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2019 DIGILAW 541 (KER)

The Kerala Brahmana Sabha v. Vamana Prabhu, S/o. Gopalakrishna Prabhu

2019-07-10

A.K.JAYASANKARAN NAMBIAR, HRISHIKESH ROY

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JUDGMENT : Hrishikesh Roy, J. Heard Sri.Adarsh Kumar, the learned counsel appearing for the appellant. The respondents 1-3 are represented by the learned counsel Smt. T.Josephine. Respondent Nos.8 and 9 are represented by the learned counsel Sri.T.M.Chandran. The State authorities are represented by the learned Government Pleader Sri.Tek Chand. 2. This Appeal is filed by the Kerala Brahmana Sabha, who were the 5th respondent in the W.P.(C).No.28780/2011. They are aggrieved by the judgment dated 20.6.2014, whereby, the challenge in the writ petition to the order dated 30.9.2011 [Ext.P10] was sustained by the Court, by declaring that the road puramboke land was illegally assigned to the 5th respondent in violation of the Kerala Land Assignment Act and the Rules framed thereunder. The contention to the contrary that the assignment was granted in larger public interest was rejected inasmuch as the benefit of assignment was granted on the basis of a tailor-made report secured from the Village Officer, Ernakulam, which suppressed several material facts including the blocking of ingress and egress and the institutions functioning on either side of the property. The report of the Advocate Commissioner was also relied upon to grant relief to the aggrieved challengers. 3. The assigned land measures 4.41 ares in Sy.No.1573 of Ernakulam Village, and is a prime asset near the Court building and the Siva Temple. The space is categorized as “road puramboke” in the revenue records. When the Ext.P10 assignment order was issued in favour of the respondent No.5, the writ petitioners, inter alia, claimed obstruction of access to their work places. They also contended that undue benefit was conferred to the applicant, by overlooking the mandatory provisions of the Kerala Land Assignment Act and the Rules. 4. Per contra, the 5th respondent projected that a 4 M strip of the road purambokeis kept aside to provide access to the Corporation quarters and on this basis, they contended that the assignment of the remaining land cannot be said to be in violation of the Kerala Land Assignment Act and the Rules, as claimed by the petitioners. 5. Supporting the assignment to the Sabha, the Government stated that 30 years lease was granted to the 5th respondent, and, by virtue of the safeguards incorporated in the impugned order, the Government would be at liberty to reclaim the property in the event of violation of any of the stipulated conditions. 6. 5. Supporting the assignment to the Sabha, the Government stated that 30 years lease was granted to the 5th respondent, and, by virtue of the safeguards incorporated in the impugned order, the Government would be at liberty to reclaim the property in the event of violation of any of the stipulated conditions. 6. To get a clear picture of the ground situation, an Advocate Commissioner was appointed by the Court and following a site inspection he reported that the land is being used as a road by the occupiers of the buildings on either side. The Tahsildar, Kanayannur Taluk, also filed a report to indicate that the assigned land is shown as a 'road ' in the revenue records. 7. Confronted with the above reports, the respondents set up a case that power was exercised under the special provisions in Rule 21 of the Assignment of Land within Municipal and Corporation Areas Rules, 1995 [hereinafter referred to as the “1995 Rules”],and law permits exercise of such special power, in public interest. 8. The learned Judge considered the materials produced before him. Next he referred to Rule 6A(2) of the 1995 Rules, to observe that the land in the Municipal or Corporation area can be assigned only on recommendation of the Corporation Land Assignment Committee but the Cochin Corporation was not a party to the impugned decision. The Court then found that lease under Rule 12(e) of the 1995 Rules can be granted for a limited three years period, but in the case before him the assignment under Ext.P10 was for 30 years. The learned Judge also frowned upon the fact that only nominal rent of Rs.100/-per year was stipulated in the Ext.P10 order whereas the prime land would command very high price. 9. Adverting to the above infirmities as also the report of the Advocate Commissioner that the property proposed to be allotted cannot be utilised (by keeping aside the 4 M passage for the ingress and egress of those using the road), without felling two very old trees, the learned Judge concluded that the Ext.P10 order infringes the norms of the Land Assignment Act and Rules. With this finding the Court quashed the Ext.P10 order, leading to the present Appeal by the 5th respondent. 10. With this finding the Court quashed the Ext.P10 order, leading to the present Appeal by the 5th respondent. 10. For the appellant, the learned counsel Sri.Adarsh Kumar would submit that the appellant, although is a religious organization is also involved in social works, and therefore, the Government was competent to invoke, the special Provisions of Rule 21 of the 1995 Rules in public interest, to assign the land to the appellant. According to the learned counsel, since a 4 M wide passage is kept aside from the road puramboke, the access to the Corporation quarters and others, is not blocked. With these projection Sri.Kumar tries to justify the exercise of the special discretionary power, by the Government. 11. On the other hand, the learned counsel for the respondents/writ petitioners would point out that the application filed by the 5th respondent on 15.1.2010 led to the initial rejection order on 3.5.2011 [Ext.P9], where it was categorically declared that, under the guidelines applicable and in the light of various judgments of the Supreme Court, the assignment application of the 5th respondent cannot be considered. The respondents would therefore argue that the very same application filed on 15.1.2010 cannot thereafter be reviewed within months by invoking the special provisions of Rule 21 to assign the road purambokeland, to a private entity. 12.1. The materials on record reflect that the application (15.1.2010) was initially rejected by the Government through the communication dated 3.5.2011 (Ext.P9). The basis for the rejection can be gathered from the Ext.P19 extract of the Note File which indicates that the Government was of the view that the purambokeland can only be assigned for the benefit of weaker sections and the beneficiary does not belong to such category. 12.2. The applicant however was not thwarted by the negative decision (Ext.P9) and continued with their effort to secure the land, as can be seen from the available material. On the next occasion, the Government firstly opined that public property shouldn't be assigned to private entities. The Supreme Court's judgment on the exceptions to be made only in public interest, was also taken into account. The relevant extract of the Note File (Ext.P23) shows that the application of the appellant was again negated on the ground that the applicant was a religious association. 12.3. The Supreme Court's judgment on the exceptions to be made only in public interest, was also taken into account. The relevant extract of the Note File (Ext.P23) shows that the application of the appellant was again negated on the ground that the applicant was a religious association. 12.3. While under normal circumstances, the Ext.P24 Note would have resulted in a formal rejection, the extract of the Note file produced as Ext.P24 indicates that there was an intervention at that stage by the Minister for Revenue. Thereafter, it was treated as a Special Case, which is not to be quoted as a precedent. Then the earlier decision was reversed to say that the land can be given on 30 years lease at a nominal rent of Rs.100/cent/annum to the 5th respondent. This reversal of decision at the instance of the Minister for Revenue, led to the Ext.P10 order being passed, which is impugned in the writ petition. 13. When we consider the sequence of events that led to the passing of the Ext.P10 order, it is quite obvious that the Ext.P10 order cannot be legally sustained for more reasons than one. At the very outset, we find that the Ext.P10 order was passed notwithstanding the fact that there were two earlier decisions taken on the same application preferred by the Brahmana Sabha, to reject the same, as is evident from the Ext.P9 communication dated 3.5.2011 and the Ext.P23 extract of the Note File dated 11.7.2011. It is difficult to comprehend how the Government could review its own earlier decisions on the applications submitted by the Brahmana Sabhain the absence of an express power of review conferred on it, under the statute. 14. Even assuming that there was some legal basis on which the Government could take a different view on the applications, in our opinion, the order subsequently passed [Ext.P10] must reflect the reasons that weighed with the Government for the changed views, and also the justification to exercise the special power under Rule 21 of the 1995 Rules. But in the Ext.P10, no such reason is discernible. 15. The requirement of furnishing reasons, when it comes to administrative or quasi-judicial orders, cannot be understated. But in the Ext.P10, no such reason is discernible. 15. The requirement of furnishing reasons, when it comes to administrative or quasi-judicial orders, cannot be understated. As observed by the Supreme Court in J. Ashoka v. University of Agricultural Sciences and Others, (2017) 2 SCC 609 , the reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached, for only in this way the opinions or decisions recorded can be shown to be manifestly just and reasonable. The said observations of the Supreme Court have to be read in the context of the settled position in Law that the reasons for an order have to find mention in the order itself. 16. That is why in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR (39) 1952 SC 16, Justice Vivian Bose made the following important observation:- “public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” 17. The above proposition was later quoted with approval by a Constitution Bench in Mohinder Singh Gill and Another v. The Chief Election Commissioner, New Delhi and Others, (1978) 1 SCC 405 , wherein, Justice V.R. Krishna Iyer stated as follows: “The second equally relevant matter is that when a statutor functionary makes an order based on certain grounds, its validit must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.” 18. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.” 18. The upshot of the aforesaid observations of the Supreme Court is that the legality of the Ext.P10 order must be tested on the touchstone of the reasons stated therein. It is however seen that no reasons are stated in the order for the altered views expressed therein, with regard to the assignment of land to the same applicant. 19. That apart, we might also observe that, in the instant case, as is evident from the extract of the Note File produced as Ext.P24 that, it was the intervention of the Minister that in fact was the effective cause for the change in the decision of the Government. On this aspect we may benefit by referring to Sir William Wade and Christopher Forsyth in the 10th Edition of Administrative Law “if the minister's intervention is in fact the effective cause, and if the power to act belongs to a body which ought to act independently, the action taken is invalid on the ground of external dictation as well as on the obvious grounds of bad faith or abuse of power.” 20. In our assessment, the above observations would apply with equal force to the facts of the instant case, where we find that, barring the intervention of the Minister, there is nothing in the Note File that would suggest that the decision of the Government to assign the land by way of lease to the Brahmana Sabha was prompted by public interest. This assumes importance when we look at the provisions of Rule 21 of the 1995 Rules, which clearly state that the special power vested in the Government is to be exercised only if the Government considers it necessary to do so, in public interest. We do not however see the said condition being satisfied in the instant case. Thus, for the reasons recorded by the learned Single Judge in the impugned judgment, as supplemented by the reasons supplied by us in this judgment, we dismiss this Writ Appeal.