignee shall be liable to pay:- (i) Value of the land at 16% of the rate per acre fixed by Government subject to a minimum of Rs.40 per acre. (ii) 25 percent of the land value arrived at 16 percent as mentioned in condition (i) above as a premium in consideration of the loss of Forest Revenue to Government. (iii) Survey and demarcation charges of the assigned land as fixed by Government. (iv) Principal and interest due on the loans taken from Government. 4. All amounts due to Government as mentioned above shall also be a charge on the land. 5. All established rights of way and other easement rights shall be respected by the assignee. 6. Land Revenue or any other tax or fee levied in lieu thereof on the land will be liable for revision. 7. Any difference in the land tax due from the assignee where he is found to have in his possession a greater area of land than that shown in the Patta shall be recovered from him straightway. 6. Land Revenue or any other tax or fee levied in lieu thereof on the land will be liable for revision. 7. Any difference in the land tax due from the assignee where he is found to have in his possession a greater area of land than that shown in the Patta shall be recovered from him straightway. If however he is found to have only a smaller area of land he will be allowed to adjust the difference in the tax paid by him in future payment of tax.” A declaration is to be made by the assignee that he binds himself to the conditions specified in the patta. 8. The order of assignment of land on registry for rubber cultivation, on the basis of which patta was issued, contains fifteen conditions. Conditions 1 and 2 are the same as conditions 3 and 4 in the patta. Conditions 3 to 6, 13 and 14 are the following: “3. The assignee or his successor in interest shall ordinarily reside in the land assigned. 4. The land assigned will be about 1.41 hectare in area of which 1.21 hectares shall be put under Rubber cultivation and the remaining area shall be used for the construction of a dwelling house and for a domestic garden, if so desired by the assignee. 5. The registry shall be liable to be cancelled for contravention of conditions 1 to 3 above or the conditions specified in the patta. 6. In the event of cancellation of the registry, the assignee shall not be entitled to compensation for any improvements he/she may have made on the land. ………. …………. 13. The existing and customary rights of Government and the public in roads, paths, rivers, streams, channels etc. through or bordering the land, and the right of Government in mines and quarries subjacent to the said land are vested and are in no way affected by the grant. 14. ………. …………. 13. The existing and customary rights of Government and the public in roads, paths, rivers, streams, channels etc. through or bordering the land, and the right of Government in mines and quarries subjacent to the said land are vested and are in no way affected by the grant. 14. If any dispute or difference arises between the Government or their Officers on the one part and the grantee or his/her successors in interest on the other part as to the rights, duties, or liabilities of either party in respect of any matter or thing relating to or arising out of the grant or the construction or the meaning of all or any of the conditions herein contained the said dispute or difference shall be referred for settlement by arbitration to the District Collector.” 9. Annexure A2 show cause notice dated 10.8.2009 were issued to the applicants by the Tahsildar directing them to show cause why the patta should not be cancelled. In the show cause notice, it is stated that the respective lands were assigned for rubber cultivation and contrary to the conditions, the applicants indulged in quarrying operations. A stop memo was also issued along with the show cause notice directing the applicants to stop all the activities of quarrying. The applicants in A.R.Nos.43 and 44 of 2010 filed Writ Petitions challenging the stop memo and show cause notice. The Writ Petitions were disposed of directing that the stop memo should be treated as a show cause notice and also directing the Tahsildar to consider the objections raised by the applicants. 10. Thereafter, the Tahsildar, Aluva passed Annexure A3 order dated 9.10.2009 in the case of the applicants in A.R.Nos.43 and 44 of 2010, placing the matter before the District Collector for passing final orders after hearing the competent officers of the Mining and Geology Department. It was also found in Annexure A3 that the land has been partially cultivated with rubber. It was also noticed in Annexure A3 that in the Writ Petitions the High Court held that the Tahsildar would not be competent to revoke the assignment. After making these observations, the Tahsildar referred the matter to the District Collector, as per Annexure A3 order. In the case of A.R.No.45 of 2010, no order similar to Annexure A3 in A.R.Nos.43 and 44 of 2010 was passed. After making these observations, the Tahsildar referred the matter to the District Collector, as per Annexure A3 order. In the case of A.R.No.45 of 2010, no order similar to Annexure A3 in A.R.Nos.43 and 44 of 2010 was passed. It is also seen that the applicant therein had not approached the High Court on getting the show cause notice and stop memo. On the other hand, he submitted objections to the show cause notice. 11. In the case of the applicants in A.R.Nos.43 and 44 of 2010, the District Collector passed Annexure A4 order dated 26.12.2009, directing the Tahsildar to cancel the patta under Rule 8 (3) of the Kerala Land Assignment Rules, 1964. The applicants in A.R.Nos.43 and 44 of 2010 challenged the order of the District Collector in W.P.(C) Nos.3270 and 2982 of 2010 respectively. Those Writ Petitions were allowed as per Annexure A5 judgment and the order passed by the District Collector was quashed on the ground that the order was passed without affording an opportunity of being heard to the affected parties. The District Collector was directed to pass fresh orders, after affording an opportunity to the applicants to file objections and after affording an opportunity of being heard to them. 12. The applicants in A.R.Nos.43 and 44 of 2010, issued Annexure A6 notice to the Tahsildar, Aluva, invoking the arbitration clause in clause 14 of the order of assignment of land on registry for rubber cultivation and requesting the Tahsildar to refer the dispute to the Arbitrator. The applicant in A.R.No.45 of 2010 issued a similar notice to the Tahsildar calling upon him to refer the dispute to the Arbitrator within thirty days of the receipt of the notice. 13. These Arbitration Requests are filed under Section 11 of the Arbitration and Conciliation Act, 1996, to appoint an arbitrator invoking the arbitration clause in the order of assignment of land on registry for rubber cultivation. 14. The applicants contended before the Tahsildar that permits were issued to them to carry out quarrying operations in the land under the Kerala Minor Mineral Concession Rules, 1967 and therefore, there was no violation of the conditions of the order of assignment of land on registry for rubber cultivation. 15. Several events took place before the proceedings were initiated against the applicants. 15. Several events took place before the proceedings were initiated against the applicants. One K.R. Ramanan and another filed W.P.(C) No.9605 of 2008 alleging that one Janardanan and Santha Janardanan representing Gurudevan Metal Crushers, indulged in illegal quarrying of granite using explosive substances, which endangered the life and property of Ramanan and another. W.P.(C) No.9605 of 2008 was disposed of as per Annexure R1(e) judgment dated 13.8.2009, directing the Tahsildar, Aluva to take immediate steps to cancel he patta issued to respondents 3 and 4 (Gurudevan Metal Crushers and Santha Janardhanan) for violation of the conditions of assignment. There was also a direction to realize the value of granite quarried by them. Another direction in W.P.(C) No.9605 of 2008 was the following: “(b) If, any similarly situated assignee has conducted quarrying in the properties assigned to them for rubber cultivation, the 5th respondent shall take appropriate proceedings against them also for cancelling of patta and recovery of value of the granite quarried by them, after affording an opportunity of being heard to them as in the case of respondents 3 and 4 as directed above.” 16. W.A.No.1908 of 2009 was filed by respondents 3 and 4 in W.P.(C) No.9605 of 2008. The Writ Appeal was disposed of as per Annexure R1(f) judgment by which, the appeal was allowed in part and the direction to recover the value of granite from the appellants was set aside. The other findings and directions in W.P.(C) No.9605 of 2008 were sustained. It was also clarified in the appellate judgment that cancellation of patta would be confined to the particular land. Though a Special Leave Petition was filed before the Supreme Court, the judgment in the Writ Appeal was not interfered with. 17. In the counter affidavit filed by the respondents, the following contentions are raised. The term ‘dispute’ as contemplated in clause 14 of the order of assignment does not include violation of the conditions of patta. The land was originally assigned for rubber cultivation and the purpose of the grant was rubber cultivation. Clause 10 of the order of assignment provides that the assignee shall not use the land or suffer it to be used except for the purposes for which it is assigned. Clause 13 of the order of assignment reserves the right of the Government in mines and quarries subjacent to the land assigned. Clause 10 of the order of assignment provides that the assignee shall not use the land or suffer it to be used except for the purposes for which it is assigned. Clause 13 of the order of assignment reserves the right of the Government in mines and quarries subjacent to the land assigned. The patta will be liable to be cancelled for violation of any of the conditions. The patta will be liable to be cancelled for violation of any of the conditions. The applicants quarried granite from the land assigned for rubber cultivation in violation of the conditions of the order of assignment. That would not constitute a dispute as provided in clause 14 of the order of assignment. The arbitration clause is not applicable to contravention of the conditions of patta. Only when a dispute or difference arises between the Government and the grantee as to the rights, duties or liabilities of either party, a reference to arbitration is required. No such dispute has arisen in the case. The Arbitration Requests were filed as an attempt to protract the proceedings. As per clause 14, the disputes are to be referred to the District Collector. The District Collector is the authority to take action against the violation of the conditions of patta. The jurisdiction of the District Collector contained in the statute cannot be taken away by invoking clause 14 of the order of assignment. The Arbitration Requests have been filed to bypass the statutory provisions. After issuing the stop memo, the applicants approached this Court in Writ Petitions and as per the directions in the judgment, the District Collector conducted a hearing. The present applicants amount to abuse of process of the court. 18. The respondent also filed a rejoinder affidavit producing documents, in which, the following contentions are also raised. In W.P.(C) Nos.23292 of 2009 and 23302 of 2009, Annexure R1(d) judgment was passed directing the Tahsildar to pass final orders. The Tahsildar was also given the liberty to forward the records to the competent authority, if he finds that he is not competent to pass orders. Being parties to Annexure R1(d) judgment, the applicants in A.R.Nos.43 and 44 of 2010 are not now entitled to turn round and contend that the Tahsildar cannot proceed further and the matter has to be referred to arbitration. The contention taken by the applicants is barred by ‘estoppal by judgment’. Being parties to Annexure R1(d) judgment, the applicants in A.R.Nos.43 and 44 of 2010 are not now entitled to turn round and contend that the Tahsildar cannot proceed further and the matter has to be referred to arbitration. The contention taken by the applicants is barred by ‘estoppal by judgment’. It is also contended that since the applicants in A.R.Nos.43 and 44 of 2010 did not raise the contention that the matter should be referred to arbitration when they filed Writ Petitions before this Court, the Arbitration Requests are barred by res judicata and constructive res judicata. 19. The Rules for the Assignment of Government Land for Rubber Cultivation, 1960 were framed in exercise of the powers conferred by Section 7 of the Kerala Government Land Assignment Act, 1960. The Rules shall apply to the land under the control of the Forest Department, made available from time to time for planting with rubber under the scheme for rubber cultivation of the Government. Rule 2(a) defines “alienation” as: “Alienation’ includes sale, gift, will, mortgage, hypothecation or lease.” Assignment is defined in Rule 2(b) as: “Assignment’ includes registry, lease or licence.” Assignment for rubber cultivation could be (i) on licence without auction to poor persons who are either agricultural labourers or educated unemployed; and (ii) on sale in public auction to small holders and companies, as provided in Rule 3. Rule 4 provides that the licence granted under the Rules shall be only for the right of occupation and cultivation of rubber on the allotted land. Rule 4 shows that such licence would be granted to agricultural labourers or educated unemployed. Rule 7 states that the licence under the Rules shall be for a period of ten years in the first instance and thereafter may be renewed for a similar period. Rule 8 of the Rules provides that on expiry of the period of licence, the Government may assign such lands to the licensee by public auction or on registry subject to such conditions and restrictions as they deem fit to impose. Rule 8 also provides that the procedure laid down in Sections 4 and 5 of the Kerala Land Assignment Act shall be followed in making such assignments. Rule 12 provides that the registry shall be subject to the payment of the sums mentioned therein. Rule 8 also provides that the procedure laid down in Sections 4 and 5 of the Kerala Land Assignment Act shall be followed in making such assignments. Rule 12 provides that the registry shall be subject to the payment of the sums mentioned therein. Rule 18 states that the licensee or successor in interest shall ordinarily reside in the sites allotted. Rule 20 states that non-compliance with or violation of any of the rules or conditions of licence shall entail the cancellation of the licence and the Government may resume the land without compensation. Rule 25 states that the Government shall be competent to assign land if they so choose, dispensing with any provisions contained in the rules or imposing any terms or conditions not provided for in the Rules. 20. The contention of the applicants is that on the expiry of the period of licence for ten years, the lands in question were assigned on registry under Rule 8 of the Rules for Rubber Cultivation. There is no dispute that resolution of the disputes or differences by arbitration is provided in the order of assignment. The stop memo was issued and the patta was sought to be cancelled on the ground that the assignees, by carrying out quarrying of granite in a portion of the land, violated condition No.1 specified in the patta and thereby rendered themselves liable for the action for cancellation of registry as provided in clause (6) of the order of assignment of land. Writ Petitions were filed by the applicants when stop memo and show cause notices were issued. This Court issued directions to the Tahsildar to pass final orders on the show cause notices. It was also stated in the judgment that if the Tahsildar finds himself incompetent to deal with the issue, he shall forward the same to the competent authority. The matter was referred to the District Collector who passed an order directing the Tahsildar to cancel the patta invoking power under Rule 8(3) of the Kerala Land Assignment Rules. That order was set aside on the ground that the applicants were not heard before passing the order. The District Collector was directed to pass fresh orders. At that juncture, the Arbitration Requests were filed, after making a request to the Tahsildar to refer the matter to arbitration as provided in clause 14 of the order of assignment. That order was set aside on the ground that the applicants were not heard before passing the order. The District Collector was directed to pass fresh orders. At that juncture, the Arbitration Requests were filed, after making a request to the Tahsildar to refer the matter to arbitration as provided in clause 14 of the order of assignment. According to the applicants, clause 14 of the order of assignment would apply, while according to the respondents, the dispute between the parties is not an arbitrable dispute and that a matter which entails in the cancellation of patta is not a dispute coming within clause 14 of the order of assignment. 21. In view of the decision of the Supreme Court in SBP & Co. v. Patel Engineering Ltd. and another (2005 (8) SCC 618), the arbitrability of a dispute is the matter which should be considered by the High Court while disposing of the Arbitration Request. In that decision, the Supreme Court held thus: “The appointment of an arbitrator against the opposition of the parties on the ground that the Chief Justice had no jurisdiction or on the ground that there was no arbitration agreement, or on the ground that there was no dispute subsisting which was capable of being arbitrated upon or that the conditions for exercise of power under Section 11(6) of the Act do not exist or that the qualification contemplated for the arbitrator by the parties cannot be ignored and has to be borne in mind, are all adjudications which affect the rights of parties. It cannot be said that when the Chief Justice decides that he has jurisdiction to proceed with the matter, that there is an arbitration agreement and that one of the parties to it has failed to act according to the procedure agreed upon, he is not adjudicating on the rights of the party which is raising these objections. The exercise of jurisdiction or power, gets all the more emphasized, when sub-section (7) designates the order under sub-sections (4), (5) or (6) as “decision” and makes the decision of the Chief Justice final on the matters referred to in that subsection.” 22. The crucial question to be decided is whether there is an arbitrable dispute in the present case. The Rules for rubber plantation do not provide for cancellation of patta which was granted on assignment on registry. The crucial question to be decided is whether there is an arbitrable dispute in the present case. The Rules for rubber plantation do not provide for cancellation of patta which was granted on assignment on registry. Rule 20 of the Rules for Rubber Cultivation only provides for cancellation of licence. Grant of licence is contemplated to be made for a period of ten years. Rule 8 provides for assignment on registry on the expiry of the period of licence. A specific provision is made in Rule 20 for cancellation of licence. But no such provision is made for cancellation of patta granted on registry. However, conditions could be imposed while granting patta. In the present case, such conditions are provided in the patta and in the order of assignment. The order of assignment itself provides that the registry is liable to be cancelled for contravention of conditions 1 to 3 therein or the conditions specified in the patta. Clause 10 of the order of assignment states that the assignee shall not use the land except for the purpose for which it is assigned. Condition (1) in the patta is also the same. Therefore, if the assignee uses the land or suffer it to be used except for the purpose for which it is assigned, there is no doubt that the registry can be cancelled for contravention of the conditions in the patta. The applicants have no dispute that such a power exists. Their contention is that the dispute in the present case is also a dispute which is arbitrable under clause 14 of the order of assignment. According to the applicants, there is no violation of the conditions specified in the patta. According to them, licences were granted to them for quarrying under the Kerala Minor Mineral Concession Rules, 1967 by the competent authority. They also say that they have cultivated the land with rubber. According to the applicants, quarrying made in the land after getting the necessary licence does not violate the conditions of patta. The question of fact to be decided before cancelling the registry is whether the assignee has used the land except for the purpose for which it is assigned. Whether a dispute on such questions of fact would constitute a dispute within the meaning of clause 14 of the order of assignment, is the material question. The question of fact to be decided before cancelling the registry is whether the assignee has used the land except for the purpose for which it is assigned. Whether a dispute on such questions of fact would constitute a dispute within the meaning of clause 14 of the order of assignment, is the material question. If the contention of the learned Government Pleader is accepted, violation of the conditions in the order of assignment and the patta would lead to cancellation of patta and any dispute or difference between the Government and the assignee in respect of the same would not constitute a dispute within the meaning of clause 14 and in such a case, reference for settlement by arbitration by the District Collector is not required. According to the learned Government Pleader, the power to be exercised for cancellation of patta is quite different from the jurisdiction of the Collector as an Arbitrator to decide the dispute and difference arising between the parties. 23. On a careful consideration of the order of assignment, the conditions of patta, the provisions of the Rules for Rubber Cultivation and the material documents, I am not inclined to accept the contention put forward by the learned Government Pleader. The conditions in the patta and the conditions in the order of assignment are contributory to each other. The order of assignment confers power for cancellation of the registry for contravention of certain conditions specified in the patta. Condition (1) specified in the patta is that the assignee shall not use the land or suffer it to be used except for the purpose for which it is assigned. The same condition finds a place in the order of assignment also (clause 10). Clause 13 of the order of assignment reserves the existing and customary rights of Government and the public in roads, paths, rivers, streams, channels, etc. through or bordering the land and the right of the Government in mines and quarries. Whether use of the land for quarrying as per the permission granted by the authority concerned would be violation of the conditions of the order of assignment or the conditions in the patta, whether the land has been used for the particular purpose for which it is assigned, the consequences of the alleged offending acts, whether the assignee resides in the land assigned are all involved in the decision on questions of fact. On certain aspects, decision on questions of law also may be required. But, predominantly without there being a resolution on the disputed questions of facts, no decision could be arrived at by the authority to cancel the registry to the assignee. What is the nature of the dispute or difference as contemplated in clause 14 of the order of assignment? It covers the rights, duties or liabilities of either party in respect of any matter or thing relating to or arising out of the grant or the construction or the meaning of all or any of the conditions contained in the order of assignment. Any dispute or difference on the construction or the meaning of the conditions in the order of assignment would constitute a dispute within the meaning of clause 14. Any dispute or difference as to the rights, duties or liabilities of either party in respect of any matter or thing relating to or arising out of the grant also would be a dispute within the meaning of clause 14. The words used in clause 14 are very wide to cover any dispute between the parties in respect of any matter or thing relating to or arising out of the grant or the disputes as to the construction and meaning of the conditions contained in the order of assignment. It cannot be said that a decision to be made by the authority to cancel the registry for contravention of any of the conditions 1 to 3 in the order of assignment or contravention of any of the conditions in the patta would in no case involve resolution of a dispute which is covered by clause 14 of the order of assignment. The resolution of such disputes may attract clause 14 of the order of assignment. A question may arise as to what should be done after the settlement of the dispute by arbitration by the District Collector. Settlement of dispute does not necessarily mean a compromise of all the disputes. The settlement of dispute by arbitration includes decision on the disputes as well. If the District Collector, in his capacity as Arbitrator, comes to the conclusion that there was no violation of the conditions of the patta or the conditions of the order of assignment, no further proceedings are required. The settlement of dispute by arbitration includes decision on the disputes as well. If the District Collector, in his capacity as Arbitrator, comes to the conclusion that there was no violation of the conditions of the patta or the conditions of the order of assignment, no further proceedings are required. On the other hand, if it is found that there was violation of the conditions by the assignee, the District Collector in his capacity as the Arbitrator, could pass an order holding that proceedings are to be initiated for cancellation of patta. If remedial measures are sufficient and if they are taken, it is not necessary to cancel the patta. On the other hand, if further proceedings are required, the necessary proceedings as contemplated under the order of assignment and the conditions of patta as well as the Rules could be taken for cancellation of patta. The dispute to be resolved by arbitration is contemplated in clause 14 of the order of assignment. For cancellation of registry of the grantee, several other recourses could be taken on the ground of violation of the terms and conditions. Remedial action could be taken by way of proceedings for settlement of disputes by arbitration. It is not the drastic order of cancellation of patta alone that is contemplated by the Government for each and every violation of the order of assignment of land on registry for rubber cultivation. The approach that each and every violation, though minor in nature, would entail in the cancellation of patta and no other via media is possible, would be too technical an approach. Various contingencies and situations may arise which are beyond the imagination of the rule making authority. Such contingencies could be dealt with and remedial action could be taken by recourse to arbitration, as provided in clause 14 of the order of assignment. For the aforesaid reasons, I hold that the dispute is arbitrable under clause 14 of the order of assignment. 24. The next point to be considered is whether the Arbitration Requests are barred by estoppel or res judicata. The applicants approached the High Court by filing Writ Petitions when stop memo and show cause notice were issued by the Tahsildar. The applicants raised a contention that they made the quarrying operations under a valid licence. 24. The next point to be considered is whether the Arbitration Requests are barred by estoppel or res judicata. The applicants approached the High Court by filing Writ Petitions when stop memo and show cause notice were issued by the Tahsildar. The applicants raised a contention that they made the quarrying operations under a valid licence. The applicants also raised a contention that the Tahsildar has no jurisdiction and only the District Collector has jurisdiction. This Court directed the Tahsildar to treat the stop memo as a show cause notice and to consider the matter. It was also held that if the Tahsildar feels that he has no jurisdiction, he would be free to refer the matter to the appropriate authority. In the order passed by him, the Tahsildar referred to the licence granted to the applicants for quarrying and all the facts and circumstances originating from the Writ Petition filed by K.R. Ramanan and another and held that the matter requires to be considered by the District Collector. Thereafter, the District Collector disposed of the matter directing the Tahsildar to cancel the patta invoking the jurisdiction under Rule 8(3) of the Kerala Land Assignment Rules. That order was set aside by this Court on the ground that the applicants herein were not heard. The District Collector was directed to hear the applicants and dispose of the matter afresh. The matter is now pending before the District Collector. The Arbitration Requests were filed thereafter. The matter to be considered in the Writ Petitions and the matters to be considered in the Arbitration Requests are entirely different. Even after holding that the matter requires an arbitration as provided in clause 14 of the order of assignment, the power could be exercised by the District Collector as directed by this Court in the judgment in the Writ Petition, provided, such a course is necessary on the basis of the arbitration award. It is well settled that the principles of res judicata are applicable to proceedings under Article 226 as well. The District Collector has not passed any final order on the basis of the direction issued by this Court. Therefore, it cannot be said that there was a former decision which would bind the parties and which precludes the defeated party from raising the question again in another proceeding. The District Collector has not passed any final order on the basis of the direction issued by this Court. Therefore, it cannot be said that there was a former decision which would bind the parties and which precludes the defeated party from raising the question again in another proceeding. The essential pre-requisite for applying the principle of res judicata is conspicuously absent in the case. Therefore, I hold that the Arbitration Requests are not barred by res judicata. The further question to be considered is whether the applicants are barred by the principle of constructive res judicata from prosecuting the arbitration proceedings. The principle of constructive res judicata would apply only when the applicants herein might and ought to have raised the plea that the matter is arbitrable and it should be referred to arbitration in the Writ Petitions filed by them earlier. In those Writ Petitions, the questions involved were not the questions which are involved in the Arbitration Requests. Even if the applicants had raised a contention that the dispute required to be resolved by arbitration proceedings, that would not have enabled the applicants to get the relief of appointing an arbitrator in that proceeding. The applicants have filed the Arbitration Requests invoking Section 11 of the Arbitration and Conciliation Act, 1996 and that too after issuing a notice demanding decision by arbitration. The relief which is sought for in the Arbitration Requests could not be granted by this Court in the Writ Petitions filed under Article 226 of the Constitution of India. Therefore, it cannot be said that the applicants might and ought to have raised the contention which they have raised in the Arbitration Requests, when they filed the Writ Petitions earlier. Therefore, I am of the view that the Arbitration Requests are not barred by constructive res judicata as well. The question of estoppal does not arise at all as the estoppal is a rule of evidence preventing a party from avowing one thing at a particular point of time and taking a different stand at another. No such different stands have been taken by the applicants to the detriment of the interests of the respondent and compelling the respondent to alter his position because of the stand taken by the applicants. 25. There is another relevant aspect as well. No such different stands have been taken by the applicants to the detriment of the interests of the respondent and compelling the respondent to alter his position because of the stand taken by the applicants. 25. There is another relevant aspect as well. The District Collector had exercised the jurisdiction and directed the Tahsildar to cancel the patta invoking Rule 8(3) of the Kerala Land Assignment Rules. The applicants contended that the Kerala Land Assignment Rules do not apply at all in matters covered by the Rules for Rubber Cultivation. Rule 1A of the Kerala Land Assignment Rules, 1964 provides for exemptions. Rule 1A says that nothing contained in the Rules shall apply to or affect the different categories mentioned in clauses (i) to (vi) therein. Clause (ii) therein is “assignment of Government lands made for the specific purpose of cultivating tea, coffee, rubber, cinchona and cardamom”. The assignment for the specific purpose of cultivating rubber could be made only under the Rules for the Assignment of Government Land for Rubber Cultivation, 1960. If so, an assignment granted on registry and patta issued invoking the Rules for Rubber Cultivation cannot be cancelled by invoking Rule 8(3) of the Kerala Land Assignment Rules. When such an order passed by the District Collector is challenged under Article 226 of the Constitution of India, the question whether the matter is arbitrable or not is not the question which would arise for consideration while disposing of the Writ Petition. The prayer made in these Arbitration Requests could not be made and the applicants were not bound to raise the same, in the Writ Petitions filed by them. Moreover, the applicant in A.R.Nos.45 of 2010 did not file any Writ Petition and he straight away approached this Court under Section 11 of the Arbitration and Conciliation Act, 1996. 26. The Supreme Court in A.M. Mair & Co. v. Gordhandas Sagarmull (AIR 1951 SC 9) held that when the dispute is one which turns upon the true interpretation of the contract, so that one of the parties must have recourse to the contract to establish their claim, such a dispute, the determination of which turns on the true construction of the contract would be a dispute, under or arising out of or concerning the contract. The test laid down in Heyman v. Darwins Ltd. (1942 AC 356) that “if a party has to have recourse to the contract, that dispute is a dispute under the contract”, was quoted with approval by the Supreme Court. It was also held thus: “Here, the respondents must have recourse to the contract to establish their case and, therefore, it is a dispute falling within the arbitration clause”. In Renusagar Power Co. Ltd. v. General Electric Company and another (AIR 1985 SC 1156), the Supreme Court interpreted the scope and ambit of the expression “arising out of”, “in respect of”, “in connection with”, “in relation to” and “in consequence of” and held thus: “25. Four propositions emerge very clearly from the authorities discussed above: 1. Whether a given dispute inclusive of the arbitrator’s jurisdiction comes within the scope or purview of an arbitration clause or not primarily depends upon the terms of the clause itself; it is a question of what the parties intend to provide and what language they employ. 2. Expressions such as “arising out of” or “in respect of” or “in connection with” or “in relation to” or “in consequence of” or “concerning” or “relating to” the contract are of the widest amplitude and content and include even questions as to the existence-validity and effect (scope) of the arbitration agreement. 3. Ordinarily as a rule an arbitrator cannot clothe himself with power to decide the questions of his own jurisdiction (and it will be for the Court to decide those questions) but there is nothing to prevent the parties from investing him with power to decide those questions, as for instance, by a collateral or separate agreement which will be effective and operative. 4. 4. If, however, the arbitration clause, so widely worded as to include within its scope questions of its existence, validity and effect (scope), is contained in the underlying commercial contract then decided cases have made a distinction between questions as to the existence and/or validity of the agreement on the one hand and its effect (scope) on the other and have held that in the case of former those questions cannot be decided by the arbitrator, as by sheer logic the arbitration clause must fall along with underlying commercial contract which is either non-existent or illegal while in the case of the latter it will ordinarily be for the arbitrator to decide the effect or scope of the arbitration agreement, i.e. to decide the issue of arbitrability of the claims preferred before him.” 27. A harmonious construction of the different clauses in the order of assignment and in the conditions of patta is required. On a harmonious construction of the various provisions in the order of assignment and the conditions of patta, the irresistible conclusion would be that a construction which defeats the arbitration clause should not be adopted and an interpretation which would enable reference to the arbitration without forfeiting the jurisdiction of the authority for invoking the other clauses in the conditions and the order of assignment, should be adopted. For the aforesaid reasons, the Arbitration Requests are allowed. The District Collector, Ernakulam shall resolve the disputes referred to in the Arbitration Requests in accordance with the provisions of the Arbitration and Conciliation Act, 1996.