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2011 DIGILAW 94 (KER)

K. G. Radhakrishna Menon v. State of Kerala

2011-01-21

S.S.SATHEESACHANDRAN

body2011
Judgment : Plaintiffs are the appellants. Suit was one for recovery of possession on the strength of title. Both the courts below turned down the relief canvassed for, and feeling aggrieved, the appeal is preferred. 2. Facts involved in the case in a nut shell are thus: According to the plaintiffs, the suit property belonged to their tarwad viz., Kozhippurath tarwad, and at present they are owners of that property. The property had been leased out in 1884 in favour of two persons by the then owner of the property for a period of 99 years. The lessees were conducting a spinning mill under the name and style “Malabar Spinning and Weaving Company Limited” in the property. However, later, the company was declared as a sick unit by the Government and it was taken over paying an amount of Rs.30,60,724/- to the owners of the company. While taking over the company, the Government proceeded as if the property also belonged to the owners of that company. According to the plaintiffs, the owners of the company had right over only the machinery and building in the property and the ownership over the land remained with the prior title holders, who are at present the plaintiffs. Impeaching the right of the defendants, among whom more particularly the 4th defendant, who now continues to be in possession and enjoyment of the property after the taking over of the land by the Government, the plaintiffs laid the suit for recovery of possession claiming that they are having subsisting title over the property. 3. Suit claim was resisted by defendants 1 to 3 jointly and the other two defendants, defendants 4 and 5 together, with both sets of the defendants disputing the title of the plaintiffs impeaching their entitlement to seek the reliefs set up in the suit. The defendants 1 to 3 contended that, after taking over of the suit property, the sick industry, under the Kerala Sick Textile Undertakings (Acquisition and Transfer of Undertakings) Act, 1985 (Act 27/1985) {hereinafter referred to as ‘Sick Textile Undertakings Act} the entire assets in respect of the suit property including the land, machinery building etc. had vested with the 4th defendant and no more title subsisted with any other person including the plaintiffs. had vested with the 4th defendant and no more title subsisted with any other person including the plaintiffs. The claim raised by the plaintiffs with reference to the lease deed of the year 1884 is not at all valid even under the provisions of the Kerala Land Reforms act was the further contention of these defendants. Defendants 4 and 5 reiterating the contention of the former defendants that after acquisition and vesting of the land with the Government under the provisions of Act 27/1985, asserted that none can claim any right over the property, as such vesting was free from all rights, privileges and other interests over the property. It was further contended, in the alternative, that the lease deed of 1884 conferred on the 5th defendant fixity of tenure under Section 106 of the Kerala Lands Reforms Act. 4. On the materials placed, which consisted of PW.1 and Exts.A1 to A11 for the plaintiffs and DW.1 and Exts.B1 to B4 for the defendants and a report and plan prepared by the advocate commissioner deputed by the court, which had been exhibited as C1 and C2, the trial court came to the conclusion that even on the case set up by the plaintiffs, they have not impleaded all the co-owners, who are having title over the property to claim the recovery of possession of the suit property from the defendants. The documents produced by the plaintiffs to substantiate their title, Ext.A2, copy of a final decree in a suit for partition, Exts.A10 and A11, copies of two partition deeds disclosing conflicting and contradictory derivation of title with different parties, the trial court came to the conclusion that, at best, the plaintiffs who were members of one of the two thavazhies covered by Ext.A10 partition deed under the partition effected thereunder had got one half right alone over the suit property. It was further noticed in the next partition deed entered into later produced as Ext.A11, there was no reference to Ext.A10 partition deed and also of Ext.A2 suit. It was further noticed in the next partition deed entered into later produced as Ext.A11, there was no reference to Ext.A10 partition deed and also of Ext.A2 suit. Analyzing the claim of title in the above back drop as evidenced by the documents produced by them, Exts.A2, A10 and A11, which were banked upon to prove the title of the plaintiffs, with reference to the provisions covered by the Sick Textile Undertakings Act, which spelt out that once an acquisition had been made by the Government of a sick textile industry under the Act, all properties of such textile industry by force of the vesting are freed from any trust, obligation, mortgage, charge, lien and all other encumbrances, and the vesting shall be deemed to include all assets, rights, leaseholds, powers, authorities and privileges and all property, movable and immovable including the lands, buildings, machineries etc, in the Government, it was concluded that the plaintiffs have no subsisting title or right over the suit property. The learned Munsiff taking note that the present suit had been filed 12 years after the vesting of the suit property with the buildings and machineries with the Government under the Sick Textile Undertakings Act and later the 4th defendant by transfer and assignment is presently in possession and control of the suit property, concluded that the defendants have got title over the suit property. With such finding on title in favour of the defendants, but erroneously, approving the claim of fixity of tenure canvassed by them under Section 106 of the Kerala Land Reforms Act as well, the suit was dismissed by the trial court. In the appeal preferred by the plaintiffs, the lower appellate court, after re-appreciating the materials tendered, taking a different view from that of the trial court held that the plaintiffs have title over the property, but, the defendants enjoyed leasehold rights over the properties and it is protected under Section 3(2) of the Kerala Land Reforms Act. Confirming the decree of dismissal of the suit, the appeal was dismissed. As against such concurrent decision, the plaintiffs have preferred this appeal. 5. Confirming the decree of dismissal of the suit, the appeal was dismissed. As against such concurrent decision, the plaintiffs have preferred this appeal. 5. The learned counsel for the appellant contending that the lower appellate court has gone wrong in confirming the decree of dismissal passed by the trial court, after finding title over the land with the appellants holding that they are not entitled to recovery of possession in view of the provisions covered by the Sick Textile Undertakings Act. The provisions covered by the above Act have no applicability to the reliefs canvassed by the plaintiff in the present suit and the ‘owner’ as defined under that Act relate only to the lessee operating and managing the mill, according to the counsel. The finding entered and the conclusion drawn by the lower appellate court that the plaintiffs ought to have approached the Claims Commissioner under the Sick Textile Undertakings Act for compensation since under the Act the right and title over the suit property had been transferred and vested with the Government, and also as the property had been leased out for starting an industrial unit and the lessee had started an industry, there is insulation from eviction of the defendant under Section 106 of the Kerala Land Reforms Act, according to the counsel, are conflicting to one another and cannot be sustained on the facts involved and also under law. 6. Perusing the judgments rendered by both the courts below, with reference to the submission made by the learned counsel for the appellants, I find that though the lower appellate court had differed from the view taken by the trial court as regards the title of the plaintiff over the suit property, it has also finally come to the conclusion that irrespective of the question whether the plaintiffs had previous title as the members of the tarwad from which the property was leased out in 1884 for starting an industrial unit, they have no more right and title over the property in view of the vesting of the tile over the property with the Government under the Sick Textile Undertakings Act. The provisions of this Act are not applicable in adjudging the merit of the claims canvassed by the plaintiff over the suit property as contended by the learned counsel placing emphasis on the definition of ‘owner’ as defined in Section 2(e) of the Act, with a further case that the provisions made to claim compensation from the commissioner in relation to the taking over of the unit by the Government are inapplicable to the plaintiffs, on a scrutiny of the above Act is found to be unworthy of any merit or value. Unfortunately, in the present case, it is seen on perusal of the judgments of both the courts below that the defendants, the State and also the statutory corporation, have not pleaded with specific particulars, the taking over of the industrial unit involved and also the scope and ambit and decisive application over the vesting of the properties with the Government of the industrial unit under the Sick Textile Undertakings Act. 7. The head note of the above Act itself would indicate that such legislation had been passed for the acquisition and transfer of three textile mills named, and the right, title and interest of the owners in respect of such units, with a view to re-organize and rehabilitate such undertakings. These three units, of which one of them, Malabar Spinning and Weaving Mills, Kallayi, Calicut, is situate and operated in the plaint property. It could be seen from the preamble of the Act that the management of the three undertakings had already been taken over by the Central Government under Section 18(aa) of the Industries (Development and Regulation) Act, 1951 (Central Act 65/51). Section 3 of the Sick Textile Undertakings Act clearly spells out that the sick industrial unit, the management of which had already been taken over by the Central Government shall vest absolutely in the State Government, from the ‘appointed day’ with all right, title and interest of the owner in relation to such undertakings transferred to the State Government. Section 2(a) in the above Act defines ‘appointed day’ as the 1st day of September, 1983. So much so, from such appointed day, i.e. 1.9.1983, by virtue of Section 3 of the Act, vesting of all right, title and interest of the owner over the property, in relation to the Sick Textile Undertakings with the State Government occurred. Section 2(a) in the above Act defines ‘appointed day’ as the 1st day of September, 1983. So much so, from such appointed day, i.e. 1.9.1983, by virtue of Section 3 of the Act, vesting of all right, title and interest of the owner over the property, in relation to the Sick Textile Undertakings with the State Government occurred. What is the effect of that vesting is covered by Section 4 of that Act which leave no room for any doubt, that any person having claim over the sick textile undertakings which had vested with the Government is entitled to only compensation moving an application as under the Rules before the Commissioner appointed as contemplated under Section 16 of the Act. The first schedule to the Act indicate that a sum of Rs.30,60,524/- had been earmarked towards the compensation payable on the taking over and vesting of Malabar Spinning and Weaving Mills, which is operated in the plaint schedule property. The definition of ’owner’ as under Section 2(e) of the Act does not include the proprietor, title holder, but only the person or proprietor or lessee or occupier of the Sick Textile Undertakings immediately before the taking over of the management is the argument projected by the learned counsel for the appellant to contend that the plaintiffs who canvassed a claim of title over the property do not come under that definition and as such incompetent to resort to the provisions of the Act for claiming compensation from the commissioner. Sections 3 and 4 of the Act and the effect of the vesting on transfer of the Sick Textile Undertakings with the State Government as spelt out thereunder, leave no room for any doubt whoever claims any interest over the property which had so vested, at the most can claim compensation and that alone. Sub-section (2) of Section 4 reads thus; “All properties as aforesaid which had vested in the State Government under subsection (1) of Section 3 shall by force of such vesting, be freed and discharged from any trust, obligation, mortgage, charge, lien and all other encumbrances affecting it, and any attachment, injunction or decree or order of any court restricting the use of such property in any manner shall be deemed to have been withdrawn.” 8. What is saved from the effect of vesting in Government is only in a suit or appeal or other proceeding which was pending on the ‘appointed day’, 1st day of September, 1983, as covered by sub-section (6) of Section 4 of the Act. An ingenious argument was canvassed by the counsel that only the property of the industrial undertaking, the plant and machineries, but not the property where it is situate are covered by the vesting and transfer in favour of the State Government. That argument deserve to be taken note of only for its rejection. The management of the sick textile undertakings involved has already been taken over by the Central Government before the appointed day and the present Act, Sick Textile Undertakings Act, provided for acquisition and transfer of such undertaking by transfer of the right, title and interest of the owners with the State Government to re-organize and rehabilitate that undertaking. Long after the taking over the management of the sick textile undertakings by the Central Government, presumably with no challenge whatsoever by the plaintiff asserting their title or of any interest in the property where the undertaking was carried out, they have filed the present suit on the premise that the provisions covered by the Sick Textile Undertakings Act are inapplicable to them. The vesting and transfer under the above Act in favour of the State Government of the undertaking and all its properties as indicated earlier by virtue of Section 3 of the Act shall be deemed to have come into effect on the appointed day, 1.9.1983, before which the management of the unit had already been taken over by the Central Government under the Central Act 65/51. The present suit, it is seen, was laid in 1996 advancing a case that the sick textile undertakings, Malabar Spinning and Weaving Mills is operated in the plaint property, which was demised on a lease from the tarwad of the plaintiffs under Ext.A1 dated 28.8.1884. There is no merit in the case projected that the lease is still subsisting in favour of the members of the tarwad and that the sick textile undertakings vested with the Government under Sick Textile Undertakings Act relate only to the machineries and unit and not of the suit property. There is no merit in the case projected that the lease is still subsisting in favour of the members of the tarwad and that the sick textile undertakings vested with the Government under Sick Textile Undertakings Act relate only to the machineries and unit and not of the suit property. In fact, the view taken by the lower appellate court, on the question of title over the suit property with the plaintiffs differing from that of the trial court and that the suit is not bad for non-joinder of parties solely on the basis of the oral evidence, but without examining the quality of evidence tendered stating that the documents produced by the plaintiffs were not challenged, is erroneous, and, in fact, the plaintiffs have not established that they have any subsisting title over the suit property by any worth mentioning evidence, leave alone that they could not set up a title or claim over the property in view of the acquisition and transfer and vesting of the undertaking with all its properties with the State Government under the Sick Textile Undertakings Act. There is no merit in the appeal and it is dismissed.