Harrisons Malayalam Case : Government can't act like Robin Hood; A Corporate Entity also Conributes to the Mite of a Nation

Constitution of India - The Government is for the people, of and by them, but it is not for the masses alone but exists for each individual. Courage and conviction is lacking when on mere public demand, arbitrary action is perpetrated visiting a citizen with prejudice. A Corporate entity also conributes to the mite of a nation and is constituted of citizens at its helm and at its foundational conglomeration of labour force and managerial staff. The Welfare State exists for the downtrodden and the marginalised, but cannot act like Robin Hood; which would be a negation of the democratic principles and blatant flouting of rule of law; which in the course of the instant proceedings itself, various Benches of this Court had emphasised time and again, in the judgments inter partes.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K. Vinod Chandran & Ashok Menon, JJ.

Dated, this the 11th day of April, 2018 

W.P(C) Nos.33122 of 2014-M, 7711 of 2013-L, 5510 of 2015-K, 10320 of 2015-L, 10640 of 2015-D, 10962 of 2015-U, 11598 of 2015-Y, 8437 of 2016-D, 5545 of 2017-S W.A.No.1386 of 2013 W.A.No.71 of 2016, Cross Objection No.12 of 2016 in W.A.No.71 of 2016 W.A.No.198 of 2016, Cross Objection No.43 of 2016 in W.A.No.198 of 2016 W.A.No.239 of 2016, Cross Objection No.42 of 2016 in W.A.No.239 of 2016 W.A.No.240 of 2016, Cross Objection No.46 of 2016 in W.A.No.240 of 2016

PETITIONER(S) 

1. M/S.HARRISONS MALAYALAM LIMITED, 24/1624, BRISTOW ROAD, WILLINGDON ISLAND, COCHIN - 682 003, REPRESENTED BY ITS SENIOR MANAGER - LEGAL SRI.M.V.H.MENON.

2 ABRAHAM ITTY IPE, S/O.A.I.ABRAHAM, 4F, WEST GATE TERRACE, PANDIT KARUPPAN ROAD, THEVARA, KOCHI - 682 013.

BY SRI.K.V.VISHWANATHAN,SENIOR ADVOCATE ASSISTING COUNSEL SRI.GAUTAM BHARADWAJ SRI.E.K.NANDAKUMAR,SENIOR ADVOCATE I/B. SRI.M.GOPIKRISHNAN NAMBIAR ADVS.SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS 

RESPONDENT(S): 

1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

2. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

3. THE SPECIAL OFFICER AND COLLECTOR, STATE SPECIAL OFFICE, GOVERNMENT LAND RESUMPTION FROM HML, PUBLIC OFFICE BUILDINGS, MUSEUM P.O, THIRUVANANTHAPURAM - 695 033. AND OTHERS

R1 TO R3 BY SRI.JAIDEEP GUPTA, SENIOR ADVOCATE I/B. SPL.GOVERNMENT PLEADER SRI.S.B.PREMACHANDRA PRABHU ADDL.R4 & R5 BY ADVS.SRI.R.KRISHNA RAJ SRI.BIJITH S.KHAN ADDL.R6 BY ADVS.SRI.R.KRISHNA RAJ SMT.E.S.SONI SMT.KUMARI SANGEETHA S.NAIR ADDL.R7 BY ADVS. SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA KUM.THULASI K. RAJ SMT.RIYA ROYMOL IYPE

JUDGMENT 

Vinod Chandran, J: 

An Indian Company to which was amalgamated a foreign Company, whether could hold and enjoy the lands that devolved on them by virtue of the amalgamation; when the foreign Company could not have continued holding such lands after India got independence is the essential question raised in these batch of writ petitions, which challenge proceedings for eviction by State, inter alia `alleging fraud, forgery and collusion. The Company, Harrisons Malayalam Limited (for brevity “HML”) is the petitioner in W.P.(C) Nos.7711/2013, 33122/2014 and 8437/2016. The assignees of HML, Gospel For Asia (“GFA”), [W.P.(C) 1386 &14913 of 2013, 5510 & 10640 of 2015 and W.As.239 & 240 of 2016], Boyce Rubber Estates Pvt. Ltd. (“BRE”) [W.P. (C)11598/2015 & W.A. 198/2016], Riya Resorts & Properties Pvt. Ltd. (“RRP”) [W.P.(C)10320/2015], The Travancore Rubber & Tea Company Ltd. (TR&T) [W.P.(C)10962/2015] are the petitioners and appellants in the cases noted against each of them in brackets.

2. HML and its assignees together assert their right to hold the lands absolutely on the basis of title or lease traced back to individuals and the Princely State of Travancore as obtained by the foreign Company, the uninterrupted possession over a century and the revenue records which disclose them to be the owners paying land tax on their respective holdings. The State, at first had been attempting to take over a small extent, out of the larger totaling thousands of acres, under the Kerala Land Reforms, Act, 1963 (the KLR Act) to the extent it exceeds the ceiling limit and is not covered by the exemptions to plantations. Subsequently on other grounds of escheat, lapse and bona vacantia the State seeks to take over the entire extents. The petitioners bow only to the ceiling proceedings under the KLR Act and allege the other proceedings, especially the one under the Kerala Land Conservancy Act, 1957 [for brevity “KLC Act”] which is challenged herein; being without jurisdiction, high handed and in violation of their right under Article 300-A of the Constitution of India. The State; which asserts that the petitioners are in occupation of Government land, recovery of which is permitted under the KLC Act, seeks to neutralize the title and long possession on the plank of the same having been enabled by fraud. Two prominent politicians and other public spirited individuals render support to the State and exhorts this Court to keep the larger public interest in mind when dealing with the allegation of large tracts of land being in illegal possession of a Company; owing allegiance to a foreign Company, when there are numerous landless, deprived people within the State.

3. We have heard learned Senior Counsel Sri.K.V.Vishwanathan instructed by Sri.Gopikrishnan Nambiar for HML, learned Senior Counsel Sri.R.D.Shenoi and Sri.Harin P. Raval instructed by Sri.P.Haridas for GFA, learned Senior Counsel Sri.Joseph Kodianthara instructed by Sri.Abraham Markos for TR&T and Sri.C.P.Mohammed Nias for BRE. Arguments on behalf of the State were addressed by learned Senior Counsel Sri.Jaideep Gupta instructed by Special Government Pleader Sri.S.B.Premachandra Prabhu. The party respondents who got themselves impleaded were represented by Sri.R.Krishna Raj and Sri.Kaleeswaram Raj.

I. History of landholding 

4. The history of landholding, as submitted by HML, is as follows. In the later part of 1800's, Malayalam Rubber & Produce Co. Ltd. [hereinafter referred to as “MRPL”], a Company incorporated and registered in London, held large extents of land in the erstwhile Princely State of Travancore. On 14.07.1921, a new Company, called “Malayalam Plantations Ltd.” [hereinafter referred to as “MP (UK) Ltd.”] was incorporated and registered in England by way of a special resolution and all estates and assets held by MRPL were transferred to the newly incorporated Company. The MP(UK) Ltd. was a Company recognized by the erstwhile Travancore Government to do business in the State of Travancore vide: notification R.O.C.No.2435/1921/Revenue, produced as Exhibit P22(a) in W.P.(C) No.33122 of 2014. On 08.03.1923, document No.1600/1923 was registered at the Sub Registrar’s Office, Quilon by which the estates and assets held by the MRPL was formally transferred to MP(UK) Ltd. The said document was registered as per the Registration Regulation, 1087 (M.E.) of Travancore. Even after Indian independence, MP(UK) Ltd. continued to hold lands and there were also proceedings initiated for exemption under the KLR Act, which were granted by the Land Board of Kerala.

5. Subsequently, on introduction of the Foreign Exchange Regulation Act, 1973 [for brevity “FERA”], MP(UK) Ltd. applied for and obtained permission under Section 29(2)(a) and (c) of the Act for continuing the business in India. MP(UK) Ltd. continued the business in India as per the approval granted by the Reserve Bank of India [for brevity “RBI”] and held lands within the State of Travancore-Cochin and then, the State of Kerala paying tax or lease rent in accordance with the laws applicable. The lands thus held by MP(UK) Ltd. were freehold, leasehold and lands on which fixity of tenure was obtained. On 15.01.1978, Malayalam Plantations India Ltd. [hereinafter referred to as “MP (India) Ltd.”] was registered in India as an Indian Company under the Companies Act, 1956. Since there was foreign holding, necessary approval was obtained by MP (India) Ltd. from the RBI and there was a scheme formulated for amalgamation with the MP(UK) Ltd. The RBI, by communication dated 20.02.1979, agreed to the transfer of the entire business undertaking in India of MP(UK) Ltd. to MP (India) Ltd. with effect from 01.04.1978 and approved a scheme of amalgamation, which was to be then approved by the High Court of Kerala. This Court, in C.P.No.25/1978, by order dated 04.04.1979 approved the amalgamation as per the Scheme of Arrangement of Amalgamation. On 05.05.1979, the RBI approved the takeover of MP(UK) Ltd. by MP (India) Ltd. with effect from 01.04.1978 and also permitted issuance at par of equity shares under Section 19(1)(a) of FERA to Malayalam Plantation (Holding) Limited (UK); again a Company incorporated in the United Kingdom [hereinafter referred to as MP(Holdings) Ltd.].

6. On 02.07.1982, proceedings under the KLR Act were initiated by the Taluk Land Board [for brevity “TLB”] by SW No.36/1981 against MP (India) Limited. The TLB, Vythiri found that out of the total extent of 59,428 Acres of land in possession of the Company, 57,568 Acres stood exempted under the KLR Act and an area of 1,845 Acres was liable to be surrendered as excess land. Earlier, in Claim No.27/1079 M.E., the Court of the Special Forest Settlement Officer (Travancore) by its order dated 10.10.1082 M.E. found that an extent of 3200 Acres mentioned in the impugned order were lands of an erstwhile jenmi Sri.Kiriyan Kiriyan Pandarathil and not Government land. This was confirmed by the High Court of Travancore in its judgment dated 08.07.1084 M.E. in A.S.No.15 of 1083 M.E.

7. Much later on 09.09.1984, Harrisons & Crossfield (India) Ltd. was amalgamated with MP (India) Ltd. based on a Scheme of Arrangement, which was approved by the High Court of Kerala in C.P.No.13/1984. A fresh Certificate of Incorporation was issued by the Registrar of Companies, Ernakulam on 29.10.1984 and there was uninterrupted ownership, possession, enjoyment and payment of taxes due from then on by the new company so formed on amalgamation; HML. The proceedings before the TLB, Vythiri were remanded in C.R.P.No.3661/1982 dated 25.11.1993. The same is still pending before the TLB.

II. History of the Litigation leading to the present one challenging the proceedings under the KLC Act: 

8. From the records we see that the litigation originated with W.P.(C) No.28870 of 2006. The State along with its Departments of Forests, Revenue and Police as also HML and GFA were parties there. Therein, the petitioner was one Advocate practising in this Court, who challenged the sale of 'Cheruvally Estate' by HML to GFA. Exhibit P10 produced therein was an order constituting a High Level Committee to look into the allegations as published in the leading malayalam dailies. The Committee was constituted to look into the details of the land held by HML, the lease conditions as well as any violations thereof, any excess land being so held and any laxity on the part of the revenue or forest officials in perpetrating illegalities; if any. The public interest litigation [PIL] seeking expedient action from the State was directed to be treated as a representation, since it was found that the petitioner did not first approach the Government. The Secretary to Government, Department of Revenue, who represented the State; was directed to look into the matter. The Principal Secretary of Revenue then called a meeting of all the stakeholders, including HML and its assignees. The attendance at the meeting; with the presence marked of each of the persons in the Chambers of the Principal Secretary, Revenue conducted on 24.11.2006, is produced as Exhibit R6(a) in W.P.(C) No.33122 of 2014.

9. Alleging failure on the part of the Government, to take back the lands alleged to be illegaly held by HML, yet another PIL was filed, numbered as W.P.(C) No.30850 of 2007. The High Level Committee went into the complaints raised by several persons in 2005 alleging illegal transfer and sale of lands by HML. Exhibit R6(c) – 'Preface' - indicates that there were a series of press reports published during that period, of illegal and large scale transfer of Revenue and Forest lands given on lease to HML and unauthorised cutting and removal of trees from such lands which led to the constitution of the High Level Committee. The report of the High Level Committee is not produced. The High Level Committee is said to have sought the opinion of a retired Judge of this Court; whose report is produced as Exhibit R6(d). A Special Investigation Team was constituted to look into the allegations raised against HML, which also submitted a report dated 06.01.2010, as is seen at Exhibit R6(e). On the basis of the decision of the High Level Committee, the Revenue Authorities issued prohibitory orders; against HML and its assignees, from enjoying the property, committing waste thereon, cutting trees and so on and so forth; which led to a series of litigation. The State also filed a writ petition under Articles 227 & 228 of the Constitution of India seeking to call for the proceedings pending before the TLB, Vythiri, answer the question of law raised by the State under Article 228 and quash the proceedings; as O.P.(C) No.3508 of 2011.

10. The holders of the property were before this Court in numerous litigation seeking proper maintenance of their holdings as also the plantations which required cutting and pruning of rubber trees and such other activities which would not constitute “waste”. Cutting of trees were permitted on payment of seigniorage, subject to the final result of the writ petitions. It is relevant to look at the batch of writ petitions which were disposed of by a Division Bench of this Court by judgment dated 30.06.2011 produced as Exhibit P22 in W.P.(C) No. 10640 of 2015. The batch of writ petitions included those filed by HML, GFA and also the second PIL above referred. The public interest litigant was specifically concerned with the transfer of lands by HML to GFA, specifically of Cheruvally Estate. The party respondents who were impleaded herein also, in public interest, submit that the question was raised specifically for reason of the subsequent assignee having prohibited access into a temple in the locality which was earlier permitted by HML. The Division Bench found that coercive action against the land holders without deciding on the identity of the property with reference to the survey number and also before the culmination of the proceedings of the TLB, Vythiri was not justified. The proceedings before the TLB, Vythiri were left open and on the basis of the conclusions arrived at, the writ petitions were closed and the challenge to the revision of seigniorage rate was rejected.

11. Review Petitions were filed by GFA, State and the public interest litigant. In the original batch, there was a writ petition filed by GFA against the cancellation of mutation by order dated 11.12.2008 effected by the Village Officer, Kanjirappilly, which was confirmed by the Revenue Divisional Officer and the District Collector. A further proceeding on that basis was issued under Section 12(1) of the KLC Act which was the subject of challenge. Finding that in the circumstance of the orders having been quashed, W.P.(C) No.33628 of 2007 should have been allowed and not closed, R.P.No.676 of 2011 was allowed, in effect allowing W.P.(C) No.33628 of 2007 and setting aside Exhibits P6 and P7 orders which restrained the GFA from cutting trees and removing them from the estate as also reviving the mutation effected in its favour. The review filed by the State was rejected and so was the review filed by the public interest litigant. The report of the High Level Committee, as pointed out by the State and the public interest litigant, was found to have no evidentiary value. The judgment in review is dated 06.01.2012 and is produced as Exhibit P23 in W.P.(C) No. 10640 of 2015.

12. W.P.(C) No.18563 of 2012 challenged a proceeding initiated by the District Collector, Pathanamthitta, under Section 11 of the KLC Act, against 831.52 acres in Survey number 545/1 of Aruvapulam Village. The land was held by HML and the predecessor in interest had obtained the same under a registered lease deed of 1911 from the landlord, Kiriyan Kiriyan Pandarathil. HML claimed that even if the lease expired, there can be no claim raised by the Government since the lessor was a private individual.

A Division Bench of this Court by judgment dated 09.08.2012 found so: “When there is dispute whether the property is puramboke land or the Government land as claimed by the Government or is a private property of the lessor which was demised on the predecessor of the petitioner under Exhibit P10 lease agreement, without considering that question, and that too after affording an opportunity to the petitioner, an order under Section 11 of Land Conservancy Act cannot be passed.” (sic-para 5).

The proceedings were quashed, leaving liberty to the Government to proceed, if permissible under the KLC Act, in accordance with law.

13. The public interest litigant again filed W.P.(C) No.14251 of 2012, which was considered along with another writ petition bearing No.W.P.(C) 213 of 2013. A Division Bench of this Court dismissed the said writ petitions by decision dated 28.02.2013, reported in Harikumar v. State of Kerala [2013 (2) KLT 44]. The State, at the time of hearing before Court, had pointed out that the State had moved a writ petition (O.P.(C) No.3508 of 2011) under Articles 227 and 228 of the Constitution, seeking the proceedings before the TLB, Vythiri to be called to this Court so as to answer the questions regarding interpretation of the Constitutional provisions. The State’s contention was that the land held by HML could not have been so transferred by HML since the predecessor-in-interest being the foreign Company had employed fraud in transferring the properties held by it, which could not have been held after Indian independence; that too in violation of FERA. The attempt of the public interest litigant was to obtain a direction to proceed under the KLC Act. This Court refused to entertain the writ petitions on the ground that no decision of this Court can be obtained to pre-empt a proposed statutory or administrative action and to treat it as caveat or anticipatory clearance for taking up such action. The State was, however, left liberty to proceed under the KLC Act if they are so authorised.

14. The original petition filed by the State under Articles 227 & 228, along with another similar original petition was heard by a Division Bench of this Court on 09.09. 2013. The State sought, calling for the records of the TLB, Vythiri to quash the same as non-est in law. The State claimed declaration that the large extent of land held by the respondent is liable to be forfeited under the Kerala Escheats and Forfeitures Act, 1950. The further question raised was the holding of the predecessor in interest of the respondent being in gross violation of the land laws and FERA. The State asserted a fraud on the Constitution of India, warranting immediate action in public interest and based on public policy as enjoined under Article 296 of the Constitution. The decision is reported as Jagadeesachandran Nair Vs. Mamomohanan Pandarathil [2013 (4) KLT 584]. This Court refused to call for the TLB proceedings, especially noticing the order in a Civil Revision Petition (C.R.P No. 3661 of 1982 dated 25.11.1993 M.P(India) Ltd. Vs. The State of Kerala) remanding certain issues. Considering the long lapse of time the Division Bench refused to exercise jurisdiction under Article 227, to undo the effect of a judicial order passed by this Court. This Court also noticed that the question whether the land is private land or government land was tottally outside the scope of the proceedings pending before the TLB. As for Article 296, its effect was held to be, only vesting in the appropriate State or the Union, of any property, which would have accrued by escheat, lapse or bona vacantia in favour of the predecessor government, being that of His Majesty or the Princely Ruler of an Indian State. Article 296, does “not operate independent of the scheme of the Escheats Act and other provisions which provide due procedure as established by law for taking into possession even such lands, if at all they fall within the category of escheat, lapse or bona vacantia” (sic-para12), was the clear finding. The questions raised under the KLR Act was also found not raising any substantial question of law. On the assertion of violation of FERA, the State was directed to address it before the appropriate forum. This Court rejected the original petitions finding that merely on grounds raised of public policy and public interest, the State; cannot be absolved from taking up due proceedings as mandated by the principles governing rule of law; under cover of Articles 227 and 228.

15. The prohibitory orders issued by the State, without a decision taken on the nature of the proceedings to be commenced, had led to a number of writ petitions being filed by HML; which were W.P.(C) Nos.4877, 7516, 13037 and 17351 of 2014. There were interim orders in favour of HML passed in the said writ petitions and eventually they were disposed of by judgment dated 15.10.2014, reported as HML v. State of Kerala [2014 (4) KLT 371]. Before that the State had appointed a Special Officer to discharge the functions of the Collector under the KLC Act, in the various districts, where HML possessed properties, to recover such properties. Noticing the said appointment this Court in HML-2014 (4) KLT 371, issued clear directions to the Special Officer who was considering the matter under the KLC Act, as to how to proceed. The jurisdictional facts which were to be looked into; being the unauthorised occupation or encroachment into Government land, possession and a dispute to the title or any kind of interest in the property, was highlighted. It was directed that the proceedings under the KLC Act shall be further proceeded with only after deciding the jurisdictional issue. The clear direction was that the preliminary objection raised on jurisdiction should be decided within two months after affording an opportunity of hearing and that the petitioner shall not be evicted till a final decision is taken. After deciding the jurisdictional issue, the final decision had to be taken within a further period of two months. It was also specified that if the jurisdictional issue is found in favour of the State and so was the final decision taken, then, the latter shall remain suspended for a period of one month so as to enable the petitioner to avail appropriate remedies. It is pursuant to Harikumar-2013 (2) KLT 44 & HML-2014 (4) KLT 371 that the impugned proceedings, in this batch of writ petitions were taken.

16. The proceedings taken by the Special Officer, prior to that presently impugned; restraining HML inter alia from cutting trees, alienating lands, inducting strangers and the revenue officials from accepting tax and issuance of possession certificates, were also challenged in WP (C) No. 30955 of 2013. The writ petition was dismissed, refusing to interfere with the orders passed by the Special Officer and making observations about the effect of the decision of the Division Bench in Harikumar-2013 (2) KLT 44. In an appeal filed by HML numbered as W.A.No:586/2015 by judgment dated 03.12.2014 [HML Vs State of Kerala], the said observations were removed. The decision in the writ appeal was however, later to the impugned proceedings herein. The present batch of writ petitions were also heard by a learned Single Judge who referred the matter to the Division Bench, which order has resulted in the matter being placed before us.

III. Reference Order 

17. Before looking at the impugned orders we will first look at the reference order. The learned Single Judge noticed the submissions on behalf of each of the parties and also the findings of the Special Officer as to the jurisdictional competence under the KLC Act. On the question of whether the landholders or the State has to file a suit, the decisions in Kurivilla Yohannan v. Kumaran [1989 (2) KLT 859] and Shamsudhin v. Travancore Devaswom Board [2001 (1) KLT 292] were noticed. The learned Single Judge found that there is no bar, for the Government to file a suit for declaration that the land is a Government land, or the petitioners, to likewise seek a declaration, with respect to the lands which are now being subjected to proceedings under the KLC Act. On the ground of alternate efficacious remedy urged by the State to nonsuit the petitioners, the learned Single Judge noticed the minutes of the committee constituted by the Minister for Revenue to formulate measures for expeditious resumption of land held by HML, wherein there was participation of the appellate and revisional authorities who also held hierarchical positions in the administration. The learned Judge rejected the contention raised against the maintainability of the writ petition, by the State.

18. On the jurisdictional aspect, Shahul Hussan Musaliyar v. State of Kerala & Ors. [2015 (4) KHC 415] was noticed and it was found that the right course for the Special Officer would have been to approach the Civil Court in order to resolve the dispute on title as has been held in Government of A.P. v. Thummala Krishna Rao [(1982) 2 SCC 134] and State of Rajasthan v. Smt.Padmavati Devi (Dead) by LRs. & Ors. [JT 1995 (5) S.C. 481]. The reliance placed by the Special Government Pleader on Laxminarasamma v. Ayadaiah (dead) & Others [(2009) 5 SCC 478] was found to be not relevant. The Special Government Pleader is said to have furnished details of large number of cases in which Purchase Certificates were issued to the foreign Company by a particular officer while another officer has issued Purchase Certificates on the same day in cases with the same S.M.P. numbers (Suo Motu Proceedings) and A.P. Numbers (Appeal Proceedings). Though it arouses suspicion; the learned Single Judge found that due to the absence of further records it is not possible to adjudicate upon the correctness of the same. It was found that “several parcels of land were held on Puthuval pattayams, even contrary to the Puthuval Rules; cherikal lands and edavagai lands, which could not have been given beyond the restricted limits” (sic).

19. It was found that the freehold lands were continued with the foreign Company in violation of the provisions of FERA. The learned Single Judge had apprehensions on the question, of whether a foreign Company is entitled to any benefit under the KLR Act and raised a doubt whether the definition of “person” under the KLR Act could include a Company incorporated in London. The foreign Company did not come under the definition of a “person” under Section 2(43) of the KLR Act, was the finding. The FERA of 1947 and 1973 were noticed. The approvals of the RBI was only with respect to permissions under Section 29(2) and not under Section 31(2) of the FERA, 1973. A prima facie view was entered into, that a foreign Company was not legally entitled to continue business in India or to hold immovable properties. Consequently, there could be no benefit claimed under the KLR Act, since implementation of the National Policy on agrarian reforms; had as its main object protection of the landless from the clutches of the landlords. The socio economic legislation and the object behind it has to be interpreted in a purposive manner as held in Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu [1991 Suppl. (2) SCC 228]. When the foreign Company cannot be treated as a person coming under the purview of KLR Act, then there is no question of the petitioners raising a bona fide dispute on title, found the reference order.

20. Some of the properties covered by the Indenture No.1600/1923 were found to be Edavagai properties of Vanchipuzha Madam, resumed as per Edavagai Rights Acquisition Act, 1955; on account of which, the property got vested in the Government. It was also noticed that there were a number of decisions of this Court in favour of the petitioners, being the order of the TLB, the judgment dated 31.01.2013 of the Hon’ble Supreme Court in R.S.A.No.336 of 2013, the orders of amalgamation dated 04.04.1979 in C.P.No.25 of 1978 and the large number of Purchase Certificates. The learned Single Judge, noticing these conflicting materials referred the matter for decision by the Division Bench. We do not see any specific question being referred to the Division Bench and, hence, we proceed to consider the matter on merits; on consent of parties.

IV. The Individual Cases in the Batch 

21. We see from the batch of cases posted that there are Writ Appeals filed by the petitioners against the reference order; in which the State has filed cross objections. The consideration of the appeals and cross objections would not be necessary since we are not bound by the findings of the learned Single Judge nor is there a requirement to sit in appeal over the reference order. The entire batch of writ petitions were placed before the Division Bench for consideration. A Crl.M.C. filed by GFA and two writ petitions filed by two individuals, who do not claim through HML, which were directed to be posted along with the batch, by orders of learned Single Judges; have been delinked by us after reposting the same.

22. W.P.(C) No.33122 of 2014 is taken as the lead case, in which HML seeks a writ of certiorari against Exhibit P19 dated 28.11.2014 and P20 and P21 both dated 01.12.2014 passed by the Special Officer under the KLC Act. Exhibit P19 decided the question on jurisdiction, Ext. P20 decided the question of encroachment and un-authorised occupation on Government land and Ext.P21 is the consequential notice directing vacation of unauthorised occupation of land. The writ of certiorari is sought on the ground that the 3rd respondent has no jurisdiction to invoke the provisions contained in the KLC Act in respect of the properties held by HML. W.P.(C) No.7711 of 2013 challenge Exhibit P7 order issued by the Additional Tahsildar under the KLC Act for vacation of the land having an extent of 831.52 Acres in Survey No.545/1 of Aruvapulam Village. W.P.(C) No.8437 of 2016 challenge Exhibit P6 order dated 25.02.2016, issued by the Special Officer against HML under the KLC Act. W.A.No.71 of 2016 is filed by HML against the reference order of the learned Single Judge and Cross Objection No.12 of 2016 is filed by the State.

23. W.P.(C) No.5510/2015 by GFA challenge Exhibits P25, P26 and P27 orders. Exhibits P26 and P25 orders passed respectively by the District Collector and Village Officer dated 23.08.2014 and 03.02.2014 prohibit felling of trees in the property purchased by GFA. Exhibit P27 is an administrative order dated 19.12.2014 of the Government of Kerala towards the same end. W.P.(C) No.10640 of 2015, the lead case among that of GFA, challenge Exhibits P32 to P34 issued by the Special Officer. Exhibit P32 dated 16.03.2015 is a notice issued under Section 12 of the KLC Act, Exhibit P33 dated 28.05.2015 is the order passed and Exhibit P34, notice dated 28.05.2015, directing vacation of the land based on Exhibit P33 order. The decision in W.P.(C) No.10640 of 2015 would regulate the fate of the other cases. W.A.Nos.239 of 2015 and 240 of 2015 are appeals from the reference order of the learned Single Judge, in which Cross Objection Nos.42 of 2016 and 46 of 2016 have been filed by the State.

24. There is a Writ Appeal [W.A.No.1386 of 2013] filed against the judgment in W.P.(C) No.14913 of 2013, disposed of directing the petitioner-GFA to comply with the undertaking as given in W.P(C) No. 7379 of 2012. W.P(C) No. 7379 of 2012 was filed against stop memos issued by the Additional Thahsildar restraining the cutting and removing of rubber trees from “Cheruvally Estate”. The stop memos were issued based on a circular, and the impugned proceedings were found to be not in conformity with the circular. Hence the impugned proceedings were set aside leaving the revenue authorities to proceed in accordance with law and in conformity with the circular. The GFA, in W.P.(C) No.14913 of 2013 challenged the further proceedings issued by the revenue authorities claiming that the undertaking as given in the earlier proceedings would stand effaced by the disposal of the writ petition, setting aside the proceedings challenged herein. The learned Single Judge found that proceedings by the revenue authorities, which led to numerous litigation, were still pending and there could be no recusal from the undertaking given in the earlier proceedings. The proceedings initiated by the various revenue authorities, in the eight districts in which HML owned lands have now been taken up by one single officer ie: the Special Officer appointed by the Government under the KLC Act. The proceedings have culminated and the orders passed by the Special Officer are now under challenge in these batch of writ petitions and hence the writ appeal can also be considered alongwith the batch, since the disposal of the writ petitions would decide the writ appeal too.

25. W.P.(C) No.10962 of 2013 is filed by TR&T, an assignee of HML, challenging the notices issued by the Special Officer under the KLC Act, subsequently amended, to incorporate the challenge against the final order passed, dated 28.05.2015, produced as Exhibit P21. W.P.(C) No.10320 of 2015 is filed by RRP, against a notice issued under the KLC Act as also the order of the Special Officer dated 28.05.2015, produced as Exhibit P8 and the notice for eviction of land, of even date, at Exhibit P9. W.P. (C) No.11598 of 2015 is filed by BRE, another assignee of HML, challenging Exhibits P10 and P14 notices issued by the Special Officer and the final order produced as Exhibit P15 dated 08.05.2015. W.A.No.198 of 2016 is filed by BRE itself, against the reference order made by the learned Single Judge. State has filed Cross Objection No.43 of 2016 in that Writ Appeal.

26. One another W.P(C) No.5545 of 2017 is filed as a public interest litigation seeking a direction for C.B.I enquiry, as reccommended by the Special Officer. The Special Officers reccommendation obviously, stems from the orders impugned in the other writ petitions which find large scale fraud having been committed by HML in transferring and holding properties; in collussion with revenue officials as also the apprehensions expressed by the learned Single Judge, in the reference order. This too has a direct bearing on the matter in issue.

V. THE ARGUMENTS 

27. The arguments were opened by learned Senior Counsel Sri.K.V.Vishwanathan, instructed to appear for HML and W.P.(C) No.33122 of 2014 is taken as the lead case. The challenge in the writ petition is against Exhibits P19, P20 and P21 orders passed by the Special Officer appointed under the KLC Act. HML contends that they have been holding the said lands, against which notices were issued by Exhibit P4, P5 and P6; all under the KLC Act. The lands which were more fully described in the notices, except item No.30 in Exhibit P4, are lands held by HML and its predecessor-in-interest, for more than 100 years as free-hold, lease-hold and with fixity of tenure obtained under the KLR Act. The essential contention urged is on jurisdiction, or the absolute lack of it under the KLC Act to proceed against the properties which cannot be said to be either “Government land” or “puramboke land” as defined under the KLC Act. HML asserts their title and possession on the various properties as described in the Schedules. The Special Officer appointed under the KLC Act has absolutely no jurisdiction to proceed against lands owned by anyone other than the Government. The title is traced without interruption to about 100 years prior and has been obtained by the petitioner, a Company registered under the Companies Act, 1956 [for brevity “Companies Act”], by way of an indenture of 08.03.1923 bearing Deed No.1006/1923. The original of the said deed has been deposited before this Court and a copy has been produced as Exhibit P22(b). The submissions revolve on this indenture; the efficacy of which is seriously put to test by the State and the party respondents. HML and its assignees having raised the ground of title, as had been accepted by the Government too, evident from the revenue records; the proceedings are ill motivated, for reason of it having originated on mere paper reports. Further the question of valid title having been raised, the Special Officer appointed under the KLC Act is divested of jurisdiction to further proceed.

28. On the issue of jurisdiction, the learned Senior Counsel relies on Thummala Krishna Rao-(1982) 2 SCC 134 and Padmavati Devi-JT 1995 (5) SC 481 and M.Sankaranarayanan v. Commissioner [(2017) 13 SCC 661] - decisions of the Hon'ble Supreme Court; and the Division Bench decisions of this Court in Banerjee Memorial Club v. Taluk Tahsildar [2016 (1) KLT 241] and Shahul Hassan Musaliyar T.K. v. State of Kerala [2015 (4) KHC 615 (DB). The decisions afore-cited of the Hon'ble Supreme Court were under similar enactments, empowering proceedings against Government lands or puramboke lands for unauthorised occupation; enabling eviction in summary proceedings, wherein there could be no adjudication as such, of title. The Hon'ble Supreme Court in the aforesaid decisions had categorically laid down that there could be no title dispute resolved by an officer of the State so empowered under an enactment, enabling eviction of encroachers into Government lands. The decisions of the Division Bench of this Court above referred are with respect to the proceedings under the KLC Act itself, in which the dictum laid down by the Hon'ble Supreme Court was followed and the proceedings set aside when bona fide disputes on title were raised. It is further argued that a reading of the decisions would indicate; even when there was a cloud on title, long possession of lands, without any objection raised by the State, would divest the authority under the KLC Act from proceeding in a summary manner for eviction and vacation of such possession.

29. The Special Officer has relied on the decision of this Court in the case of HML itself, reported in Harikumar-2013 (2) KLT 44 and the observation of the Hon'ble Supreme Court in S.L.P.No.16748 of 2014 to assert that he has the jurisdiction to proceed under the KLC Act. The SLP filed before the Hon'ble Supreme Court was against the order of a Division Bench in R.P.No.228 of 2014 in W.A.No.434 of 2013 with respect to Mooply estate, which is not a land which is subject matter of the dispute herein. The reliance placed is on the observation of the Hon'ble Supreme Court, made after dismissing the SLP, that the same would be 'without prejudice to the proceedings of the Special Officer under the Land Conservancy Act only if he possesses jurisdiction and without prejudice also to the rights of the parties'. The Hon'ble Supreme Court has not conferred any jurisdiction nor had found valid the proceedings under the KLC Act; as against the properties, which are subject therein or here. The question of jurisdiction and the conflicting rights of parties have been left open to be urged and considered in the proceedings itself. No reliance can be placed on the said observation to assume jurisdiction under the KLC Act, which is otherwise not available. The decision in Harikumar-2013 (2) KLT 44 was also only to the effect of keeping open the authority of the State to proceed against the properties if there is jurisdiction under the KLC Act as against the specific properties now sought to be proceeded against. This has been clarified by another Division Bench in W.A.No:586/2015. The further assertion of the Special Officer is based on the Government notification issued, which only confers jurisdiction under the KLC Act. The specific reference to the properties of HML would not confer jurisdiction under the KLC Act if the said properties cannot be said to be Government or Puramboke lands.

30. The question being one on jurisdiction there can be no plea raised of alternative remedy as has been held in Kuntesh Gupta Vs. Hindu Kanya Mahavidyalay [(1987) 4 SCC 525] and Whirlpool Corporation Vs. Registrar of Trade Marks [(1998) 8 SCC 1]. The attempt of the Government to take over the lands held by HML through colourable exercise of statutory power is a clear abuse of process of law and a writ would be possible as has been held in State of H.P. Vs. Gujurat Ambuja Cement Ltd.[(2005) 6 SCC 499]. It is also urged that there is no alternate remedy available under the KLC Act from an order of the Special Officer appointed under Section 15. The appellate remedy as available under Section 16(1) of the KLC Act, is (i) to the Collector, if the officer authorised under Section 15 is the RDO and (ii) the RDO, in all other cases. The Collector is the revisional authority in case of all orders other than which he is the appellate authority. Subsection (3) provides for an appeal to the Land Revenue Commissioner if the order passed under the Act is by the Collector. Sub-section (4) confers revisional authority on the Land Revenue Commissioner in cases where he does not act as the appellate authority and in others, the Government is the revisional authority as found from sub-section (5). No appeal or revision is provided in the case of appointment of a Special Officer, who presently, is the Director of Survey and Land Records, and is, in the hierarchy of administration above the Collector and equivalent to the Land Revenue Commissioner.

31. Without prejudice to the preliminary objection of the proceedings being bad for lack of jurisdiction, it is asserted that no cloud on their title can be inferred; which the State had accepted for long as revealed from its own revenue records which in any event establish the valid possession of lands for more than a century. The definition of 'person' in the KLR Act specifically includes a Company and it does not distinguish between an Indian & foreign Company. The learned Senior Counsel also took us through the FERA Act, the approvals of the RBI, and notifications to contend that the general approvals granted by the RBI permitted the so called foreign Company to carry on business in India and also hold lands. It was also argued that if at all there is a violation of the FERA, it is not for the Special Officer under the KLC Act to speak on the effect of such violation or bring in consequences penal or otherwise, as has been held by the Hon'ble Supreme Court in LIC of India v. Escorts Limited [(1986) 1 SCC 264].

32. The Indian Independence Act, 1947 [for brevity “Independence Act”] has absolutely no application and the expression “all treaties and agreements”, as held by the Hon'ble Supreme Court in State of Tamil Nadu v. State of Kerala [2014 (12) SCC 696], are not intended to cover agreements which are not political in nature. The sale deeds and lease deeds executed by the State of Travancore and other individuals are not political in nature and remains unaffected by the Independence Act. The Special Officer's finding that the deeds by which HML obtained the lands as freehold and leasehold are by reason of forgery and fraud, is totally unsubstantiated. The Special Officer has repeatedly termed deed No.1600/1923 to be, fraud on the Constitution and the people of India, without anything more than a bland assertion. The document has been registered prior to independence and even after the formation of State of Kerala, the S.R.O., Quilon has issued certified copy of the document to the petitioner. The document has been recognized by Courts, admitted by the Government all along and acted upon by various authorities of Government exercising statutory and administrative functions. The Special Officer's order wherever it was relevant, was read over and the arguments addressed on the specific findings. Specific reference has been placed on the order of the Special Officer, Travancore in Claim No.27/1979, judgment of the High Court of Travancore in A.S.No.15 of 1083 M.E., judgment in O.S.No.4 of 1968 of the Subordinate Judge, Kottarakkara and the admissions made by the State in the written statement filed therein. The State cannot after accepting tax based on the ownership and possession of HML, as revealed from its own revenue records; of the subject properties for so long, turn around and callously castigate deed No.1600/1923, without any substantiating material, to term it fraudlent. Puduval Rules and the Edavagai Assignment Act were read to contend that there cannot be any absolute right flowing to the Government by virtue of the provisions therein, which have been misconstrued by the Special Officer. The right if any taken over was only that of collecting tax; for which due compensation was paid to those who had such right, by virtue of their 'jenmam' rights over the properties.

33. Sri.Harin P. Raval, learned Senior Counsel, appearing for GFA, adopted the arguments of HML. It was argued that GFA was never heard on the preliminary question of jurisdiction. With respect to Cheruvally Estate the aspect of proceedings under KLC Act remains concluded by the Division Bench decisions of this Court, produced as Exhibits P22 and P23 in W.P.(C) No.10640 of 2015. The mutation of Cheruvally Estate in the name of GFA was carried out by the Revenue Department, later cancelled; but restored by that decision of this Court. The ownership and possession of the predecessor-in-interest and HML, had always been accepted by the Government. After such a long period, there could not have been a proceeding initiated under the KLC Act on the premise that the lands belong to the Government. The revenue records of the Government itself shows the contrary and at one stroke it cannot be said that fraud was perpetrated in collusion with Government officials, to assume jurisdiction under the KLC Act. If fraud is alleged then it has to be pleaded and proved in appropriate proceedings in a civil court. The learned Senior Counsel, to support his contentions with respect to the action having not been taken within time, relies on the decisions in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K.Suresh Reddy & Ors. [(2003) 7 SCC 667] and Joint Collector Ranga Reddy District & Anr. v. D.Narsing Rao & Ors. [(2015) 3 SCC 695]. The decisions are relied on also to bring home the point that there cannot be mere assumption of fraud and there should be substantiating materials pleaded and proved.

34. The Special Officer is obviously acting on the dictate of the Government, going by the very terms of appointment which cannot be sustained. The learned Senior Counsel questioned the order also on jurisdiction and maintains that there is no effective alternate remedy available under the KLC Act. Decisions were placed to refute the contention of FERA violation. Palitana Sugar Mills (Pvt.) Ltd. Vs State of Gujarat [2004 (12) SCC 645] was relied on to assert that the repeated proceedings, taking contrary stances, resorted to by the Government; vitiates the entire proceedings, which are characterized as a high handed action of the State to somehow deprive the title holders of their lands. This Court atleast with respect to GFA and “Cheruvally Estate” has held clearly that the KLC proceedings cannot be resorted to and there is shown scant respect to the orders of the Court, which attidude has been deprecated in Palitana Sugar Mills Private Ltd. Vs. Vilasiniben Ramachandran [(2007) 5 SCC 218].

35. It is submitted that the jenmom rights of the lessor in Cheruvally Estate was conveyed by Exhibit P3, in the year 1947, to HML and it was long prior to the transfer effected to GFA. It is submitted that registration is a notice to the Government and Ext.P2, and P3 and the deed of transfer to GFA were registered. It is argued that there cannot be a mere assertion raised of fraud and forgery to nullify the documents of conveyance and it has to be by way of a legal proceeding. State of Kerala Vs. M.K Kunhikannan Nambiar [AIR 1996 SC 906] is relied on to contend that a void document, even on allegations of fraud will have to be set aside in appropriate proceedings. HML and GFA have a valid claim to title of the properties, uninterrupted possession, exemption obtained under the KLR Act as also mutation effected, which divests the authority, under the KLC Act, from exercising jurisdiction which can only be against Government lands.

36. It is argued that action of the Government in appointing the SO and the further proceedings carried on by the SO are vitiated by malice in law. State of A.P. v. Goverdhanlal Pitti [(2003) 4 SCC 739], Mukesh Kumar Agrawal v. State of U.P. [(2009) 13 SCC 693] and Kalabharati Advertising v. Hemant Vimalnath Narichania [(2010) 9 SCC 437] are relied on and it is argued that though there can be imputed, no personal ill will against the State; but still malafides can be alleged against a wilfull and wrongfull act without reasonable and probable cause. Bahadursinh Lakhubhai Gohil v. Jagdishbhai M.Kamalia [(2004) 2 SCC 65] is relied on to buttress the twin contentions of a statutory authority's order being vitiated for reasons of (i) acting at the behest or on the dictate of another and (ii) malafides being writ large in the authority having acted with undue haste.

37. The learned Senior Counsel Sri.R.D.Shenoi specifically refers to Exhibit P22, wherein the Additional Advocate General, on behalf of the State, admitted to the proceedings being continued only under the KLR Act before the TLB, Vythiri. The concept of escheat, lapse and bona vacantia and the violations of FERA are alien to KLC Act. Without admitting, for arguments sake it is pointed out that even if there is a cloud on title, the long possession of HML, the predecessor-in-interest of GFA, takes the lands out of the ambit of KLC Act. It is emphasised that GFA is a bona fide purchaser, that too the purchase having been made after verification of the revenue records, which show HML to be the valid owner in possession of the properties. Section 41 of the Transfer of Property Act, 1882 (for brevity “TP Act”] is read to further resist the impugned orders. HML, if at all, is the ostensible owner who made the transfer in favour of GFA and the State cannot, even if the lands are government lands, take back the property, when a bonafide enquiry by the purchaser of the claim of ownership, at that point, confirmed the title of HML from the revenue records.

38. On the jurisdictional fact to be decided as declared in HML-2014 (4) KLT 371 reliance is placed on Rai Brij Raj Krishna Vs. M/s S.K. Shaw [AIR (38) 1951 SC 115], Chaube Jagdish Prasad Vs. Ganga Prasad Chaturvedi [AIR 1959 SC 492] and Dorothy Beale Vs. George Kurien [1962 KLT 450] to argue that the instant case would be akin to that decided in the last of the above cited. The SO does not have the jurisdiction to decide on the title and jurisdiction conferred under the KLC Act. The power conferred is only to evict unauthorised occupants from Government or puramboke lands. Rame Gowda Vs. M. Varadappa Naidu [AIR 2004 SC 4609] is relied on to argue that possession itself is a very relevant consideration. The rights perfected by long uninterrupted possession cannot be unsettled under the KLC Act. A mere suit for mandatory injunction to demolish certain structures, removal of sign boards raised by the defandants-encroachers, restoration of possession and injunction against further interference was found to be not maintainable without proof of title, which had to be proved by the plaintiff; in Gurunath Manohar Pavaskar Vs. Nagesh Siddappa Navalgund [(2007) 13 SCC 565].

39. Instructed to appear for TR&T and RR, Sri. Joseph Kodianthara reiterates the contention that the petitioners were not heard on the jurisdictional facts. As to TR&T it is submitted that the Ambanad Estate, in their possession was conveyed to them by Ext. P4 dated 22.02.1985. The sale was set aside in in C.P. 11 & 20 of 1984 by a learned Single Judge but in appeal the Division Bench by Exhibit P22 set aside the judgment; the challenge from which was rejected by the Supreme Court. The State had attempted to cancel the mutation effected, which proceeding is stayed by this Court in W.P. (C) No. 25768/2009, which stay is still in force. The proceedings, permitted under the KLC Act by this Court was not on affirmation of such power but only if the jurisdictional fact is existing and that too with notice. The reservation was just a liberty left to proceed in accordance with law and it was mandatory that the assignees too are heard before finding on the jurisdictional issue. The finding that the assignee could not have stated anything in addition to that of the assignor, reveals a premeditated approach. The hearing then given to the assignee is futile and of no import; since the SO, in the first order itself found all lands of HML to be Government land. The decision reported in Bishan Das Vs. State of Punjab [AIR 1961 SC 1570], is relied on to contend that the state or its officers cannot interfere with the rights of others unless it is based on rule of law.

40. Sri.C.P.Mohammed Nias arguing for another assignee, BRE [petitioner in W.P.(C) No.11598 of 2015], refers to the exhibits produced to establish the title of the petitioner therein. Exhibit P1 is the sale deed of 2004 and Exhibit P2, the land tax receipts which specifically indicates the survey numbers and extent. Exhibity P3 is the plantation tax receipt and Exhibit P4, the encumbrance certificate issued by the State. The State has also issued Exhibit P5 licence under the Factories Act and Exhibits P6 and P7 are consents issued by the Pollution Control Board. Exhibit P8 is the permission of the Rubber Board and Exhibit P9 the mining lease. It is argued that when two Companies are amalgamated, there is no requirement for a registration and by operation of law the property vests in the transferee, as is evident from Section 394(2) of the Companies Act. It is also pointed out that the Stamp Act did not require stamping of such orders on amalgamation and the same was introduced only in the year 2015-16, as is seen from the amendments in the Finance Act, 2016. It is argued that though tax payment does not establish title, the acceptance of the tax for long indicates that it is not Government land and that the right of the Government with respect to the land was only to the extent of collecting tax. The Government is estopped from taking a contrary stand after long years.

41. N.Padmamma & Ors. v. S.Ramakrishna Reddy & Ors. [(2008) 15 SCC 517] is relied on to contend that Article 300A though not a fundamental right, has been held to be a Constitutional right and a human right. None can deprive such valuable rights without the authority of law. Again without admitting, Section 51 of the TP Act was read over to submit that there cannot be any summary eviction especially of the assignee of such land even if it is found that there has been a trespass. The only option available to the Government is to file a suit under Section 6 of the Specific Relief Act. Lallu Yeshwant Singh (dead) by his legal representative v. Rao Jagdish Singh & Ors. [AIR 1968 SC 620], State of Kerala v. M.K.Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) & Ors. [(1996) 1 SCC 435], State of U.P. & Anr. v. Zia Khan (1998) 8 SCC 483], Vidarbha Sikshan Vyawasthapak Mahasangh v. State of Maharashtra & Ors. [AIR 1987 SC 135] and Youth Bar Association of India v. Union of India & Ors. [AIR 2016 SC 4136] are relied on. It is argued that the proceedings initiated under the KLC Act is a clear abuse.

42. Learned Senior Counsel Sri.Jaideep Gupta appearing for the State, at the outset, submits that if the arguments of the petitioners are accepted, then that would lead to the scope and effect of KLC Act being curtailed. It was also submitted at the commencement itself, that the Senior Counsel would not address any arguments on the merits of the matter, since the authorities of the State have the appellate and revisional jurisdiction in accordance with the KLC Act. There is also a vigilance enquiry pending. The challenge against the FIR having been declined, it would not be proper for the State to address arguments on the issue of fraud, forgery and collusion alleged, which are also the essential ingredients leading to the present proceedings under the KLC Act and the vigilance case. It is pointed out that MRPL, in and around 1916 acquired a lot of properties in 8 districts and the total extent, together with what was acquired by the assignee Companies HML (UK) Ltd. and HML, comes to around 76000 and odd square acres. In the present cases, the subject matter is roughly 38000 square acres. There always existed a lingering doubt about the veracity of the holdings and the Government got down to examining the same only through a High Power Committee, which, it is accepted, cannot have evidentiary value and is not determinative of title. Subsequent to the decision of this Court in Harikumar-2013 (4) KLT 44, before taking proceedings under the KLC Act the Government had first to take an executive decision to proceed and it was to facilitate the same that a High Power Committee was appointed, which cannot by itself be found as a flaw to vitiate the further proceedings under the KLC Act.

43. With respect to the proceedings under the KLC Act, it is asserted that the same is not purely an administrative action and is a quasi-judicial function exercised by the Authorised Officer. The decision in HML-2014 (4) KLT 371 specifically directed the Special Officer to decide on the jurisdiction. The scheme of KLC Act reveals that it is a complete Code insofar as dealing with Government lands and any encroachment on it. In attempting to proceed for eviction of encroachers from such Government lands, a quasi-judicial body, under the Act definitely has jurisditional limits which has to be decided on the jurisdictional facts. The learned Senior Counsel submits that though he agrees on the first of the directions in HML-2014 (4) KLT 371, as to the decision on jurisdiction, he respectfully disagrees on the question of decision on a valid possession of the person in occupation. The SO under the KLC Act, according to the learned Senior Counsel, would definitely have the competence to decide whether the encroachment found is on Government land or otherwise. Merely because a dispute is raised, and it is a bona fide one the authority under the KLC Act, does not loose jurisdiction. If that be the case, the minute any encroacher raises a dispute then the SO should relieve himself from any further proceedings. That is not the intention of the enactment and it is the contention of the learned Senior Counsel that the SO is quite competent to declare that the lands which are the subject matter of encroachment, are Government lands.

44. The KLC Act is read to bring home the fact that it is a complete Code by itself. The preamble itself indicates that it is a special enactment for checking the unauthorised occupation of Government lands. Section 3 takes in not only public roads, streets, lanes, paths and the like, but also all lands wheresoever situated. The exemptions in clauses (a) to (e) provided in sub-section (1) of Section 3 can only be of a valid registration, possession or ownership. Under Section 5, the authorised officer is competent to decide on the title and this cannot be taken away by a mere dispute raised. On the question of a complete Code in itself, the learned Senior Counsel would place reliance on Girnar Traders v. State of Maharashtra [(2011) 3 SCC 1]. It is pointed out that the KLC Act provides for an appeal and revision as also a remedy before a Civil Court under Section 20. The petitioner could avail of either of these remedies and it would not be proper for this Court to exercise its extraordinary jurisdiction to interfere with the order passed by the SO. A dispute merely on it being raised cannot be treated as a bona fide dispute. A comparison is sought to be urged on the basis of the principles of winding up as per the provisions of the Companies Act. It is trite that the consequence of winding up arise only if there is an admission of a debt and if a bona fide dispute on the debt claimed is raised, the Company Court loses its jurisdiction. It is for the Company Court to decide whether there is a bona fide dispute or not and likewise an authorised officer under the KLC Act has to decide on the title before proceeding with the eviction. It is further argued that the KLC Act confers such competence to make a declaration and the necessary consequence of such declaration leads to an eviction.

45. Further urging the principle of the KLC Act being a complete code in itself, it is pointed out that there is an efficacious remedy of appeal and revision provided under Section 16 of the Act. The contention raised by HML that there is no appeal from the orders of the SO is only to be rejected. It is pointed out that the legislative intent is very clear insofar as providing an appeal and a revision. When any officer other than an RDO is appointed, then as in the case of an order by the Collector, the order of the SO can be challenged before the Land Revenue Commissioner, in appeal. The administrative hierarchy is of no consequence and in any event there is a further revision provided to the Government. Over all, if the occupant has a claim of title, then it is for such occupant to establish his title by way of a suit filed under Section 20 of the KLC Act. When such alternative remedies are available, this Court would not invoke the extraordinary remedy.

46. Banerjee Memorial Club-2016 (1) KLT 241 and Shahul Hassan Musaliyar-2015(4) KHC 615 (DB) are distinguished from the facts of the instant case. It is submitted that Banerjee Memorial Club-2016 (1) KLT 241 never considered the impact of Section 20 and though Thummala Krishna Rao-(1982) 2 SCC 134 was referred to, the conclusion was not based on the principle as laid down by the Hon'ble Supreme Court. Therein admittedly the land was Government land and the finding was on the ground that there was valid permission to occupy the land. Shahul Hassan Musaliyar-2015 (4) KHC 415 again was when the occupant claimed as the legal heir of the original Kuthakapattom lessee. There could be no parallel drawn in the instant case and whatever has been said by the Division Bench as to the scope and ambit of the KLC Act, cannot be imported herein.

47. The authority conferred on the Collector or RDO or one authorised, under the statute, is to decide on the nature of the holding and to proceed for recovery of such land when the holder is found to be in unauthorised occupation of such holding. There cannot be a mere dispute raised to divest the authority of the power to so proceed under the KLC Act. A title deed executed and registered could not by itself divest such authority since the registration would have to be a valid registration. The measure of “ellipses” has been usefully employed in law and here the exception granted insofar as Section 3 for persons registered in the revenue records as holders and registered holders having proprietary rights have to be read as “validly registered” holdings. The indenture 1600 of 1923 has been found to be an illegal and fraudulent document by the SO. A mere reading of the deed would also indicate that no prior deed of title is mentioned and this coupled with the entries in the “settlement register” shows that the land is Government land. Thummala Krishna Rao-(1982) 2 SCC 134, Padmavati-JT 1995 (5) SC 481 and Sankaranarayanan- (2017) 13 SCC 661 are distinguished especially in the teeth of the argument that KLC Act is a complete code by itself and the assertion that the officer authorised under the Act could decide and declare title. Reliance is placed on Custodian, Evacuee Property v. Jafran Beegum [AIR 1968 SC 169], Kamla Prasad v. Kishna Kant Pathak [(2007) 4 SCC 213], Lakshmi Narasamma v. A.Yadayya [(2009) 5 SCC 478] and Mandal Revenue Officer v. Goundla Venkaiah [(2010) 2 SCC 461] to draw parallels to the facts in the instant case. It is submitted that similar to the fore cited decisions, the KLC Act also confers the constituted authority with power to decide on title and then proceed for recovery.

48. Padmanabharu Govindaru Namboodiripad & Ors. v. State of Kerala & Ors. [AIR 1963 Kerala 86 (FB)] dealt with various tenures under which the lands were held in the State of Travancore. The distinction decided upon was whether the holder had absolute proprietary rights in the soil; which decision would shed light to decide upon the facts of the present case. {We have to immediately notice that the said decision was overruled by a Larger Bench in Rev. Fr. Victor Fernandez Vs. Albert Fernandez-1971 KLT 1 [Larger Bench]}. It is urged that the Puduval Rules only confer authority to lease or assign small extents not exceeding 3 acres. HML claims larger extents, which under the Rules could not have been put in their possession. Edavagai Rights Acquisition Act specifically vests the lands held by HML in the Government. The purchase certificate issued under the KLR Act, in the case of HML, are found to be exceeding the ceiling limit and this would enable any authority under the KLC Act to treat such a certificate as a nullity. Reliance for the above proposition is garnered from an unreported decision of a Division Bench of this Court in Prasannakumar v. State of Kerala, decided on 16.10.2014 in W.P.(C) No.16689 of 2013. It is also contended that a foreign Company will not be a “person” as defined under the KLR Act pointing to Section 3(1)(a) and Section 53 and 72 of the said statute. HML cannot come under the definition of “cultivating tenant” as available under the KLR Act.

49. In sanctioning a scheme of amalgamation there is no adjudication and an order of amalgamation is merely an affirmation of a compromise or arrangement as has been held in Hindustan Lever v. State of Maharashtra [(2004) 9 SCC 438]. The transfer of immovable property by a scheme of amalgamation has also to be registered, with proper affixture of stamp duty, in the deed of conveyance. The reliance placed on RFA 336 of 2011 is refuted on the contention that the State was not a party there. As to O.S.4 of 1968 and O.S.19 of 1972, it is argued that the invalidity of the document was subsequently found by the SO under the KLC Act. Admission in pleadings can be resiled from subsequently, if there is a sufficient explanation offered as found in Dr.Gautam Sarup v. Leela Jetly & Ors. [(2008) 7 SCC 85]. The learned Senior Counsel would urge that this Court decline jurisdiction and relegate the petitioners to the appellate remedy as available under the KLC Act or establish their title in a properly instituted suit under Section 20 of the KLC Act. The learned Senior Counsel, as already noticed, submitted at the outset, that he confines his arguments on the jurisdictional aspect and the scheme of the KLC Act, harbouring an apprehension that otherwise the statutory authorities of the State would be found to have been governed by such opinions, raising an allegation of bias. But we insisted that he assist us and we make it clear that the arguments addressed on merits, regarding the other aspects are at our insistence.

50. Sri.R.Krishna Raj would take us through Exhibits P2 and P3 in W.P.(C) No.10640 of 2015 to argue that a reading of the said documents would indicate the fraud perpetrated by HML. Exhibit P22 opens with reference to the parties and the foreign Company is said to be represented by its Liquidator; but, however, the Power of Attorney executes the document on behalf of the foreign Company. Exhibit P3 is the document by which the original owner of Cheruvally Estate is said to have conveyed his jenmom right to HML in the year 1947. Again, the Company is represented by a Power of Attorney; but the same is not seen produced. It is also contended that a single individual executes Exhibit P3 and the recitals indicate other persons also being entitled to ownership. The learned Counsel invited us to read the report of the Special Investigation Team [for brevity “SIT] and the report of the Vigilance and Anti-Corruption Bureau [for brevity “V&ACB”]. We declined so to do, and we immediately record herein our reasons: (a) The proceedings under challenge before us are under the KLC Act, wherein there is an authority conferred to evict unauthorised occupants inter alia from government or puramboke lands. The SIT or V&ACB are not authorities under the said statute. SIT is not one constituted under any statute and, even according to the State, it only enquires into the facts and law, the report on which would guide the executive Government to decide on the appropriate action to be taken. The SIT was appointed to look into the complaints received from various quarters and the media reports; as to the land holding by HML, as was the High Level Committee. The findings of the SIT cannot have any effect on the conclusions arrived at by the statutory authority, which has to be independently arrived at. The report of the SIT would only enable the Government, which constituted it to decide on the proceedings to be initiated. Obviously the Government, on looking into the report of the SIT, has authorised the SO under the KLC Act and such appointee has to independently decide on the jurisdictional aspects in the further proceeding taken. The report of V&ACB is also not final and it is a pre-cursor to the vigilance case registered by the V&ACB. Any observation made by us looking at the report of V&ACB would pre-empt the Vigilance Court and we would not do so. This is why we decline to look into either of the said reports.

51. The learned Counsel then would invite us to look into the counter affidavit filed in W.P.(C) No.30850 of 2007, which culminated in Exhibit P22 judgment, which, according to the learned Counsel, would belie the argument that the Government, at that stage only had a contention with respect to the proceedings under the KLR Act pending before the TLB, Vythiri. As to the SO's powers, it is argued that the decisions of the Hon'ble Supreme Court in Thummala Krishna Rao-(1982) 2 SCC 134 and Padmavati Devi-JT 1995 (5) SC 481 only speaks of a bona fide dispute and in the present case one can see that fradulent transaction has been entered into by HML in collusion with the Revenue officials. The Independence Act is relied on and it is asserted that the conveyance as per Deed No.1600/1923 cannot be continued to be held by the foreign Company after independence. Sri. Krishna Raj would vehemently contend that but for Exhibits P2 and P3, produced in W.P.(C) No.10640 of 2015, there is no other deed produced herein and it would be improper for this Court to refer to the various documents produced by way of compilations, not supported by affidavits to find title of HML or its assignees.

52. Sri.Kaleeswaram Raj, on the other hand, confines his argument to the fraud perpetrated; alleged to be evident from the transactions between the foreign Company and the Indian Company. MP(UK) Ltd. was incorporated in 1921 and in 1977 MP (Holdings) Ltd. was formed with the intent of acquiring the whole assets of MP (UK) Ltd. When such acquisition was made, there was no reason for MP (UK) Ltd. to be amalgamated with MP (India) Ltd. As of now, both MP (UK) Ltd. and MP (India) Ltd., a foreign Company and an Indian Company incorporated respectively in 1977 and 1978, claim ownership of the very same properties simultaneously. MP(Holdings) Ltd. cannot hold properties without permissions under the FERA and MP (India) Ltd. cannot hold properties which are said to be held by MP (Holdings) Ltd. It is argued that MP (India) Ltd. again was amalgamated with Harrisons & Crossfield (India) Ltd; which amalgamation order is not seen produced. It is the contention of the learned Counsel that on lifiting the corporate veil of MP (India) Ltd., it is evident that there is a large shareholding by MP (Holdings) Ltd., which is contrary to FERA. The learned Counsel argues that the fraud perpetrated by the English Company would have to be addressed keeping in mind the public trust doctrine.

VI. The impugned order of the SO appointed under the KLC Act.

53. The order commences with the statement that the SO has been entrusted with powers under Section 15 of the KLC Act by a Division Bench of this Court in Harikumar-2013(2) KLT 44 with extracts of paragraphs 8, 9 and11 of the said judgment. The SO assumes it as a sanction to proceed under the KLC Act and first notices the actions initiated by the SO. They are:- inspection of the lands occupied by HML in the Districts of Kollam, Kottayam, Pathanamthitta and Idukki and prohibitory proceedings issued against HML as also the notices under the KLC Act. Referring to HML-2014 (4) KLT 371, the SO speaks of the need to consider the jurisdictional issues and lists out the arguments of HML. HML, as has been argued before this Court, contended that the lands were owned by their predecessors and themselves for over a century and they have been remitting all statutory dues which have been accepted by the Government throughout, without demur. Document No.1600/1923 and the prior deeds were produced along with the objections, which are marked as Exhibits P-7, P8 & P9 in W.P.(C) No. 33122 of 2014. Suits and proceedings before the Tribunals were pointed out to contend that the Government had always accepted the valid ownership and possession of HML, which coupled with the Revenue records affirm the title to the properties being on HML.

54. The SO is said to have examined the records containing the High Level Committee's report, the legal opinion of a retired Judge of this Court, the various decisions inter-parties and the various enactments; the violations of which are alleged against HML and the deeds and decisions produced in defence. The SO then referred to the KLC Act and specifically extracted Explanations I and IA of Section 3 of the KLR Act and the intention behind the same was dilated upon. It was found that the welfare- State intervened in time, to check inequitable holding of lands, with a view to ensure egalitarian equitable distribution to the landless, thus liberating the downtrodden from the clutches of the zamindari system. The KLC Act was found to be an enactment to protect, preserve and conserve Government lands. The objections raised by HML were referred to; but, however, the documents produced were held to be photo copies and no reliance was placed on them nor where they dealt with. Again, referring to Harikumar-2013(2) KLT 44 as also J.Nair-2013 (4) KLT 584 it was found that the orders of the TLB would not determine title. A broad statement was made that “the land granted by Government or the Government land encroached by the foreign companies before independence shall come to the custody of the State concerned after the coming into force of the Constitution of India” (sic-page 16). The SO also finds that there is no survey required “since all land held by the objector company are the Government land, there is no need to survey and isolate Government land” (sic-page16).

55. The challenge in the writ petitions are on ground of lack of jurisdiction under the KLC Act since HML is in possession on the strength of valid title or on grants of license or lease and based on fixity of tenure acquired under the KLR Act. Summary eviction from lands on mere allegation of un-authorised possession is not enabled by the statute under reference. HML-2014 (4) KLT 371 had also directed the SO to first consider the aspect of jurisdiction and only then proceed under the KLC Act. The SO has found on jurisdiction and has directed vacation of lands by the occupants by separate orders. In the present batch of writ petitions we are concerned only with the jurisdictional aspect. If the SO authorised under the KLC Act has jurisdiction to proceed against the subject lands, necessarily the challenge against the further orders passed, has to be left to the appellate remedy available under the statute. The aspect of jurisdiction has been considered by the SO in Exhibit P19 produced in W.P.(C) 33122 of 2014, which is considered as the impugned order. We cannot but notice that the SO is in clear contempt of the directions in HML-2014 (4) KLT 371 for having decided the jurisdictional issue on 28.11.2014 and passed the final order on 01.12.2014, marked as Exhibits P19 and P20 in W.P.(C) No.33122 of 2014. The direction as seen from HML-2014 (4) KLT 371 was to decide on the preliminary objections raised on jurisdiction within two months after affording an opportunity of hearing. It was further directed that if the jurisdictional issue is in favour of the State then the final decision shall be taken within a further period of two months. Again it was directed that if the final decision is to evict the occupants then it had to be kept in abeyance for a period of one month to enable a challenge against the same. We would venture on a further proceeding, in that direction, only after first deciding on the jurisdictional aspect.

56. The essential grounds on which the SO has found that the lands belong to the Government, to assert and affirm jurisdiction, have been succinctly stated by the learned Single Judge; which we more or less adopt with slight modification in the following manner: 

(a) The SO has been entrusted with powers under Section 15 of the KLC Act as per the judgment in Harikumar-2013 (2) KLT 44. The SO also relies on the observation of the Supreme Court of India in S.L.P. (CC) Nos.16748-16749/2014 dated 27.10.2014 to assert that the jurisdiction under the KLC Act has been so affirmed. J. Nair-2013 (4) KLT 584 as also the judgment of a learned Single in WP (C) No. 30955 of 2013 and the observations therein are also relied on.

(b) The predecessor-in-interest of HML was a foreign company registered under the English Consolidation of Companies Act, 1909 and not a Company defined under the Indian Companies Act, hence not capable of holding lands; more significantly after the independence of India as provided under the Indian Independence Act, which resulted in such properties held by foreign Companies being vested in the Government; here the State Government under Article 296 of the Constitution of India.

(c) The foreign Company had been holding lands without permission from the Reserve Bank of India in violation of the specific provisions under FERA 1947 and 1973.

(d) A foreign company does not get any benefit under the KLR Act and cannot come under the definition of 'tenant' or 'cultivating tenant'; thus dis-entitled to fixity of tenure. The KLR Act intended agrarian reforms, for the benefit of landless poor, which cannot enable fixity of tenure on a foreign company.

(e) The lease hold and free hold lands held by the predecessor-in-interest of HML gets vested in the Government under the Indian Independence Act and if not, under Sections 51A, 51B, 72 and 86(4) of the KLR Act.

(f) The properties being so vested in the Government, come under the purview of Explanation I and IA of Section 3 of the KLC Act.

(g) The judgments and orders, relied on by HML; having not considered the above aspects are not relevant or binding in deciding title and the TLB in considering the extent of lands held by HML, for the purpose of determining the ceiling, has not adjudicated the title over the land. The Land Tribunals too, under the KLR Act, issued fraudulent purchase certificates in the name of the English Company.

(h) Indenture No.1600 of 1923 has been held to be forged and fraudulent on the following grounds: (i) the diamond shaped seal embossed on the document is not seen on any other similar documents.

(ii) Indenture is only an agreement as distinguished from a proper conveyance deed.

(iii) Report submitted by the Sub Registrar, SRO, Kollam to the Special Government Pleader (Revenue) notices serious discrepancies.

(iv) The survey number of Boyce and Perunvanthanam estates not shown.

(v) The prior deeds or agreements not mentioned and the lands are described as freehold and leasehold without any assertion of title.

(vi) The report of the Special Investigation Unit Il, VACB raises a suspicion of forgery.

(vii) In Crl.M.C.6447 of 2014 this Court had directed continuance of the enquiry and other procedures.

(viii) John Mackie acting as power of attorney for both the transferor and the transferee, clearly forged the instrument.

(ix) The registration is carried on in violation of Registration Regulation II of 1087 (ME).

(i) The State was not a party before the Company Court which considered the scheme of amalgamation and in any event, there is no determination of title by the Company Court. The landholding by the foreign Company being in violation of Indian Independence Act and FERA, there could be no transfer of lands on amalgamation.

(j) The Government is the absolute or the largest jenmi and private parties have to prove their jenmom right by registered document.

(k) The jenmom right of Vanchipuzha Madom shown transferred by Puduval Pattayams are contrary to the Puduval Rules, which permit assignment of only smaller extents of lands.

(l) By virtue of the Edavagai Rights Acquisition Act, the lands held on lease got vested in Government and the further occupation of the land is unauthorised.

(m) There is no valid title derived by HML and the various judgments and orders in favour of HML were rendered on account of the fraud played by HML and their predecessors-in-interest.

Essentially the grounds in the impugned order to find jurisdiction to proceed under the KLC Act boils down to allegation of violation of FERA Act, operation of Independence Act, interpretation of the KLR Act, the Edavagai Rights Acquisition Act, the manipulations under the Puduval Rules and broad accusations of fraud, forgery and collusion.

VII. Alternate remedy whether a bar to the present writ petitions: 

57. It has been argued by the State that there are alternate remedies available to the petitioner under the KLC Act and the writ petition is not maintainable. It is also contended that if at all the petitioner asserts, title on the lands now proceeded against by the Government; then the petitioners' remedy is to approach the Civil Court and it cannot dictate terms insofar as asking the Government to so approach the Civil Court. We notice from the history of litigation as hereinabove extracted, that, complaints arose with respect to the landholdings of HML only when they started selling their lands that too in the year 2006. On the basis of the complaints, the Government had constituted committees to look into the holdings of HML and had initially taken a contention of escheat, lapse and bona vacantia. Nothing has materialised on that count and as has been found in J.Nair-2013 (4) KLT 584, an escheat, lapse and bona vacantia can materialise only by valid proceedings initiated for the same. The definition of the terms as available in the Blacks Law Dictionary are extracted herein below: “escheat (es-cheet), n. 1. Hist. The reversion of land ownership back to the lord when the immediate tenant dies without heirs. See writ of escheat. 2. Reversion of property (esp. real property) to the state upon the death of an owner who has neither a will nor any legal heirs. [Cases: Escheat 1-8 C.J.S. Escheat $$ 2-23]. 3.

Property that has so reverted. See heirless estate under Estate (3). - escheat, vb “All escheats, under the English law, are declared to be strictly feudal, and to import the extinction of tenure ... The rule (was) that if lands were held in trust and the cestul que trust without heirs, the lands did not escheat to the crown, but the trustee, being in esse and in legal seisin of the land, took the land discharged of the trust, and bound as owner for the feudal services. But as the feudal tenures do not exist in this country, there are no private persons who succeed to the inheritance by escheat; and the state steps in the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction”. 4 James Kent, Commentaries on American Law 423-24 (George Comstock ed., 11th ed. 1866)”.

“lapse, n. 1. The termination of a right or privilege because of a failure to exercise it within some time limit or because a contingency has occurred or not occurred. 2. Will & Estates. The failure of a testamentary gift, esp. when the beneficiary dies before the testator dies. See ANTILAPSE STATUTE. Cf.

Ademption. (Cases: Wills 774-777. C.J.S. Wills $$ 1791-1808.

lapse, vb. 1. (Of an estate or right) to pass away or revert to someone else because conditions have not been fulfilled or because a person entitled to possession has failed in some duty. See lapsed policy under INSURANCE POLICY. 2. (Of a devise, grant, etc.) to become void”.

“bona vacantia (boh-ne ve-kan-shee-a). [Latin :vacant goods”] 1. Property not disposed of by a decedent's will and to which no relative is entitled under intestacy law.

See ESCHEAT, 2. Ownerless property; goods without an owner. Bona Vacantia often resulted when a deceased person died without an heir willing and able to make a claim. The property either belonged to the finder or escheated to the Crown - Sometimes shortened to vacantia. Also termed vacantia bona”.

58. An escheat, lapse or bona vacantia presupposes a title holder; who left none to succeed him or abandoned the property, as a consequence of which the right and title on the property accrues to the State. None of this has occured and as held in J.Nair-2013 (4) KLT 584 the right cannot operate “independent of the scheme of the Escheat Act and other provisions which provide due process as established by law for taking possession even such lands...” (sic-para12). Obviously there are no such proceedings taken and the writ petition filed under Articles 227 & 228 stood rejected. The Government then took a contrary stand as to the land being owned by the Government and attempted proceedings under the KLC Act.

59. We have to first deal with the argument raised by HML that the alternate remedy available under the statute is only against the order of the RDO or the Collector and not from an order of a SO appointed under Section 15. We cannot ignore the provisions of the Act, which makes it a complete code in itself, as regards eviction of unauthorised occupants from government and puramboke lands. In saying so we may not be understood as having accepted the contention of the State as to the jurisdiction under the KLC Act to decide title; which we propose to deal with a little later. However on the aspect of eviction, when the jurisdictional fact of title of the government is undisputed and there is discernible no valid authorisation for occuppation; it is a complete code. There is an original authority competant to take proceedings with due notice and after affording a reasonable opportunity of hearing. There are also appellate and revisional remedies provided which reveal the legislative intention to provide sufficient safeguards against any arbitrary action by the mighty State. Administrative hierarchy is not of any consequence insofaras the scheme of the Act having clearly contemplated appellate and revisional remedies; the authorities empowered so, also being specified.

60. Section 16 is to be read as permitting an appeal to the Collector in case of the officer authorised under Section 15, being an RDO and when the officer so authorised is lower in rank to the RDO; the appeal lies to the RDO. In the case of an original order of the Collector, the appeal lies to the Land Revenue Commissioner. Here, the SO has been appointed to discharge the functions of the Collector with respect to the lands of HML, lying in over eight districts. An appeal hence lies to the Land Revenue Commissioner and the hierarchial parity of the administrative posts regularly held by the appellate authority and the SO would be of no import; especially when the statute delineates the powers of each of such authority. The argument that there is no alternate remedy in the case of an SO appointed, as in this case, hence has to be rejected. We cannot find that there is no appellate remedy avvailable. Girnar Traders-(2011) 3 SCC 1 found that “Recourse to legal remedies and providing a complete machinery to remedy the grievances of claimants is a significant feature in considering the legislative scheme of a statute” (sic- para52). It was also held that “For an Act to be a “self-contained code”, it is required to be shown that it is a complete legislation for the purpose for which it is enacted” (sic-para 69). As a corollary it was also held: “ ... if complete machinery or mechanism is not provided under an Act to ensure effective execution of the functions assigned with due protection of the rights of the interested persons within the framework of law, it may not be possible for the court to hold that such a statute is a self-contained code” (sic-para 77). The legislative intent being clear from the KLC Act, we are of the opinion that it provides a complete machinery for eviction, from government lands, of an unauthorised occupant; provides a hearing before such eviction is effected and also an appellate and revisional remedy. We cannot agree with the submission of HML that there is no appellate remedy provided from the orders of the SO. At the risk of repetition; that does not necessarily mean that the KLC Act provides for determination of title, as has been contented by the State.

61. The learned Single Judge who referred the matter, noticed that the proceedings were initiated by the Government on the assumed sanction to so proceed by a Division Bench decision of this Court in Harikumar-2013 (2) KLT 44. The proceedings commenced with the meeting held in the Chambers of Minister for Revenue on 06.03.2013. The participants included the Law Secretary, Principal Chief Conservator of Forests (Widelife), Secretary of Revenue Department, Land Revenue Commissioner, Special Government Pleader (Revenue), Secretary of State Land Board, Joint Secretary of Revenue Department, Deputy Conservator of Forests, Joint Secretary of Law Department and Under Secretary of Forests. The meeting seems to have considered the observations made in the judgment dated 28.03.2013 [Harikumar-2013 (2) KLT 44] to be “a glorious momentum for Revenue department” and the directions were to the effect that “all possible steps should be adopted in a time bound manner for initiating action in accordance with the law as directed by the High Court in the verdict”. The Special Government Pleader is also said to have presented a note containing the action plan for implementing the aforecited judgment. We do not discern any such directions in the judgment; which warrants implementation. According to us there was merely a reservation made as to the States right to proceed under the KLC Act, if the same was legally permissible. Such a reservation made, is a statement of the obvious, but made in judicial orders, lest the rejection of a particular plea; foreclose yet another independent right or remedy. The direction if at all was to initiate such proceedings, if permissible, within two months; this, to ensure that the land holders are not kept in suspense as to their holdings, especially in the context of the contrary stances taken by the State.

62. The decisions taken at the meeting, include a short term measure to invoke the provisions of the KLC Act and appoint an officer to take appropriate proceedings, the proposal regarding which is to be submitted by the Commissioner, Land Revenue, who is the appellate authority under the KLC Act. The Revenue Department was also directed to promulgate an Ordinance to resume Government lands under the unauthorised possession of HML. When KLC Act conferred sufficient authority to take over Government lands, and if the State was of the view that these were Government lands; then it does not stand to reason, why such an ordinance was required. The other decisions taken, at the meeting, are not very relevant to decide the question of alternate remedy. It is pursuant to the said meeting, presumably on the proposal submitted by the Land Revenue Commissioner, the SO was appointed, which appointment, it has to be immediately noticed, is for not taking appropriate proceedings under law, but to resume the lands held by HML, which pre-judges the issue and ties the hands of the authority so appointed from making an independent consideration.

63. It has to be reiterated; contrary to the understanding of the SO, as reflected in the impugned order, there were no directions in Harikumar-2013 (2) KLT 44 and only reservation of the rights of the Government to proceed, in accordance with law; if such power under the KLC Act was available. There was no affirmation of any such power and the Division Bench carefully and surely refused to grant “any anticipatory clearence for any proposed statutory or administrative action” (sic). The Honble Supreme Court by order dated 27.10.2014 dismissed S.L.P. (CC) Nos.16748-16749/2014, with respect to another estate of HML, not a subject matter of the above case, making a similar reservation as referred above. There can be no affirmation of the authority of the SO under the KLC Act, ferreted out from the observations so made to proceed in accordance with law. J.Nair-2013 (4) KLT 584 also held: “if questions of public policy and public interest are involved, the bare minimum is that appropriate action in accordance with the Rule of law has to follow” (sic-para14). There cannot hence be garnered any support from the aforesaid decisions; for authoritative affirmation of the right to proceed for eviction, of the subject properties, under the KLC Act. The judgment in WP (C) No. 30955 of 2013 was reversed along with the observations about the effect of the decision in Harikumar-2013 (2) KLT 44, in the appeal filed by HML numbered as W.A.No:586/2015 by judgment dated 03.12.2014 [HML Vs State of Kerala].

64. We agree with the learned Single Judge that relegating the petitioners to avail the statutory remedies available under the KLC Act would be a futile exercise. It is the Land Revenue Commissioner, the appellate authority, who made the proposal, as to the proceedings to be initiated under the KLC Act and the officer to be appointed. It is also crystal clear that the intention of the Government, the revisional authority, in appiointing the SO to be the Collector, the authority under the KLC Act, as revealed from the order under Section 15, is to specifically recover the lands of HML. We cannot hence relegate the petitioners to the alternate remedy; especially noticing the consistent and concerted attempts of the Government to take over the lands which are in possession of HML for long and on which the HML and their assignees, raise a valid claim of title.

65. The next remedy pleaded is under Section 20; by which the petitioners have to establish their title in a Civil Suit. It is argued that the Government is disabled from filing a suit as has been held in Kurivilla Yohannan-1989(2) KLT 859. We cannot but immediately notice that the KLC Act itself, in case of a ground raised of the land in respect of which an order is passed under the Act being not a land which is the property of Government; whether puramboke or not, has permitted separate proceedings by a suit in a civil court. Section 20 bars any suit against the Government in a civil court, in respect of an order passed under the Act, except on grounds of the Government having no title over the property. The nominal heading also reads “Saving of suits by persons aggrieved by proceedings under this Act”, which indicates the legislation itself having recognised a separate remedy insofar as establishment of title. This takes the issue out of any pale of doubt as to whether the authority constituted under the KLC Act can venture into determination of title. With emphasis we say: It cannot. We shall deal with the issue more elaborately later.

66. In 1989 (2) KLT 859, Kurivilla Yohannan filed a suit against Kumaran, alleging that the latter, in his absence, took possession of a puramboke land which was in his possession. The defendant took various contentions, one of which was that the suit was barred under Section 20A of the KLC Act. Though the trial Court found the issue of possession in favour of the plaintiff, it dismissed the suit on the question of maintainability. On the question of the prohibition under Section 20A, as it then stood, it was held that the bar operated only against the Government. The Court also examined the reason for introduction of Section 20A, and traced it to Northern India Caterers Ltd. v. State of Punjab [AIR 1967 SC 1581]. There the Supreme Court found that an additional remedy by way of summary eviction over and above the remedy to file a suit and conferring such unguided discretion on the Collector to choose one or the other, would result in pick and choose; open for a challenge on discrimination, falling foul of Article 14. The introduction of Section 20A in 1971 by Act-11 of 1971 was found to be, to avoid invalidation of Sections 7 to 11 of the KLC Act. Maganlal Chhaganlal Vs. Municipal Corpn. of Greater Bombay 1975 (2) SCC 402; overruled Northern India Caterers Ltd.- AIR 1967 SC 1581 on the specific aspect that the two remedies provided, would fall foul of Article 14, even before Kurivilla Yohannan-1989(2)KLT 859. Whatever that be, to proceed under the KLC Act, the sine qua non is that the land should be Government land.

67. Even when Section 20A was available in the statute, the remedy of a suit for declaration of title, by the Government, was very much possible, as has been held in Shamsudhin-2001(1)KLT292. There, the dispute was between an individual and Travancore Devaswom Board; centered around certain properties in the possession of the former on which the latter claimed title. The plaintiff was the Board and the defendants contested the suit, inter alia on the ground of adverse possession. The suit was found to be not maintainable under Section 20A of the KLC Act despite the trial Court declaring the plaintiff's title over one of the scheduled items. The first appellate Court reversed the trial Court decision; found the title over both the Scheduled properties and the suit to be maintainable. Examining the Revenue records, this Court found that the property belongs to the Devaswom and such properties could be dealt with as Government lands for eviction of trespassers. On the ground raised under Section 20A of the KLC Act, it was found that no Civil Suit is maintainable for eviction of trespassers in occupation of the Government lands, whether puramboke or not. Though there is a bar for Civil Court to entertain a suit for eviction of trespassers/persons in unauthorised occupation of land, the suit filed for declaration of title and consequential injunction, was held to be maintainable.

68. Hence, even as per Section 20A prior to 2009, the Government cannot contend that they are barred from approaching the Civil Court to establish title. The bar was only from instituting a suit for eviction, but one for declaration of title is perfectly maintainable. As of now by Act 29 of 2009, Section 20A stands substituted and the bar against the Government filing a suit, even for eviction stands deleted. The present Section 20A is only a bar on the Civil Court from entertaining a challenge against an eviction proceeded with under the KLC Act. The KLC Act, as it now stands permits an occupant of land to file a suit for declaration of title but bars one against a proceeding for eviction under KLC Act. The State too, as of now is enabled to file a suit for establishing title or even for eviction as a separate or consequential relief. The consideration of whether the said course has to be adopted and who has to initiate the suit, will have to wait till we decide on the jurisdictional aspect under KLC, Act.

69. We further garner support from the decision of the Hon'ble Supreme Court in AIR 1961 SC 1506 A.V.Venkiteswaran v. Ram Chand Sobhraj Wadwani, Kuntesh Gupta-(1987) 4 SCC 525, Whirlpool Corporation-(1998) 8 SCC 1 and Gujurat Ambuja Cement Ltd.-(2005) 6 SCC 499 to find the instant proceedings maintainable. A.V.Venkiteswaran laid down two exceptions to the normal rule of bar of jurisdiction under Article 226; on existence of alternate remedy. The rule was held to be inapplicable only when (i) the action taken was completely without jurisdiction or (ii) the order passed was in violation of principles of natural justice. Whirlpool-(1998) 8 SCC 1 held alternate remedy being not a bar in three contingencies (i) enforcement of fundamental rights (ii) violation of principles of natural justice, or (iii) proceedings being without jurisdiction or the vires of the statute being challenged. Gujarat Ambuja Cement Ltd. extended the proposition. We would refer, in detail, to Gujurat Ambuja Cement Ltd. The rule is a self imposed limitation, essentially being a rule of policy, convenience and discretion and never a rule of law. It was categorically held that the High Court would not be divested of the jurisdiction under Article 226 merely because there is an alternate remedy. What has to be ensured is that “the writ petitioner has made out a strong case or there exists a good ground to invoke the extraordinary jurisdiction”. The Court held so in paragraphs 22 and 23: 

“22. If, as was noted in Ram and Shyam Co. v. State of Haryana the appeal is from “Caesar to Caesar’s wife” the existence of alternative remedy would be a mirage and an exercise in futility. In the instant case the writ petitioners had indicated the reasons as to why they thought that the alternative remedy would not be efficacious. Though the High Court did not go into that plea relating to bias in detail, yet it felt that alternative remedy would not be a bar to entertain the writ petition. Since the High Court has elaborately dealt with the question as to why the statutory remedy available was not efficacious, it would not be proper for this Court to consider the question again. When the High Court had entertained a writ petition notwithstanding existence of an alternative remedy this Court while dealing with the matter in an appeal should not permit the question to be raised unless the High Court’s reasoning for entertaining the writ petition is found to be palpably unsound and irrational. Similar view was expressed by this Court in First ITO v. Short Bros. (P) Ltd. and State of U.P. v. Indian Hume Pipe Co. Ltd. That being the position, we do not consider the High Court’s judgment to be vulnerable on the ground that alternative remedy was not availed. There are two well-recognised exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition.

23. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v. ITO that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition”.

70. In the instant case we have already found that the appeal would be from 'Ceasar to Ceasar's wife'; not to be taken as a literal reference to anybodies wife. We only affirm the popular perception from time immemorial, when empires existed, that an appeal from the emperor to his spouse would be futile. In a democracy this principle has application only by reason of the statutory authorities being subservient to the Government or rather to the political expediency of the ruling party. We cannot shut our eyes to the manner in which repeated proceedings were initiated to take over the lands and eventually the appointment of SO effected. The fundamental question urged is one of jurisdiction to proceed, on the basis of the claim to title raised by the occupants of land. The petitioners also allege the proceedings to be an abuse, especially pointing out the concerted effort of the State to take over the lands of a specified Company, on one pretext or another, all of which till date has turned futile for reason of the inherent fallacy of the State having claimed title; where there is none. We, on the above reasoning, reject the contention of an effective alternate remedy and find the writ petitions to be maintainable.

VIII. Reliance placed by the Special Officer on the decisions of this Court to assert jurisdiction.

71. The Special Officer in Exhibit P19, first relied on the judgment reported in Harikumar-2013 (2) KLT 44 to assert his jurisdiction and also the judgment of the learned Single Judge in HML-2014 (4) KLT 371. The notice issued was termed as “in compliance with the judgment of the Hon'ble High Court”. With respect to the decision reported in Harikumar-2013 (2) KLT 44, the Special Officer extracted paragraphs 8, 9 and 11. We extract hereunder paragraphs 8, 9, 10 and 11 as also the concluding paragraph: 

“8. Be that as it may, if the Government stand by the assertion that the properties in the possession of H.M.L. or its transferees are Government lands or are lands which are recoverable under the provisions of L.C. Act, the bare minimum for any action to start, is by issuance of due and appropriate notice. This is not something to be done on any prompting of any other authority, but has to be done on the satisfaction of the competent authority under the L.C. Act regarding the existence of grounds to proceed under that Act. We may pause here to recall that in so far as G.F.A. is concerned, there are certain observations in the judgments issued by the Division Bench of this Court in W.P. (C).No.6258 of 2010 and connected cases and in R.P.No.676 of 2011 in WP(C).No.32628 of 2007 and connected cases which tend to indicate that the proceedings for recovery, even through the L.C. Act, should stand deferred till identification of the lands, we record this going by the submissions of the learned senior counsel appearing on behalf of the GFA, without ourselves expressing anything on that. G.F.A.'s learned senior counsel also further submitted that there appears to be an indication in those judgments of the Division Bench that the State, if at all, has to take recourse to other proceedings, rather than those under the L.C. Act. We do not express anything on that now and we leave open that issue for the time being.

9. One thing is certain; even if lands are covered by orders issued by the Land Board in a ceiling case, if the Government were to contend specifically that the lands are Government lands or are lands which the Government are entitled to reach at, through the process of the L.C. Act, it would be within the jurisdiction of the competent statutory authority to initiate action. This is because, title to property is not what is decided in the Land Board proceedings in a ceiling case as between the declarant and the State, though such issues may be germane while exemptions or identification of excess, are to be decided by the Land Board, as between the declarant and other parties appearing before the Land Board. If the Government have the case that the paramount title to the land rests with them, they would be at liberty to initiate action in accordance with law.

10. We may also record the submission of the learned senior counsel for H.M.L. that in cases where L.C. Act proceedings are to fail on a jurisdictional issue, the Company or the person notified of such proceedings would have the authority to challenge such proceedings on a jurisdictional issue and that in given situations, it would be for the State to sue and seek for declaration and other reliefs through the civil court rather than initiate proceedings under the L.C. Act.

11. Whatever arguments may be addressed at this point of time, we would stand dissuaded from answering any jurisdictional issue or any other aspect that may arise, if and when the competent authority under the L.C. Act issues notice, we also would not now speak on the quality of the State Government's rights or any other issues since it will be premature for us to express on that. Judicial discipline advises us that we will not carry ourselves beyond issues in praesenti, to speak on matters which may or may not arise between the parties at a future point of time. Not only that, we would cautiously guard this Court's power and jurisdiction from being utilised to answer issues prejudging matters which statutory authorities or other executive authorities have to decide. No decision of this Court can be obtained to pre-empt; or to be treated as a caveat or an anticipatory clearance for any proposed statutory or other administrative action. For support, see the decision of the Hon'ble supreme Court of India in Priyadarshini Dental College & Hospital v. Union of India ((2011) 4 SCC 623) and that of the Division Bench of this Court in Member Secretary (HRACC v. M/s. Ernerald Regency (2013 (1) KLT 264 = 2013 (1) KHC 22). For the aforesaid reasons, without expressing anything on merits, these Writ Petitions are ordered directing that if the competent authority or authorities in the State administration as are authorized in terms of the provisions of the L.C. Act, decide to initiate action against any of the properties in the possession of HML or any of its transferees or persons in occupation, they may do so strictly in accordance with law. If such authority concludes that action has to be so taken, let steps be initiated in that regard within a period of two months from the date of receipt of a copy of this judgment. Let proceedings follow thereupon, after affording due opportunity of hearing to all parties entitled to be heard in that regard”.

72. Even going by the paragraphs extracted, we are unable to discern any finding on the jurisdiction under the KLC Act. The Division Bench noticed the order of the TLB, Vythiri, the writ petition filed by the State under Articles 227 and 228, the approval of amalgamation made by the Company Court, the decisions of the Division Bench in the writ petition and the review petitions relating to Cheruvally Estate, in the possession of GFA. The Court specifically observed that the proceedings under KLC Act can be only on the satisfaction of the competent authority regarding the existence of valid grounds to so proceed. While finding in paragraph 9 that the Government would be at liberty to initiate action under KLC Act, if it has a case that the paramount title vests with the Government; in paragraph 10 the submission on behalf of HML that if the Government is divested of such competence, then the remedy would be a Civil Suit to first get a declaration that the lands are of the Government was noticed.

73. Admittedly there was no statute vesting the land in the Government other than the KLR Act, that too only to the extent of lands in excess of the ceiling limits, wherever applicable. Paragraph 11 puts it beyond any pale of doubt that the Division Bench refused to answer whether the Government, on facts, has the competence to proceed under the KLC Act. The learned Judges; cautiously guarded this Court’s power and jurisdiction from being used for pre-empting a consideration, exercising statutory or administrative powers, so as to treat it as a caveat or an anticipatory clearance. They also made it abundantly clear that the jurisdictional aspect has to be looked into by the SO which could be challenged by the petitioners before this Court. Hence, the reliance placed on the said decision to find jurisdiction is misplaced. The directions were only to the effect that if the statutory authority decides to proceed, under the KLC Act, to so proceed (i) strictly in accordance with law (ii) within two months and (iii) after affording an opportunity for hearing.

74. We also notice that the position had been clarified by this Court in W.A.No.586 of 2015, decided on 01.06.2015 [HML Limited v. State of Kerala]. The Special Government Pleader alertly points out that the order of the SO was prior to the said clarification. However, we are of the opinion that the time when such clarification was issued is irrelevant insofar as there is no declaration that is discernible from the decision reported in Harikumar-2012 (2) KLT 44 as to the competence of the statutory authority under the KLC Act to proceed for recovery of lands. We hence hold that the observations made by the learned Single Judge in W.P. (C) No. 30955 of 2013 are of no avail, the same having been overturned in appeal. Yet another reliance, is on the observations made by the Hon’ble Supreme Court in S.L.P.(C) Nos.16748-16749 of 2014 vide order dated 27.10.2014, filed by the State of Kerala against HML regarding the land in Muply Valley Estate in Thrissur. The extract relied is as below: 

“The Special Leave Petitions are dismissed without prejudice to the proceedings pending before the Special Officer under the Kerala Land Conservancy Act, 1957 if he possesses the jurisdiction and without prejudice also to the rights of the parties”.

The said Special Leave Petition was filed from the order of a Division Bench in W.A.No.434 of 2013 directing the State of Kerala to restore 22.45 hectares to Muply Estate, which is not a subject matter of the present notices. Further, the observation of the Supreme Court is only to the effect of leaving liberty to proceed under the KLC Act if the State has competence and not otherwise. There cannot be any reliance placed on the observation of the Supreme Court to proceed under the KLC Act. The issue of jurisdiction has to be independently found on the facts of the instant case.

IX. Amalgamation and violation of Foreign Exchange Regulation Act, 1973: 

75. These issues can be dealt with together. On the issue of amalgamation, it was argued by a party respondent that there is no proper disclosure of facts leading to the formation of MP(India) Ltd and the amalgamation of MP (UK) Ltd. with the former. It is argued that the Scheme of Arrangement and Amalgamation also does not disclose the nature of the holdings of MP(Holdings) Ltd. Reference was made to Exhibit R7(a) in W.P.(C) No.33122 of 2014, which is the Memorandum of Association of MP (Holdings) Ltd. One of the objects for which the Company is established, was to acquire the whole or issue share capital of Malayalam Plantation or whole or any part of the undertaking or properties or assets of that Company. The object of the Company, being so, as revealed in the Memorandum; it is contended there can be no two companies holding the very same properties.

76. The mere fact that there was an object in the Memorandum would not necesssarily indicate that it was carried out. The object as extracted hereinabove was only to carry out either of the activities and there is nothing on record to show that MP (Holdings) Ltd. had acquired the assets of MP (UK) Ltd. After MP (India) Ltd. was incroporated, there was a proposal for amalgamation which had received the approval of the Company Judge of this Court in C.P.No.25 of 1978 connected with Company Application No.545 of 1978. The Order on Petition disclose the earlier proceedings: 

(i) separate meeting of the members of the transferee and transferor Companies for the purpose of considering and approving the Scheme of Arrangement and Amalgamation, 

(ii) the publication made in one English Daily and one Malayalam daily within India and also in an English daily in the U.K., 

(iii) the reports of the Chairman of the meeting of the members of the transferee and transferor Companies and 

(iv) the affidavit on behalf of the Central Government under section 394A of the Companies Act, 1956 sworn to by the Regional Director, Company Law Board, Southern Region Madras after reading communication No.EC:CO:FCS.2326/T-87 (Activity)/dated 20th February, 1979 of the RBI addressed to the transferor Company and the letter in acknowledgment dated 15.03.1979 addressed to RBI by the transferor Company. These were perused before sanctioning the Scheme of Arrangement and Amalgamation. It is also seen that the Court further ordered: 

“4. That the said transferee company do without further application allot to Malayalam Plantations (Holdings) Ltd., U.K. The shares in the transferee company to which they are entitled under the said scheme of arrangement and amalgamation as approved by the Reserve Bank of India”.

It cannot, hence be said that the existence of MP (Holdings) Ltd. and the acquisition of shares in the transferee Company which had amalgamated with the transferor Company was not disclosed to the Company Court. The allotment of shares was also with the permission of the RBI.

77. It has also to be emphasised that the publications made, were, in dailies having wide circulation inside the State of Kerala; “Malayala Manorama” and an English daily “Hindu”, having circulation inside and outside the State. The amalgamation was thus put to notice of all and sundry, including the State of Kerala, before the Scheme of Arrangement and Amalgamation was sanctioned by the Company Court. Hindustan Lever-(2004) 9 SCC 438 was pressed into service to urge that there is no adjudication by the Company Court in approving a scheme of amalgamation. The Hon'ble Supreme Court was considering whether an order sanctioning amalgamation, when it also involves transfer of immovale property, is exigible to stamp duty. The appellant argued that the order of amalgamation under Section 394 of the Companies Act was not a transfer simplicitor of property with imprimatur of the Court. This argument was rejected and it was held that the Company Court, permitting amalgamation is in the role of an umpire. The order is one affirming the compromise or arrangement and the jurisdiction exercised is merely supervisory to ensure compliance of the provisions of the Companies Act, the scheme not being violative of any provisions of law, unconscionable or contrary to public policy. It was also held that it is not for the Court to examine the commercial wisdom of the compromise or arrangement, when the majority of the members agree. The principles stated does not advance the case of the State or the additional respondents that there was suppression. On the contrary there is no suppression as alleged and HML does not claim title on the basis of the order of the Company Court; but asert title by way of lease and tranfer prior to amalgamation, to the transferor company. The order of the SO challenge the amalgamation as incompetant since the transferor company is alleged to be disabled from holding lands after independence for reason of violations of FERA and the bar in Independence Act. The order of the Company Court, only discloses the arrangement arrived at by the transferor and transfereee companies, with approval of the majority shareholders of both. As long as the holding of the transferor company is not vitiated, there can be no challenge raised against the amalgamation, especially by the State who is not a shareholder. We do not find anything substantial by way of factual or legal arguments to unsettle the amalgamation.

78. A further argument was raised that the order of amalgamation of Harrisons & Crossfield (India) Ltd. with MP (India) Ltd. has not been produced. We reject it outright, since none of the transactions with Harrisons & Crossfield (India) Ltd. are up for consideration before this Court. There is no reason for any of the authorities to look into the said amalgamation order to consider whether the proceedings initiated against the properties now held by HML and its assignees, as devolved from MP (UK) Ltd. is proper or not. We do not find any reason to question the amalgamation of MP(UK) Ltd. with MP(India) Ltd., which again is beyond the scope of the present proceedings.

79. We also notice letter No.EC.CO.FCS.2326/T-87 (Activity)/79 dated 20th February, 1979 of the RBI which dealt with the rights of MP (Holdings) Ltd., containing the following paragraph: 

“2. We write to advise that we are agreeable to the transfer of your entire business and undertakings in India to Malayalam Plantations (India) Ltd. With effect from 1st April, 1978 for a total consideration of Rs.427.27 lakhs (Rupees four hundred twenty seven lakhs and twenty seven thousand only) under a scheme of amalgamation to be approved by the High Court of Kerala. The consideration of Rs.427.27 lakhs will be allowed to be settled in the following manner: (i) Issue at par of 22,20,000 equity shares of Rs.10/- each of Malayalam Plantations (India) Ltd. To Malayalam Plantations (Holdings) Ltd., U.K., for which the Indian company should submit to us an application under Section 19(1)(d) of the Foreign Exchange Regulation ct, 1973 for our prior approval.

(ii) The balance consideration of Rs.205.27 lakhs (Rupees two hundred five lakhs and twenty seven thousand only) will be retained by the said Indian company as an interest-free unsecured loan from Malayalam Plantations (Holdings) Ltd., U.K., repayable to it in five equal annual instalments. The first such instalment will fall due on 1st April, 1979”.

This was followed up in paragraph 3 with restrictions insofar as the remittance of profit for the period upto 31.03.1977, to the UK Company, not exceeding the amount of Rs.243.48 lakhs in addition to the amount of Rs.205.27 lakhs referred to in paragraph 2 and other conditions. The RBI allowed the transfer of shares to the so called “foreign Company”.

80. As for the FERA violations, we notice the documents produced by HML, which granted permission under Section 29(2)(a) and (c) of the Act to carry on existing plantation activities subject to certain conditions. These are numbered as No.EC.CO.FCS.1009/1238-Activity-XIX-1-105/76 dated 20th April, 1976, No.EC.CO.FCS.318/1238/Activity-77 dated 31st Jan. 1977 and No.EC.CO.FCS.1089/1238 (Activity)-78 dated 16th Sep.1978. There was a question raised of the approval under Section 29(1)(a) and (b) being confined; to carry on in India or establish in India a branch, office or other place of business for carrying on any activity of a trading, commercial or industrial nature and acquire the whole or any part of any undertaking in India of any person or company carrying on any trade, commerce or industry or purchase the shares in India of any such company. For holding immovable property, there should be an approval under Section 31, was the compelling argument. Section 31 speaks of restriction on acquisition, holding, etc. of immovable propety in India.

81. Sri. Vishwanathan, learned Senior Counsel appearing for HML took us through the notes under Section 7 of the FERA, 1973 by S.R.Roy (formerly Judge, Calcutta High Court), which reads as under: 

“7. Permission to acquire immovable properties in India under section 31(1).- Clarification – once the company's application for permission under Section 29(2)(a) or (1)(a) of the F.E.R.A., 1973 to carry on its existing business (as on 1st January, 1974/new activity has been approved by Reserve Bank of India that company is not required to obtain its specific permission under section 31(1) of the Act for acquiring any immovable property (including acquisition of immovable property by way of construction on and/or extension/additions to the existing immovable property) which is necessary for/incidental to carrying on its permitted activity, as it can then avail of the benefit of the general permission granted vidE Reserve Bank of India notification No.FERA.2/74 Reserve Bank, dated 1st January, 1974. If the concerned company has not been granted approval under section 29(2)(a) or section 29(1)(a) of the FER Act, 1973 that company has to obtain Reserve Bank of India prior permission under section 31(1) of the Act for acquisition of any immovable property (including acquisition of immovable property by way of construction on and/or addition/extensions to the existing immovable property) in India”. 

Issued by the Reserve Bank of India vide letter No.CO.FCS (iii) 714/1-76 dated 10.3.1976 (reproduced from the Institute of Company Secretaries of India, New Delhi Publications).

82. The extract from the Circular as seen from Treatise on FERA (Law & Practice), a Commentary on the Foreign Exchange Regulation Act, 1973, Volume II, 1st Edition 1989 by Dilip K.Sheth, Chartered Accountant is as under: 

“Section 31 Acquisition or holding of immovable property for carrying on activity permitted by Reserve Bank – G.S.R.84 – In pursuance of sub-section (1) of section 31 of the Foreign Exchange Regulation Act, 1973 (46 of 1973), the Reserve Bank is pleased to permit a company referred to in that sub-section - 

(a) to acquire or hold any immovable property situated in India, provided that (i) such acquisition or holding of immovable property is necessary for or incidental to carrying on by such company of any activity permitted under section 28 or section 29 of the said Act; and (ii) such company files a declaration, not later than 90 days from the date of such acquisition or holding, giving full particulars of the transaction as may be required by the Reserve Bank in that regard; 

(b) to transfer, by way of security for any borrowing permitted under sub-section (7) of section 26 of the said Act, any such immovable property so acquired or held: 

Provided that the permission granted hereby shall not be available to a company, which has been permitted under section 29 to open a liaison office or to post a representative in India.

Acquisition or holding of immovable property for carrying on industrial activity.- In pursuance of sub-section (1) of section 31 of the Foreign Exchange Regulation Act, 1973 (46 of 1973), the Reserve Bank is pleased to permit a company referred to in that sub-section - (a) to acquire or hold any immovable property situate in India, provided that - (i) such immovable property is necessary for or incidental to carrying on by such company 'any industrial activity for which the company has obtained a letter of intent/industrial licence/certificate of registration from the Government of India, Ministry of Industry/Director General of Technical Development or from any other Central/State Government authority; and (ii) such company files a declaration with the Reserve Bank not later than ninety days from the date of such acquisition or holding, in such form as may be required, (b) to transfer, by way of security for any borrowing permitted under sub-section (7) of section 26 of the said Act, any such immovable property so acquired or held”.

83. The clarification issued indicates that when a permission under Section 29(1)(a) of FERA has been granted to an existing business, there is no requirement to obtain a permission under Section 31(1) of the Act for acquiring any immovable property. The contentions raised on the fraud employed with respect to the amalgamation and allegations of violation of FERA are rejected. We find that MP (UK) Ltd. had sufficient permissions and sanctions under FERA, 1973 to carry on its activities as also amalgamation with MP (India) Ltd.; thus transferring its estates and assets to the transferee Company which could hold such properties validly thereafter on the strength of such amalgamation. We also notice the amalgamation and the consequential transfer of immovable property does not require a registration. By operation of law under Section 394(2) of the Companies Act, there is a vesting of the immovable property and the requirement for a registration by levy of stamp duty was by a subsequent amendment brought in only by Finance Act, 2016.

84. Hindustan Lever-(2004) 9 SCC 438 considered the Bombay Stamp Act, which contained a definition of 'Conveyance' including every order made under Section 394 of the Companies Act. The definition of instrument was also relied on which includes every document by which any right or liability is or purports to be created, transferred etc. In the Kerala Stamp Act, 1959 the definition of 'Conveyance' was substituted by Kerala Finance Act, 2016. The substituted definition includes a deed of amalgamation and every instrument not referrred in the schedule, which transfers interest in any property, movable or immovable inter vivos. There was no provision to mandate affixture of stamp in the order of amalgamation when it was passed and there can be no defect found for reason of the conveyance, by order of Court being not affixed with stamp. Today a conveyance on amalgamation would require affixture of stamps and registration by virtue of the afore cited amendment; but not at the time when the amalgamation of HML (U.K) Ltd. with HML occurred. We also have to notice Section 394 of the Companies Act, 1956, specifically sub-section (4) and the definition at sub-clause (b) which reads as under: 

“S.394(4) (b) “transferee” company does not include any company other than a company within the meaning of this Act; but “transferor company” includes any body corporate, whether a company within the meaning of this Act are not”. 

There can hence be found no fault in the foreign company (transferor company) having been amalgamated with an Indian Company (transferee company).

85. Further we agree with the following decisions relied on by Senior Counsel, Sri. Haren P. Raval. 1987 (2) ILR Punjab & Haryana 96 Piara Singh Vs. Jagtar Singh dealt with the contention of a sale being rendered void on no permission being taken under Section 31 of the FERA Act, 1973. A learned Single Judge of that Court found that on contravention of Section 31, there could be penalization under Section 50 and prosecution under Section 58; but there was no provision invalidating a transfer made. Section 63 dealing with confiscation was also noticed and found that such a consequence does not arise for violation of Section 31. 2001-1-l.W.-161 R. Sambasivam Vs. Thangavelu arose from a Rent Control Petition filed by the transferee landlord to evict the tenants inducted by the transferor. The transfer was asserted as void for reason of violation of FERA Act. The Court relied on Piara Singh to hold violation of Section 31 not having the effect of nullifying the transfer. The Court succinctly found, from the objects and reasons of FERA, “...that the clause is incorporated with a view to reduce the drainage of foreign exchange by way of income from such property and also contingent, liability by repartriation of capital which would arise from capital appreciation” (sic-para 10). 2010 (3) MWN (Civil) 525 Sivaprakasam Vs. Ilangovan was a Second Appeal concerned with concurrent findings of the trial and appellate courts in favour of the plaintiff, a citizen of Singapore, having roots in India, who claimed a property, by virtue of a will executed by his grand father; from his uncle who was entrusted with the job of looking after the property. A defence of no permission from the RBI under FERA 1973 was taken but repelled, finding the violation, if at all existing, not interfering with the title devolved on the death of the executant of the will. Relying also on R. Sambasivam it was held that the defendant had no locus standi to raise the violation of FERA as a defence.

86. We have to notice from the extracted permission of the RBI of 20th February, 1979, that the consideration paid was by issuance of equity shares and repatriation of funds in a phased manner and even restricted such repatriation with a cap laid on the limit. The grounds raised on amalgamation and the provisions of the FERA Act, to divest title of HML, fail to impress us and they stand rejected.

X. The Indian Independence Act.

87. The contention raised is that by virtue of Section 7(1)(b) all treaties and agreements in force at the time of passing of this Act lapses with the suzerainty of His Majesty over the Indian States. Section 7(1)(b) is extracted hereunder: 

“7(1) As from the appointed day - 

(a) xxx xxx xxx 

(b) the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States, all functions exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty existing at that date towards Indian States or the rulers thereof, and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise; and 

(c) xxx xxx xxx” 

At the outset it has to be noticed, the States of Travancore and Cochin were not under direct British rule and were Princely States not directly under British rule. Further, State of TN-(2014) 12 SC 692 puts the matter beyond any pale of doubt. Paragraphs 47 and 48 are extracted hereunder: 

“47. It is true that Section 7(1)(b) of the 1947 Act uses the expression “all treaties and agreements” but, in our opinion the word “all” is not intended to cover the agreements which are not political in nature. This is clear from the purpose of Section 7 as it deals with lapsing of suzerainty of His Majesty over the Indian States and the consequence of lapsing of suzerainty. Obviously, the provision was not intended to cover the agreement and treaties other than political. We, accordingly, hold that Section 7(1)(b) concerns only with political treaties and agreements.

48. That nature of the 1886 Lease Agreement being not political is already concluded by this Court in the 2006 judgment (Mullaperiyar Environmental Protection Forum- [(2006) 3 SCC 643]. This Court has held therein - and we have no justifiable reason to take a different view - that the 1886 Lease Agreement is an ordinary agreement being a Lease Agreement and it is wholly non-political in nature”.

The agreements under which the predecessor-in-interest of HML held lands and asserted title, prior to the Indian Independence Act, is unaffected by the said enactment, for reason of the said agreements and deeds not being in the nature of political treaties and agreements; even if the British suzerainty extended over Travancore or Cochin; which it did not.

XI. The Kerala Land Reforms Act 

88. The arguments under the KLR Act to dis-entitle HML from holding the lands are that they cannot have a claim to fixity of tenure and in the alternative they cannot hold lands beyond the ceiling limit. The SO in the impugned order had also dilated upon the agrarian reforms intended by the enactment to allege that, it was never intended that a foreign Company be granted fixity of tenure. The definition of “tenant” as available under 2(57) of the KLR Act does not take in a foreign Company is the further argument. We do not think that the argument that “any person” as specifically employed in the definition of “tenant” would not take in the Company. The Kerala Interpretation And General Clauses Act,1125, and the definition of person was pointed out. Section 3(26) of the General Clauses Act, defines person as including “any company or association or body of individuals, whether incorporated or not”. The inclusive definition in the General Classes Act would apply to the KLR Act as it was held to apply to the Income-tax Act in AIR 1968 SC 317 M.M. Ipoh Vs. The Commissioner of Income Tax. Section 2(43) of the KLR Act:- “person” : “shall include a company, family, joint family, Association or other body of individuals, whether incorporated or not, and any institution capable of holding property; again an inclusive definition. There could also be no distinction with respect to an Indian Company or a foreign Company. We have already noticed that the FERA permitted the landholdings by a foreign Company, subject only to permissions and sanctions being obtained by the foreign Company holding the lands. The violations, in any event would not render void an otherwise perfect transfer. When the legislation intended regulation of transactions in foreign exchange within the country and permitted a foreign Company to hold immovable property, on sanctions and permissions being obtained, there can be no distinction based on the registration of a Company within India or outside the country.

89. With respect to the alternative contentions raised of the Company being not enabled fixity of tenure and otherwise the lands being capable of possession by the Government for reason of the ceiling limit has to be answered with reference to the decisions reported in Dr.Jerome-1972 KLT 613 (FB), N.K.Rajendramohan-(2015) 9 SCC 326 and the decision in R.F.A.336 of 2011 dated 31.01.2013 (Perumal Smaraka Nidhi v. M/s.HML). The lands in the possession of HML now sought to be taken over situates in eight districts. Though separate holdings, every individual holding exceeds 30 acres, the extent specified, being on a reference to section 3(1)(viii) of the KLR Act. By virtue of the said provision plantations in excess of 30 acres are exempt from Chapter II, “Provisions Regarding Tenancies” of the KLR Act.

90. Dr.Jerome-1972 KLT 613 (FB) was a case in which the appellant-lessor sued for recovery of possession of more than 200 acres of land, leased out by his predecessor-in-office, to another. The lessee had later transferred the rights to the respondent Company from whom the recovery of possession was sought. The respondent-Company pleaded that it is entitled to fixity of tenure under the KLR Act, which was contested by the appellant on the ground that the lands being plantation in excess of 30 acres, there could be no vesting in the Government or consequential claim to fixity of tenure, since such plantations are exempted under Section 3(1)(viii). The Full Bench of this Court found: 

“Going by the said statutory provision [definition of plantation] only land which is actually used by any person principally for the cultivation “plantation crops” or for ancillary purposes connected with such cultivation can be regarded as a “plantation”(sic-para 6). 

The Court on a reading of the original lease deed found that at the time of lease, the lands were not being put to any such use. The contention of the landlord that the determining factor for the applicability of Clause (viii) of Section 3(1) was the nature of the land at the commencement of the KLR Act was negatived; after testing the soundness of the argument on an examination of the wording used in the remaining clauses of Section 3(1) which also provided exemptions with respect to varied tenancies. It was held: 

“There can be no doubt that the exemptions granted under the aforesaid clauses will be attracted only if the transaction of tenancy was even at its inception one in relation to property of the nature specified therein”. (sic-para:7) 

It was held so in paragraph 9: 

“9. It may well be that the legislature thought that it will not be fair or proper to deny the benefit of fixity of tenure to lessees who might have taken on lease extensive Parambas or waste lands and might have in course of time by their hard toil developed them into plantations. Even under the provisions of the Malabar Tenancy Act such a tenant was entitled to fixity of tenure unless the lease itself was one granted specifically for the purpose of raising a plantation. If the interpretation of S.3 (1) (viii) contended for by the appellant is to be accepted, even such tenants in Malabar who had preexisting rights of fixity under the Malabar Tenancy Act would be divested of that valuable right and rendered . liable to be evicted. We do not think that the legislature would have intended such an anomalous consequence. Thus going by the clues furnished by the statutory history preceding this legislation and also by the express language used in S.3 (1) (viii) we are clearly of opinion that it is more reasonable to conclude that the intention of the legislature was to restrict the scope of the exemption to leases of lands which were already "plantations" on the date of the transactions”.

The binding declaration was that the exemption from vesting depended on the nature of the land at the time of lease. If barren or uncultivated lands, which were not plantations were leased out for the purpose, even of commencing plantations, then there could be no exemption from vesting. The plantations having been commenced by the foreign company, the toil which went into such cultivation cannot be discounted and ignored merely for the reason of the tenant or lessee being a foreign company.

91. The KLR Act intended agrarian reforms in so far as enabling the right to own and hold lands being conferred on those who toil in the soil; as is evident from the catchy popular phrase, that echoed around the State, during that period; which roughly translated from the Malayalam reads: “the fields we harvest are ours”. Though it arose, with the intention to benefit the marginalised section of society, who sweated on the soil, the legislation exempted plantations. This was to ensure preservation of large holdings by way of plantations, for enabling proper mass production as also preserving the employment of labourers. N.K.Rajendramohan-(2015) 9 SCC 326 approved Dr.Jerome and was concerned with an identical issue of 963.75 acres leased out to one Campbell Hunt, which stood assigned to the respondent Company therein. The legislative background of the KLR Act and also its scheme were succinctly stated in para 17 as follows: 

“17. The legislative backdrop of the 1963 Act portrays, that it was amongst others preceded by the Kerala Agrarian Relations Act, 1960 (hereinafter referred to as “the 1960 Act”) which sought to introduce comprehensive land reforms in the State of Kerala and did receive the assent of the President on 21-1-1961. The Statement of Objects and Reasons of the enactment i.e. the 1963 Act discloses that this Court had declared unconstitutional the 1960 Act in its application to ryotwari lands of Hosdurg and Kasargod Taluks, whereafter eventually the 1963 Act was enacted to provide a uniform legislation in the State, by keeping in view the broad objectives of land reforms as laid down by the Planning Commission and the basic objectives of the 1960 Act. As the scheme of the 1963 Act would dominantly demonstrate, the statutory endeavour has been to strike a fair and equitable balance of various interests to be impacted thereby so as to facilitate smooth implementation thereof, without casting undue financial burden on the State. Conferment of fixity of tenure on the tenants as well as the limited right of resumption to the landlords are also the noticeable features of the enactment with the emphasis that the right of resumption would not be available against tenants, who were entitled to fixity of tenure immediately prior to 21-1-1961 under the law then in force, unless such tenants had in their possession land in excess of the ceiling area. The Statement of Objects and Reasons do refer to as well, the provisions pertaining to determination of fair rent at uniform rates and purchase of the rights of the landowners and intermediaries of a holding by the cultivating tenant. The 1963 Act as contemplated, did provide for imposition of a ceiling on holdings and constitution of the Land Tribunal and the Land Board for the administration of the provisions, with the remedy of appeal/revision from the decisions of this fora. The legislation received the assent of the President on 31-12-1963 and some of the provisions thereof which concern the present pursuit were enforced with effect from 1-4-1964”.

92. The contention to dis-entitle fixity of tenure on the respondent were two-fold, in N.K.Rajendramohan-(2015) 9 SCC 326 . One, that the lands were private forests and the other, that it was plantation exceeding 30 acres; the former of which was given up. As in Dr.Jerome-1972 KLT 613 (FB), the lease deed was read to find that the recitals irrefutably demonstrate that at the time of its execution, the lands were not private forests nor a plantation. The recitals in the deed being so, merely by efflux of time it could not transfigure into a lease of plantation, because the plantation was raised on the leasehold land by the lessee who had been conferred with the rights and discretion to so commence such cultivation. Therein, the reliance placed on Karimbil Kunhikoman v. State of Kerala [AIR 1962 SC 723] by the landlord was negatived finding that the specific issue in N.K.Rajendramohan was not considered there. The issue dealt with in Karimbil Kunhikoman and found against the State; was the lack of adequate justification for exclusion of pepper and arecanut from the benefit of exemption granted to tea, coffee and rubber plantations; which issue did not arise in N.K.Rajendramohan. Jacob Philip v. State of Travancore 1972 KLT 914 (FB) was also distinguished insofar as the examination being confined to leases covered by Section 3(1) (i) as applicable to leases to Governments or Government owned Corporations. The determination of such leases to the Government and Government owned Corporation was found to be, as on the date of enactment of the KLR Act. The said finding was held to be quite distinct from Dr.Jerome; which was holding the field insofar as Section 3(1)(viii), and holds even now. We would balk at interfering with the decision, on well heeled principles of stare decisis.

93. Perumal Smaraka Nidhi followed Dr.Jerome and upheld the fixity of tenure claimed by HML with respect to 236 acres of land originally leased out to one Charles Brando and later assigned to the predecessor-in-interest of HML. The plaintiff/appellant who stepped into the shoes of the original lessor was found to be dis-entitled, to seek recovery of the leased lands, for reason of HML being entitled to fixity of tenure as found by the Land Tribunal. We cannot but observe, a claim raised for recovery, as against leasehold lands, could only be raised by the lessor. There is no reason to find the Government entitled to a summary eviction, that too under the KLC Act, even if there is a vesting under the KLR Act. On vesting, it is the tenant who could claim such fixity of tenure and it is in this context that the reliance of the SO to Sections 51A, 51B, 72 and 86(4) of the KLR Act, has to be looked at. We here reserve the rights of any original lessor to claim for resumption in accordance with law, as raised by one of the party respondents.

94. Section 51A speaks of “Abandonment by a Tenant” and Section 51B has the nominal heading “Landlord not to Enter on Surrendered or Abandoned Land”. There is absolutely no case of surrender or abandonment by the tenant, which in the present case is the predecessor-in-interest of HML. The claim of surrender or abandonment is raised with respect to the foreign company having held lands in violation of the Indian Independence Act and FERA; as a consequence of which the transfer to HML is asserted to be void. We have already held that the foreign Company was validly holding the lands and in such circumstance, there could be no sustainable ground of abandonment by the tenant, raised. Section 72 is again “Vesting of Landlord's Rights in Government” which translates into the cultivating tenants right to assignment under Section 72B; the crystallization of the rights to obtain fixity. The Company holding the lands has applied and obtained fixity of tenure from the Land Tribunal, which for the purpose of eviction under the KLC Act, has been brushed aside as fraudulent and collusive; which we will deal with later.

95. Section 86(4) deals with “Vesting of Excess Lands in Government”, which occurs on determination of the extent and other particulars of the land under Section 85. Upon which determination, the ownership or possession of the excess holding is to be surrendered; for having vested in the Government. The aforesaid provision is under Chapter II with respect to “Restriction on Ownership and Possession of Land in Excess of Ceiling Area and Disposal of Excess Lands”. Again Section 81 provides exemption from the Chapter, to “plantations”, as per sub-clause (e) of Clause (1). Apposite here would be reference to paragraph 20 of N.K.Rajendramohan-(2015) 9 SCC 326: 

“20. Section 13 of the enactment mandates that notwithstanding anything contrary to the law, custom, usage or contract or any decree or order of court, every tenant shall have fixity of tenure in respect of his holding and no land from the holding shall be resumed except as provided in Sections 14 to 22. Section 72 proclaims that on a date to be notified by the Government in the Official Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of Kudiyiruppus and holders of Karaimas) entitled to fixity of tenure under Section 13 and in respect of which certificates of purchase under sub-section (2) Section 59 have not been issued, shall, subject to the provisions of that section, be vested in the Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon on the said date. Whereas Section 72-B confers cultivating tenants’ right to assignments, Section 81 as well does cull out exemptions from the applicability of Chapter III captioned “Restriction on ownership and possession of land in excess of ceiling area and disposal of excess lands”.

96. The conclusions would be: The exemption from vesting, as entitled to plantations from Chapter II, is only when the tenancy, referable to the time when the lease was made, is of plantations. When ordinary lands are leased out and there is a plantation raised and continued as on the date of the enactment of KLR Act, there is a vesting in the State for the purpose of fixity of tenure. Ordinary lands leased out, wherein plantations are raised by the tenants, would be covered under Chapter II since it is the tenant who toiled in the soil. The KLR Act recognizes this toil and hence there occurs vesting. As for the ceiling limit, as prescribed under Chapter III of the KLR Act, plantations are exempted under Section 81(1)(e). This covers plantations as existing at the time of enactment. We cannot but notice, that all the decisions above referred dealt with tenancy of lands in excess of 30 acres that too of ordinary lands. We would also deal with the contentions of the SO regarding the scheme of the KLR Act being intended to benefit the poor landless people of the State. The intention definitely is there, insofar as granting fixity of tenure to leasehold lands which, by the statute, vest such lands in the Government with a consequential claim and right available to the tenant to purchase such rights and thereby crystallize the fixity of tenure as conferred by statute.

97. The provisions for vesting lands in excess of the ceiling limit prescribed in the Act is to enable assignment to the landless. But, the essential intention is agrarian reforms and in that context, a reference to Karimbil Kunhikoman, in paragraphs 31 and 32 of N.K.Rajendramohan is relevant. In the Kerala Agrarian Relations Act, 1960, which was impugned in Karimbil Kunhikoman, plantations excluded areacanut and pepper plantations. It was found in Karimbil Kunhikoman, examining the scheme of exemptions, that “it was recognized that some exemptions could have been granted from the ceiling to ensure that the productions may not suffer...”.(sic para 41). The Hon'ble Supreme Court noticed that 'the production of arecanut and rubber plantation from the 1960 Act would occasion break up of the plantation with a likely result in falling production' (sic-para 32). The Court had taken note of the recommendations of the Planning Commission against the disintegration of plantations as a measure of land reforms in the State, which would hamper promotion of national economy. The exemptions to plantations under the KLR Act was not to merely benefit Corporate entities, whether registered in India or outside or the owners of plantations, but in the larger interest of national economy. Plantations of rubber, tea, coffee, arecanut and pepper, to name a few; contributed to the national economy, provided labour to the marginalized sections and contributed to the State exchequer by way of taxes and other levies. The exemptions so granted and availed by the foreign Company cannot be negatived as not intended by the KLR Act. We do not think the contentions raised by the State to support the impugned order of the SO under the KLR Act are sustainable. The vesting and abandonment under the KLR Act having been found not applicable to the subject land, Explanation I and IA of the KLC Act would not have any application. We say this reserving the right of the Government to proceed under the KLR Act, for surrender of excess lands, held beyond the ceiling limits, not covered under the exemptions for plantations, wherever permissible. A proceeding is said to be pending before the TLB, Vythiri which would stand unaffected by our observations. If any lands are determined as, in excess of ceiling limit under the KLR Act, then alone could there be a proceeding under KLC Act taking cover under Explanation IA, if in accordance with the order of the TLB the land determined to be in excess of the ceiling limit are not surrendered.

XII. Indenture No 1600 of 1923-The Claim of Title based on the various conveyance, lease agreements, purchase certificates obtained under the KLR Act and the decisions of the Land Tribunals, Land Boards and Civil Courts.

98. The impugned order has brushed aside numerous decisions inter-partes, by the Civil Courts, the Land Boards and the Land Tribunals as fraudulent, collusive and not being conclusive. The order is also interspersed with righteous anger against “Englishmen” holding lands in India in violation of law, dis-entitling the landless masses from having benefit of such landholding. We cannot but observe, that the sporadic outbursts made, based merely on indignation against the British Rule, even if justified, are beyond the scope and ambit of a statutory exercise, governed by well known principles of; acting within the demarcated boundaries of the statutory powers conferred, natural justice and fair play. We would hence, ignore such outbursts made by the SO, as extraneous to the matter in issue. On the question of fraud, collusion and conclusiveness, we have to notice at least certain orders which were specifically placed before us. We, however, make it clear that we are not called upon to examine the title of the lands, as asserted by HML. We would hence not be required to examine all of the title deeds or the purchase certificates, tax receipts, inter-parte decisions, etc. We remind ourselves that we are only looking at the question of jurisdiction under the KLC Act. If, prima facie, a bona fide dispute is discernible on title, then necessarily the parties would have to be relegated to the Civil Court; without ourselves venturing on an enquiry, which we find ourselves incompetent to embark upon, in a proceeding under Article 226.

99. Here we have to notice the argument raised by one of the party respondents, that the entire documents have not been produced on affidavit as provided under the High Court Rules. But for indenture1600 of 1923 no other deed is produced before this Court to prove title was the argument. In this context we have to notice that we are exercising jurisdiction under Article 226 specifically invoked for the issue of a writ of certiorari, wherein we are requested to call for the records and set aside the order passed. The petitioner has produced the objections wherein various documents are produced before the SO itself. To avoid multiplicity the petitioner has desisted from producing such documents before this Court and has produced the same in compilations, copies of which have been handed over to all contesting respondents. In fact the Counsel for HML first supplied the compilations only to the Court and the State. Sri.Krishna Raj prayed for a copy and it was supplied to him and Sri.Kaleeswaram Raj. The hearing had spread over a period of two weeks, on a day-to-day basis. There was no objection raised on the documents or its production before the SO but for the allegations of fraud finding a place in the impugned order. Hence we do not think that the technical objection raised is worthy of consideration.

100. Kiriyan Kiriyan Pandarathil one of the landlords of the erstwhile foreign Company, the predecessor in interest to HML, had raised a claim of ownership and possession over a tract of land consisting of 10 square miles in Kumbazha, as his Brahmaswom. The Special Forest Settlement Officer had allowed the said claim against the then Sircar, which was confirmed in appeal by the Travancore High Court in A.S. No. 15 of 1083 by judgment dated 8th Edavom 1083. The plaintiff therein is one of the lessors to MRPL which eventually was purchased by MP(UK) Ltd., under the KLR Act; on conferment of fixity of tenure. O.S.No.4 of 1968 and O.S.36 of 1968 were filed by MP(U.K) Ltd., the foreign Company before the Subordinate Judge's Court, Kottarakkara. Both the suits were for injunction against the defendants who were the State and its officers, in the former and Panchayat and its officers, in the latter. In O.S.No.4 of 1968, the defendant-State, in its written statement specifically contended that the plaintiff owns only 9356.91 Acres of freehold land and not 9359 Acres. The above extent of land is known as “Venture Valley Group of Estates” conveyed to MRPL by the State of Travancore under title deeds of 1916. The attempt of the Government in the suit, in defense, was to preserve the right to use any portion of the above lands as public road without any let or hindrance and dismantle the gates and installations which obstructed such free passage. The properties scheduled therein are included in Exhibits P19, P20 and P21 produced in W.P.(C) No.33122 of 2014. The Sub Court dismissed O.S 4 of 1968 on the question of maintainability for want of requisite notice under Section 80 of the CPC. However, answering the issues, it was held that the relationship between the plaintiff and the defendant-State was of vendee and vendor, that the plaintiff has title over the roads in the Estate, and that the plaintiff was not estopped from claiming and exercising full ownership over the roads within the Estates. O.S.No.36 of 1968 again was with respect to Nagamallay, Isfield and Venture Estate wherein the plaintiff was granted injunction with respect to Isfield and Nagamallay Estates. The lands which were the subject matter of the said suits are included in the Schedule of the impugned orders.

101. Again a suit was filed by M.P (U.K) Ltd. with respect to the roads running through Venture Valley Group of Estates having 9359 acres, Scheduled as A in the plaint. The prayer was for injunction restraining the use of the roads, Scheduled B; by the State and its officials and from pulling down the gates set up at the entrance. The Estates were divided, for efficient management, into four; viz: Nagamally, Isfield, Venture and Ambanad Estates. This time over, there was a proper notice issued under Section 80 of the Civil Procedure Code. The State in their written statement specifically admitted the sale to MRPL, by Exhibits A-1 to A-4, but contested the transfer of rights of MRPL to M.P.(U.K) Ltd. Exhibit A-5 produced in the suit was Indenture No.1600 of 1923 and was relied on by the plaintiff to assert their ownership over the properties which were conveyed to their predecessor-in-interest, MRPL originally by Exhibits A-1 to A-4; all sale deeds executed by the Sircar. Exhibit A-5 was relied on to find ownership of the properties conveyed by Exhibits A-1 to A-4 on the plaintiff company, M.P.(U.K) Ltd. The claim for title on B Scheduled roads was declined; but their right to possession was declared subject only to the right reserved by the Government originally in the sale deeds. The injunction sought for was granted, restraining the pulling down of C Scheduled gates and any interference to the possession and control of the B Scheduled roads; subject only to the rights reserved to the Government in Exhibits A-1 to A-4; which essentially was the right of user, existing and customary, of the Government, other proprietors and the public, to pass through these roads to access the neighbouring lands.

102. The Special Munsiff, Land Tribunal, Kottayam in SMP No.106 of 1975 in AP No.38 of 1973 and SMP No.107 to 128 of 1975 held MP(UK) Ltd. entitled to fixity of tenure over 763 Acres (Mundakkayam Estate) by order dated 13.04.1976. The purchase certificate issued consequent to the above order is produced as Annexure A46 along with Exhibit P7 objection covering some of the lands scheduled as item Nos. XXIV and XXV of Exhibits P19, P20 and P21. On a reference under Section 125 of KLR Act, in O.S.No.27 of 1980, the Company was found to be a cultivating tenant and the Land Tribunal, Quilon by order dated 31.01.1984 in O.A.No.50 of 1983 found the Company entitled to fixity of tenure, which lands are covered under item No.XXII of the Schedule in P19, P20 and P21. The purchase certificate issued by the Land Tribunal, Pathanamthitta is produced as Annexure A14 in Exhibit P7 objections. Based on the purchase certificates so issued and the findings in R.C.No.1 of 2008, O.S.No.112 of 2004 filed for declaration of title and recovery of possession by Perumal's Smaraka Nidhi was dismissed. We have already noticed the decision of a Division Bench of this Court in R.F.A.No.366 of 2011 - Perumal Smaraka Nidhi, which affirmed the order of the trial Court. The judgment of the High Court has attained finality for reason of the SLP filed before the Hon'ble Supreme Court having been dismissed. Likewise, R.C.No.2 of 2007 and R.C.No.4 of 2007 [produced as Annexures A38 and A39 along with Exhibit P7, produced in W.P.(C) No.33122 of 2014] also allowed the claim of cultivating tenants with respect to the aforesaid properties entitled to fixity based on which the Civil Suits filed by the land owners were dismissed. R.C.No.3 of 1998 is yet another order of the Land Tribunal, Pathanamthitta dated 6.10.2012 wherein a similar plea was allowed. The Taluk Land Board, Vythiri as was earlier noticed, in TLH (SW) No. 36 of 1981 vide order dated 02.07.1982 exempted 57,568 acres under the KLR Act and directed surrender of 1845 acres. M.P(U.K) Ltd. challenged this order before this Court in C.R.P 3661 of 1982 in which there was a remand made, which is pending still before the TLB. The Land Board of Kerala by order dated 29.03.1974 had restored 669.15 acres tea plantation under the Kannan Devan Hills (Resumption of Lands) Act, 1971 to M.P (U.K) Ltd.

103. The decisions referred to above cannot be easily brushed aside on assertion made of fraud and collusion by the SO authorised under the KLC Act to proceed for eviction. There is a bona fide dispute on title raised by the petitioners who have also been continuing in possession of the lands, paying the taxes and duties to Government for such ownership and possession. The Government if given a carte-blanche to negative such ownership and possession, at one go, by an officer authorised to evict unauthorized possession of lands; then it would be an arbitrary exercise of power violating all principles of rule of law. As to the conclusiveness, we have no quarrel with the proposition that the Taluk Land Board, in deciding the properties that could be held within the ceiling limit and determining the extent of excess land to be surrendered to the Government, does not adjudicate on title. However, the reasoning is not applicable to valid purchasecertificates issued by the Land Tribunals. The Land Tribunals deciding the aspect of tenancy and the right to obtain fixity of tenure, on reference made by Civil Courts, confer fixity of tenure, which translates as title, by issuance of purchase certificates. The various orders and certificates issued by Courts, Land Tribunals and Taluk Land Boards cannot be nullified by the SO exercising jurisdiction under the KLC Act. Nor can the SO declare them to be fraudulent, forged or obtained by collusion. If the State has a contention that the orders and certificates issued are fraudulent or obtained by collusion, necessarily proceedings would have to be initiated to set aside the same. An officer authorised to evict unauthorized occupants cannot be permitted to adjudicate on such issues in a summary procedure.

104. Useful reference can be made, here, and reliance placed on M.K.Kunhikannan Nambiar-AIR 1996 SC 906. The appellant was the State who was concerned with the impleadment of the sisters of a declarant before the TLB. Originally, proceedings were initiated against the head of the family for surrendering an extent of 6.32 Acres alleged to be held in excess of ceiling limit under the KLR Act. The sisters of the holder of the land sought impleadment in the proceeding, claiming tenancy right over 10 Acres. The Board rejected the application, which was challenged in a revision before the High Court. The High Court upheld the order of the Board, that the tenancy alleged was a collusive attempt. Later to the said decision, in revision, the very proceedings initiated against the holder of the land was set aside for a procedural irregularity at the time of initiation, leaving liberty to proceed afresh. When proper proceedings were initiated afresh, the sisters again sought impleadment, which was allowed. A revision before the High Court affirmed the impleadment. The earlier proceedings against the rejection of impleadment was held to be inconsequential since the initiation of proceedings itself was declared void. The proceedings for impleadment and rejection, when the main matter was pending, would also be non est in law was the finding. The Hon'ble Supreme Court disagreed with the said findings and held that the order in revision against the rejection of impleadment had become final and it concludes the issue inter-partes. The subsequent order of the High Court invalidating the proceedings as void would not, in any way, affect the legality and validity of the proceedings declining to implead the sisters (sic-para-6). We extract here under the opinion of the learned Judges along with extracts made by their Lordships from authoritative texts: 

“6. It is not necessary for us to go into the merits of the case. We are of the view that the order passed inter partes in C.R.P. 3440 of 1977 dated 2-11-1977, has become final, and it concludes the matter. The observations made in the proceedings, at the instance of the 1st respondent regarding the validity of the order of the Board, in C.R.P. 3696 of 1977, will not, in any way, affect the legality and validity of the proceedings declining to implead respondents Nos. 3 and 4 or the order passed in Revision therefrom - C.R.P. 3440 of 1977. It is true that the proceedings dated 28-6-1977 was observed to be void in law in C.R.P. 3696 of 1977, filed by the first respondent. In our opinion, even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situation. Ordinarily, such an order will, in fact be effective inter partes until it is successfully avoided or challenged in higher forum. Mere use of the word "void" is not determinative of its legal impact. The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise and in this case, the only complaint about the initiation of the suo motu proceedings by Board was, that it was not initiated on intimation by the State Land Board about the nonfiling of the statement as required by Section 85(7) of the Kerala Land Reforms Act. In our opinion, this is not a case where the infirmity is fundamental. It is unnecessary to consider the matter further.

(underlining supplied by us for emphasis) 

7. In Halsbury's Laws of England, 4th edition, (Reissue) volume 1(1) in paragraph 26, page 31, it is stated, thus :- 

"If an act or decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes; and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a Court of competent jurisdiction. Until its validity is challenged, its legality is preserved." 

In the Judicial Review of Administrative Action, De Smith, Woolf and Jowell, 1995 edition, at pages 259-260 the law is stated, thus :- 

"The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The Courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows : 

(1) All official decisions are presumed to be valid set aside or otherwise held to be invalid by a Court of competent jurisdiction." 

Similarly, Wade and Forsyth in Administrative Law, Seventh edition - 1994, have stated the law thus at pages 341-342 :- 

"..... every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful action is by recourse to the law. In a well-known passage Lord Racliffe said : 

An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.

This must be equally true even where the brand of invalidity is plainly visible : for there also the order can effectively be resisted in law only by obtaining the decision of the Court. The necessity of recourse to the Court has been pointed out repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects." 

The above statement of the law supports our view that the order of the Board dated 28-6-1977, declining to implead respondents Nos. 3 and 4 (which stood confirmed in Revision) concludes the matter against respondents Nos. 3 and 4.

105. In this context, reference to the following decisions would also be relevant. (1969) 2 SCC 187 [State of Gujarat v. Patil Raghav Nadha] was a case in which the respondent acquired certain agricultural lands in an auction held by the State and got permission from the Collector to use the land for non-agricultural purpose as per a sanad. The Commissioner after more than an year exercised his revisional power and set aside the order of the Collector, when the period prescribed for a revision was three months. The order of the Commissioner was found to be bad on various grounds, including that of delay; in which period the respondent would have arranged his affairs in such a manner as to visit him with prejudice if the original order is overturned.

106. (2003) 7 SCC 667 [Ibrahim Patnam Taluk Vyavasaya Coolie Sangham v. K.Suresh Reddy] considered sale deeds, which, as permissible in certain areas of Telengana, were executed on plain paper based on which possession was delivered and applications filed before the Revenue authorities for validation of the sale, which too was issued. The appeals from such orders were rejected. Subsequently, in purported exercise of suo motu power of revision, the Joint Collector set aside the certificates long afterwards. The suo motu power was invoked by the appellant-Sangham on the ground of fraud. While affirming the order of the High Court setting aside the revisional order on the ground of delay, the Hon'ble Supreme Court noticed that in the absence of necessary and sufficient particulars pleaded as regards fraud and the date or period of discovery of fraud, the learned Single Judge as well as the Division Bench of the High Court were right in not examining the question of fraud alleged. The Hon'ble Supreme Court held so in paragraph 9: 

“9. … In the absence of necessary and sufficient particulars pleaded as regards fraud and the date or period of discovery of fraud and more so when the contention that the suo motu power could be exercised within a reasonable period from the date of discovery of fraud was not urged, the learned Single Judge as well as the Division Bench of the High Court were right in not examining the question of fraud alleged to have been committed by the non-official respondents. Use of the words “at any time” in sub-section (4) of Section 50-B of the Act only indicates that no specific period of limitation is prescribed within which the suo motu power could be exercised reckoning or starting from a particular date advisedly and contextually. Exercise of suo motu power depended on facts and circumstances of each case. In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as the Land Ceiling Act). Hence, it appears that without stating from what date the period of limitation starts and within what period the suo motu power is to be exercised, in sub-section (4) of Section 50-B of the Act, the words “at any time” are used so that the suo motu power could be exercised within reasonable period from the date of discovery of fraud depending on facts and circumstances of each case in the context of the statute and nature of rights of the parties. Use of the words “at any time” in sub-section (4) of Section 50-B of the Act cannot be rigidly read letter by letter. It must be read and construed contextually and reasonably. If one has to simply proceed on the basis of the dictionary meaning of the words “at any time”, the suo motu power under sub-section (4) of Section 50-B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties. Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity. Exercise of suo motu power “at any time” only means that no specific period such as days, months or years are not (sic) prescribed reckoning from a particular date. But that does not mean that “at any time” should be unguided and arbitrary. In this view, “at any time” must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation”.

(underlining supplied by us for emphasis) 

107. (2015) 3 SCC 695 [Joint Collector v. D.Narsing Rao] again dealt with limitation for exercise of suo motu power of revision. The allegation was of fraud and irregularity in making entries in the Revenue records. The Supreme Court found that when the entries made in the Revenue records have continued for long periods, the Government had every occasion to verify the same and take exception. There was also a suit filed for declaration of ownership and possession which was decreed and had become final. The suo motu power sought to be exercised after five decades was found to be improper. We extract from the concurring judgment at paragraph 25: 

“25. The legal position is fairly well settled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power, revisional or otherwise, such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. We may briefly refer to some of the decisions only to bring home the point that the absence of a stipulated period of limitation makes little or no difference insofar as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period”.

108. Here, we realise there is no suo motu visitation jurisdiction exercised, but all the same the State had all along accepted the title and possession of the land holdings by HML, issued exemption orders and purchase certificates under the KLR Act, accepted tax and duties for the land, buildings and the activities carried therein of plantations and had also accepted the ownership in civil proceedings initiated by HML and its predecessors as also suffered orders of restrain in the form of injunction. These cannot be allowed to be annulled, by an officer of the State authorised merely to evict unauthorised occupants from Government and puramboke lands, in one stroke, terming all such proceedings to be fraudulent and collusive. Obviously, here the proceedings commenced in the year 2006 based on unsubstantiated allegations of illegal holding of lands by HML. A High Level Committee was appointed and opinion was sought from a retired High Court Judge. The State took contrary stances of abandonment, illegal holding, statutory vesting and then finally appropriating to itself the title, on bland assertions made of fraud, forgery and collusion to abrogate conveyances and statutory orders as also binding judgments of civil courts. The SO authorised under the KLC Act has absolutely no competence to declare void the agreements, registered conveyances, certificates of purchase and exemption issued under the KLR Act or the orders of the Civil Courts and those of statutory bodies.

109. Apposite would be, reference to (2007) 4 SCC 221 A.V. Papayya Sastry Vs. Govt. of A.P. There certain land owners in collusion with the Port Trust Authorities had claimed certain lands to have been taken advance possession pursuant to acquisition initiated on the requisition of the Port Trust; thus avoiding the ceiling proceedings initiated by virtue of an enactment, later to the alleged possession taken over. The Government, much later found that no possession was taken over and set aside the earlier order of the Special Officer which found the landowners to be having no surplus lands. A challenge was made to the High Court successfully, by the landowners which stood affirmed by the dismissal of an SLP before the Supreme Court. Later the Government moved the High Court alleging that the landowners in collusion with the Port authorities had employed fraud; in which petition the High Court recalled its earlier order. The Supreme Court upheld the action of the High Court, since the fraud alleged was established. It was held: 

“21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed: “Fraud avoids all judicial acts, ecclesiastical or temporal.” 

22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order—by the first court or by the final court—has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.

23. In the leading case of Lazarus Estates Ltd. v. Beasley [(1956) 1 All ER 341] Lord Denning observed: (All ER p. 345 C) “No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud.” 

24. In Duchess of Kingstone, Smith’s Leading Cases, 13th Edn., p. 644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was “mistaken”, it might be shown that it was “misled”. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.

25. It has been said: fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).

26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of “finality of litigation” cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants.

S.P. Chengalvaraya Naidu Vs Jagannat (1994) 1 SCC 1 was quoted from, as follows: 

“The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.” “A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.” “The principle of ‘finality of litigation’ cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.” The learned Judges held so in conclusion: 

“38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent court of law after hearing the parties and an order is passed in favour of the plaintiff applicant which is upheld by all the courts including the final court. Let us also think of a case where this Court does not dismiss special leave petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order.

39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as a nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every court, superior or inferior”.

110. The vexing question then arises, from the facts of the aforecited decision, as to whether the State could have by itself, unilaterally proceeded to declare the landowners as persons having surplus lands and proceeded against the properties, without seeeking for recall of the judgment setting aside the revisional order on the allegation of fraud. The answer is provided by M.K.Kunhikannan Nambiar- AIR 1996 SC 906 and the declaration of law from the decision, as extracted herein above, in the negative. Here the State asserts title for itself, of large extents of land in the ownership and possession of a Company, evidenced so by the State's own revenue records, various statutory proceedings and decisions of civil courts. An officer authorised to evict unauthorised possession of Government or puramboke lands cannot decide title on allegations of fraud, by himself, nullifying the orders and certificates issued under a statute and anulling decisions of civil courts; binding on the State too who was a party to the lis. Fraud will have to be pleaded and established in a Court of law and a staturory authority cannot find it to avoid its binding nature.

111. On like reasoning, it has to be held that it does not lie within the authority of the SO, authorised under the KLC Act, to find Indenture 1600 of 1923 as fraudlent or a forgery. Disparities with other documents executed during the very same period is a matter of adjudication after adducing proper evidence before a civil court, granting opportunity to the other side to set forth their defence. The report submitted by the Sub Registrar to the Special Government Pleader, as was found in the case of the reports of the High Power Committee, the SIT and the Opinion of a retired Judge of this Court at best provide guidance to the State to decide on the further course of action. Once a decision is taken to proceed under a statute then the officer authorised has to take an independent decision well within the contours of the jurisdiction conferred. The Reports of the Committee, SIT and the Opinion as also the report of the Sub Registrar to the Special Government Pleader are extraneous to the consideration under the statute and cannot in any event facilitate a finding on title especially when the statute does not confer such powers of adjudication. There is also nothing to show that these reports or Opinion were given to the landholders and their objections called for, before reliance was placed on them. The order in Crl.M.C.No.6447 of 2014 only leaves liberty to proceed and is not a finding of guilt. The absence of survey numbers and the recitals not including the prior deeds are not matters that could lead to nullifying the effect of such documents. As to the three parties in the same document being represented by the very same person there is no prohibition as such and the same has to be looked at in the background of the times, when the document was executed. The very same Power-of-Attorney was representing three parties, who were all, residents of England. The registration being in violation of Regulation II of 1087(ME) again is an aspect to be adjudicated, especially in the teeth of the contention raised by HML, that the State had issued a certified copy of the document a few years back, which is not denied by the State. The absence of proper recitals in a registered deed cannot be a ground for the State, who registered the document to completely efface the effect of registration, granted by itself, to claim title for itself. On the allegation of the Settlement Register not showing the name of HML, it has to be noticed that The Travancore State Manual, Volume III by Sadasyatilaka T.K.Velu Pillai speaks of a settlement conducted by the Survey and Settlement Department, completed by the end of July, 1910. There is no further settlement carried out and, hence, the name of HML has not figured in the Settlement Register.

112. Indenture is a written agreement and the definition as found in P.Ramanatha Aiyar's Advanced Law Lexicon (3rd Edition) reads as under: 

“Indenture. 1. A formal written instrument made by two or more parties with different interests, traditionally having the edges serrated, or indented, in a zigzag fashion to reduce the possibility of forgery and to distinguish it from a deed poll. 2. A deed or elaborate contract signed by two or more parties. (Black, 7th Edn. 1999) 

Deed or instrument to which there is more than one party. It is so called because such deeds were formerly cut or torn (indented) into portions, one for each party, to prevent forgery and provide proof of each person's involvement in the transaction indentures were formerly widely used to bind an apprentice to his master for the period of his apprenticeship (Banking, Investment).

“The distinction between a deed poll and an indenture is no longer important since 8 & 9 Vict.c.106, S.5. Formerly a deed made by one party had a polled or smooth-cut edge, a deed made betwen two or more parties was copied for each on the same parchment, and the copies cut apart with indented edges, so as to enable them to be identified by fitting the parts together. Such deeds were called indentures. An indented edge is not now necessary to give the effeft of an indenture to a deed purporting to be such.” WILLIAM R.ANSON (Principles of the Law of Contract 84 (ARTHUR L.CORBIN ed., 3rd Am. ed. 1919)”.

Indenture hence could be, as in this case, the conveyance of properties effected, from one company to another, which is a private arrangement. The nature of the transaction cannot be decided merely on the terminology employed and the recitals clearly indicate conveyance of immovable properties and the same is also registered. If there is any defect in the recitals for example by reason of absence of survey numbers or details of prior deeds then it prejudices the transferee who will have to establish title and identity of the properties by adducing evidence whenever a challenge is made by way of appropriate proceedings. But that alone cannot confer title on the State.

XIII. Jenmom Rights: 

113. Padmanabharu Govindaru Namboodiripad- AIR1963Ker.86 found, with respect to Proclamation of 1040 (ME), that “The provisions of the Proclamation do not, in our opinion, confer on the tenants absolute proprietary rights in the soil. There is no clause by which the Sirkar parted with all rights in favour of the tenants and in the absence of such a provision, the holders of such lands can only be treated as holding such lands on perpetual leases.”(sic-para11). This was overruled by the larger Bench in Rev. Fr. Victor Fernandez Vs. Albert Fernandez-1971 KLT 1 and it was held that thenceforth the lessees had proprietary rights over the lands. Even then, we garner illuminative information as to the concept of 'jenmom' from the Full Bench decision. The Full bench said so on the concept: 

“18. Coming to the second category of lands, viz., Jenmom lands, the Jenmies have full proprietary rights in the soil. The origin of the title of the jenmies is shrouded in obscurity but the development of this branch of land tenure was on the assumption that Parasurama who conquered the land of Kerala or, as mythology would put it, reclaimed it from the sea, gave it as gift to Malayala Brahmins or Nambudiries. The rest of the people cultivated the lands under the Jenmies. In course of time, the Jenmies endowed certain temples built by them with lands and thus the Devaswom lands came into existence. These were similar in nature and incidents to Jenmom lands. These lands were enjoyed free of tax, the State imposing a light assessment only when the Jenmies alienated the land to others. We may extract the following passage from Sri T. Madhava Row’s Memorandum regarding the origin and nature of Jenmom rights: 

“A Jenmi is often termed a landlord. But, it must be clearly understood and also always remembered that a jenmi, though certainly a land-lord, is a peculiar kind of landlord.

“Any person, who holds a pattah from a Collector in a British District and under it holds from the British Government subject to Government tax more or less, is called a landlord in ordinary language. Even in Travancore, any coffee planter or indeed any ryot, who holds lands under a grant from the Sirkar, etc., is or may be called a landlord. But, be it remembered, such landlords are not Jenmies”.

A Jenmi differs from such landlords in that he does not derive his title to lands from the Sirkar etc. His title to the Jenmom lands is inherent . He ,is, so far as his Jenmom lands are concerned, a little territorial sovereign in a limited sense. He is landlord of his Jenmom domain exactly in the sense in which this Sirkar is landlord of all the land it grants to planters and indeed to all ryots in general; in the sense in which the British Government island-lord of all the Ryotwari lands of the East Coast Zillahs of the Madras Presidency. It is necessary, in view to avoid errors and misconceptions, to familiarize the mind to this definition of a Jenmi. The origin of Jenmom property may be briefly explained herewith a view to make the rights of jenmis clear. Kerala Desom (in which Travancore is included) was originally conquered by Parasurama, and this great warrior parcelled out the conquered lands among a limited number of Brahmins. The Brahmins then became territorial lords, each independent of the rest. From that early age, the lands have descended with the tenure almost unimpared. The lands so belonging to each Brahmin are said to constitute his Jenmom, and the Brahmin himself is called a Jenmi. These lands, so long as they continue in possession of the Jenmi, are free of all taxation. To this day this exemption continues in full force.

It must be clear from what has been stated that all the lands in Travancore belong to a body of Jenmis. There are no lands that do not belong to some Jenmi or other.

Be it remembered that the Sirkar itself is one of these Jenmis, it having come to possess Jenmom lands by gift, purchase, escheat, confiscation and other ways. It is only a great Jenmi, great in the sense that its Jenmom property is extensive.

If any person wants land in Travancore, he must obtain it from, and hold it of, some one of the body of Jenmis, i. e., from the Sirkar, which is the chief Jenmi, or from some other Jenmi”.

(emphasis supplied by us) 

References were made from an article contributed by a former Maharaja Of Travancore in 1882, available in the Travancore Law Manual Vol: VI, who likened the priestly class who were emigrants to Malabar, to that of Rome; but endowed with far superior authority than of benedictions and indulgences; viz: the sovereignity of land which they monopolised. It was also remarked that their wisdom is evident from the demise made of large tracts of land to temples; since they foresaw a degeneration of religious values, but hoped that a person who has no qualms to steal from a priest, still may not commit sacrilege of institutions of religious worship. The learned Judges then referred to the definition of “jenmom land” and “Jenmi” from the Janmi Kudiyan Regulation, V of 1071 which reads as follows: 

“Jenmom land’ means land (other than Pandaravagay, Sreepandaravakay, Kandukrishi or Sirkar Devaswom land, recognised as such in the Sirkar accounts) which is either entirely exempt from Government tax or, if assessed to public revenue, is subject to Rajabhogam only, and the occupancy right in which is created for a money consideration (kanom) and is also subject to the payment of michavarom or customary dues and the periodical renewal of the right on payment of renewal fees.” 

“Jenmi’ means a person in whom the proprietory right over Jenmom lands is vested and includes, in the case of Devaswoms owning Jenmom lands, the managing trustee or Trustees of the Institution for the time being.” 

A passage from a Memorandum prepared by a Judge of The High Court of Travancore was also extracted ; 

“The term ‘Jenmom’ was originally used by the Brahmins exclusively to denote their allodial proprietorship and is still used in that sense in courts and cutcherries in Travancore, though in other parts of Malayalam and in popular parlance in Travancore, the terra is now universally employed to denote the full proprietary right in the land of any class of people”.

(emphasis supplied by us) 

114. We have to understand the concept “jenmom” from the above reasoning. The Full Bench was overruled by the Larger Bench only on the finding that the Pandarapattom (also known as pandaravakapattom or sirkarpattom) lands, in any event answer the description of land held under ryotwari settlement and hence come within the definition of “estate” as found in Article 31A of the Constitution of India and hence subject to the ceiling limits as provided under the Kerala Agrarian Relations Act, IV of 1961. Jenmom lands hence were held by jenmies including of course the sirkar who held the largest extent. By the Proclamation of 1040 all pattom on sirkar lands were converted to full proprietary rights on tenants of pandarapattom lands as held by the Larger Bench in Rev. Fr. Victor Fernandez-1971 KLT 1. The State hence cannot have any claim over the pandarapattom lands if HML by virtue of the tenancy created in favour of their predecessor-in-interest, is in possession of the same. This is to be distinguished from the freehold lands conveyed by the Sircar as seen in the case of Venture Valley Estates, over which the State no longer retains or reserves any claim.

115. The issue is concluded by Rev. Fr. Victor Fernandez -1971 KLT 1 with respect to the lands in which the Goverment had jenmom. Now we come to the other jenmies who created tenancies in favour of the Company. We have to notice the amendment made to Jenmi & Kudian Regulation, V of 1071 (ME) by Regulation XII of 1108 (ME). We refer to “A Study of the Travancore Jenmi & Kudiyan Regulation V of 1071, as amended by Regulation XII of 1108” {authored by N.G.Pandalai, M.A. & M.L.}. The traditional origin of jenmom property, popularly traced to the myth of Parasurama reclaiming Kerala Desam from the sea was found to have no legs to stand; in the Foreword by a former learned Judge of the High Court of Travancore. The Introduction by the author also gives short shrift to the religious or superstitious theory and traces its origin to the decline of Buddhism in India, especially in South India and the spread of Aryan creed of Hinduism, whose chief tenet was that birth counted most, in determining religious merit or social status. This sweep, created priestly hierarchies for preserving and propagating the new faith, which hierarchies in the initial period exercised almost arbitrary and autocratic powers. Even later, the Ruling Chiefs were unwilling to exact taxes or dues of any kind from the priestly class in respect of the lands held by them and further gifts from various sources, including the Rulers. According to the author, this accounts for the exemption of Jenmom lands from ordinary taxation by the Ruling authority in the early days. Owing to the peculiar sanctity, blindly attached to Brahmins and Devaswoms, the subjugation of enemy principalities, led the land-holders therein, to relegate themselves to the position of lessees of lands, throwing the ownership at the face of quondum Jenmis; either Brahmins or Devaswoms. This happened mostly because the land owners were doubtful as to whether their new Ruler would recognize their private holdings. We learn from the author, that this is how the lands of Brahmins and Jenmis became free from Government tax and how their holdings increased with passage of time.

116. In Travancore, as we again notice from the Foreword, the jenmis met with checks as early as in 1005 M.E. and the Royal Proclamation of 1042 was issued to re-assert the permanent occupancy right of the Kanom tenants. The injustice perpetrated on the Kudiyans having not been fully mitigated, the Jenmi & Kudiyan Regulation of 1071 M.E. was passed. The learned Judge in his Foreword states that: “The proprietorship of the Jenmi and the permanent occupancy right of the Kudiyan are the underlying principles of that enactment”. The tyranny of the landlord was not completely vanquished and again a Committee was appointed, based on whose report the Amendment Regulation of 1108 M.E. was brought in. We notice para 6 of the Foreword: 

“6. The outstanding feature of the amendment is that it lays the ghost of the Jenmis' ownership for ever. The Jenmi has been expropriated and reduced to the position of a mere rentier. Refined considerations in the interests of the reciprocal rights and obligations have all been swept away. The solution of the problem looks like the cutting of the Gordian knot and the process is rather rough and coarse by the side of the Regulation of 1071. The measure is eminently democratic. To some extent it is socialistic also. For, one of the aims of some schools of social reformers, is to make the labourer free by breaking down the relationship of master and servant and similar situations involving superiority and inferiority by means of legislative interference. Whatever it be, to all appearance the jenmi has received the knock-out-blow. Yet it may be asked whether he has not good reason to come back smiling. For what he is entitled to by way of michavaram, renewal fees and customary dues has been consolidated and spread out with the advantage that he is assured of the payment without any worry. The burden on the Kudiyan is clearly fixed and the door has been closed on the chance of his escape. It remains to be seen who is the better for the present amendment of the Regulation”.

117. The changes introduced by the Amended Regulation have also been enumerated by the learned Author in paragraph 9 of the Introduction.

“i. Jenmi is not the owner of the land hereafter, his right being confined to the receipt of Jenmikaram as fixed by the law; 

ii. the Kudiyan is the full owner of the land subject only to the payment of the Jenmikaram to the Jenmi; 

iii. Jenmikaram is to be regulated and controlled by the Settlement Pattamicham and not by the Kanappattam contract except till the next general Land Revenue Settlement and, that even, only subject to certain statutory limitations.

iv. no renewals are hereafter obligatory; 

v. Jenmis' dues may be fractioned out and paid annually and in money as prescribed by the Statute; 

vi. the rate of interest on arrears of Jenmikaram has been reduced to nine per cent whether payable in kind or in money when collected by the Jenmy direct, or under the provisions of chapter III or otherwise through Court, and to six per cent when collected by the Government under the provisions of chapter IV; 

vii. The period of limitation for recovery of arrears of Jenmikaram has been reduced from the former period of twelve years to a period of six years.

viii. Government have undertaken the collection of Jenmikaram and payment thereof over to the Jenmi; 

ix. in the case of Government realising the Jenmikaram under the provisions of chapter IV only the land on which the Jenmikaram is a charge shall be sold for arrears of jenmikaram, though this restriction may not apply as regards the movables of the defaulter; 

x. Section 45 enacts an equitable method of the distribution between Jenmi and Kudiyan of compensation money granted by the Sircar when the Government compulsorily acquire or purchase jenmom lands”.

118. It has also been observed in paragraph 16 that “in conclusion, it may be observed that the present Regulation V of 1071 as amended has elevated the kanom holdings to the level of Pandarappattam lands” (sic). “The kudiyan has been proclaimed to the world, by a statutory declaration, to be the owner of the land in his holding in relation to everything whether in the surface or above or below it, subject only to the rights of the Government”. The rights of the Government has been held to be “the rights which inhere in every sovereign in respect of every property within his jurisdiction like eminent domain, the right to impose or regulate tax, to resume escheats, to confiscate property of criminals, are alone reserved by those clauses”(sic- para-3) in Rev.Fr.Victor Fenandez-1971 KLT 1 (Larger Bench).

119. The Royal Proclamations itself gave absolute rights to the kudiyan, but for the burden of paying consolidated sums; which otherwise was the entitlement of the jenmi by way of michavaram, renewal fees and customary dues. We pause here to remark that the KLR Act removed this burden on the Kudiyan once and for ever and liberated him from even the nominal clutches of the jenmi. Hence, both Pandarappattam lands wherein the jenmom was in the State as also those lands which were in the hands of individual jenmis which were pending on lease became the absolute property of the tenant, the kudiyan. The KLR Act resulted in the said jenmom rights being vested with the State for the purpose of assignment to the tenure holders on fixity of tenure being occasioned by virtue of the statute. Purchase certificates were issued in favour of the tenant, on payment of one time purchase price, making him the absolute title holder in ownership and possession.

120. This is the position with respect to Travancore and as has been noticed by the Full Bench and the Larger Bench, the Settlement Proclamation of Cochin of 1080 M.E., specifically Clause 13, conferred on the tenants “full rights to the soil of the lands they hold”. The Government, hence, cannot claim title over the freehold and leasehold lands in the possession of MRPL, which was conveyed to MP(UK) Ltd. and later amalgamated with HML. The findings of the SO that the Government is the largest jenmi and the private parties have to prove their jenmom rights by a registered deed, hence, is misconstrued and is not a proper application of the concept of jenmom rights as is discernible from the aforecited authoritative text and the decisions of the Full Bench and the Larger Bench.

XIV. The Edavagai Rights Acquisition Act, 1955 (Travancore) and the Puduval Rules: 

121. The SO has referred to the Edavagai Rights Acquisition Act, 1955 (hereinafter Edavagai Act) to confer title on the Government and the permission granted under the Puduval Rules to expose the assignment as being in excess of that permitted. The Edavagai Act intended acquisition and extinguishing of all Edavagai rights over the Edavagais of Edapally, Kilimanoor, Poonjar and Vanjipuzha; then vested respectively in the Edapally Swaroopam, Kilimanoor Kottaram, Poonjar Koickal and Vanjipuzha Madom. Obviously Edavagai Chiefs were the Vassals of the Travancore-Maharaja and had rights over the lands within their jurisdiction as jenmies and otherwise, for collection of rent. Each of the Edavagais are defined under sub-sections (1) to (4) of Section 2, as the Edavagai Estates, with reference to the villages, as recognised in the Revenue accounts and specifically stated to be not owned by the Government. The “Edavagai Rights” is defined under sub-section (5), as the rights and privileges which vested in the families and “Chief” was defined under sub-section (6) as the senior male member of the respective families, in whom the management of the family is vested. By Section 3(1) the privileges of the Edappally Swaroopam and the Poonjar Koickal relating to Excise Revenue of the respective Edavagais stood extinguished. The other Edavagai rights of Edappally Swaroopam, Poonjar Koikkal as also those of Kilimanoor Kottaram and Vanjipuzha Madom and the rights, title and interest vested in the Chiefs, over the respective Edavagais in respect of waste and thanathu lands assigned on Kuthagapattom or like demises were acquired by the Government in lieu of which compensation was fixed and payment prescribed under Sections 4 to 6 of the Act. The right, title and interest within the respective Edavagais, existing in favour of the families and the Chiefs, by the enactment, stood vested in the Government, free of all encumbrances. Section 8 preserved the rights of a registered holder in an Edavagai and from 01.04.1956, deemed every such registered holding to be a registered holding and the holder to be a pattaadar, under the Government, liable to basic tax imposed by the Government from time to time in lieu of the rent assessed at the settlement of the Edavagais. Hence the right acquired was with respect to the collection of rent, which pursuant to the vesting under the Act, is made liable to tax as fixed by the Government. There was also a saving clause in Section 11 which exempted from vesting, those lands held by the Chiefs as a Jenmy or as a pattadar under the Government and those held by the families, already settled and assessed, as also those lands in the direct possession of the Chiefs and any of the members of the respective families. Hence land existing on a lease from either of the Edavagais or as free hold on valid purchase made, continues in the possession and ownership of the land holder/lessee and the liability to payment of rent or other levies to the Edavagais would stand altered as liability to tax imposed by the Government. This does not change the character of the holdings and only interferes with the right, title and interest of the respective Edavagais; which stands vested with the Government.

122. The Puthuval Pattayam produced before the SO is rubbished, by the SO, on the ground that the extent of land for which patta has been issued is far in excess of the permissible limit as per the Puduval Rules. Specific reliance is placed on Rule 28(3) to assert that not more than three acres can be assigned under the Rules, while the total extent in the Pattayam produced is 2616.82 acres. We are unable to countenance the finding of the SO, on a reading of the Puduval Rules. The Rules have been framed under Section 7 of the Government Land Assignment Regulation III of 1097 for the purpose of assignment of Government lands. Rule 28 comes under Part VIII concerned with “Concessional Registry of Lands”. The assignment under the said provision is to the members of the depressed classes or to indigent families belonging to other communities, on application made to the Tahsildar of the Taluk in which the land is situated. This is not the only mode of assignment and is in fact a mode prescribed by the Puduval Rules. Rule 3(i) provides that all assignments of Government lands shall be by auction, unless directed by these Rules or specifically directed by the Government. Hence there can be assignment even on specific directions from the Government. Sub-section (ii) makes unauthorized occupation of Government lands objectionable and prohibits it. It also dis-entitles any person in such occupation, from getting that land registered in his name, without auction. Sub-section (iii) confers power on the Government to assign such encroached lands, if the occupation is bonafide. Part VI deals with “Auction Sale of Land” which prescribes a different procedure for auction of lands from below 10 acres to extents in excess of 100 acres; with hierarchical shift in authorities, in the ascending order, to confirm the auctions. Different authorities are conferred with such powers for extents below 10 acres, then not exceeding 25 and so on and so forth. Any auction above 100 acres is to be confirmed by the Government itself.

123. Part VIII speaks of “Registry of Land Without Auction” wherein different contingencies are provided enabling different extents to be assigned based on such contingencies. It is under this Chapter that Rule 25 prescribes a Puduval List in Form D to be prepared and attached to every case before the registry is sanctioned. The objection specifically taken by the SO is to the Puduval Pattayam produced by the petitioner, being one prepared under Form D. We have been supplied a copy of the same with notice to the other parties. A perusal would show that though the same bears on its forehead the mark of “Form D”; in content, it is “Form F” as seen from the 'Forms' from the Puduval Rules. Form D is a list to be prepared and appended to every case before registry is sanctioned. Form F is the Patta to be issued by the Tahsildar, when the assignment is completed and the whole of tharavila, thadivila, cost of demarcation and survey and the entire purchase money in auction is paid, on confirmation of the auction. Form F as available in the Puduval Rules has at its commencement the Taluk, No., Village, No., And Pattadar; which are respectively shown in the document produced before the SO as Pathanamthitta-5 (Taluk and No.) Kumbazha- 4242 (Village-No.) and M.P.Ltd as the pattadar. The recital just below that in the regional language is as below: 

[Omitted]

This conforms to the recital in English, in 'Form F' as available in the Rules, below the description of the property, which is extracted below: “The amount of tax as per this patta should be paid to the Proverthicar or Accountant of the Village according to the kist bundi mentioned below and receipt obtained therefor”.

The columns below are also that in Form F and we cannot accept the findings of the SO based on the Puthuval Rules.

XV. The Jurisdictional Aspect 

124. Arun Kumar-(2007) 1 SCC 732 considered the validity of revised Rule 3 of the Income Tax Rules, introducing a method of computing valuation of perquisites in the matter of rental accommodation provided by employers to their employees. The grounds of challenge interalia were the arbitrary and unfettered powers conferred on the Revenue by the subordinate legislation and the computation method being neither based on intelligible differentia nor having any nexus with the object sought to be achieved; thus ultra vires Article 14 of the Constitution. The Court held that before embarking upon a computation under Rule 3, the authority must come to a positive conclusion that the accommodation provided is a “Concession”; which was held to be the “foundational, fundamental or jurisdictional fact” (sic-para 73). Apposite here would be reference to paragraphs 74 and 84: 

“74. A “jurisdictional fact” is a fact which must exist before a court, tribunal or an authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a court, a tribunal or an authority. It is the fact upon which an administrative agency’s power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not possess.

84. From the above decisions, it is clear that existence of “jurisdictional fact” is sine qua non for the exercise of power. If the jurisdictional fact exists, the authority can proceed with the case and take an appropriate decision in accordance with law. Once the authority has jurisdiction in the matter on existence of “jurisdictional fact”, it can decide the “fact in issue” or “adjudicatory fact”. A wrong decision on “fact in issue” or on “adjudicatory fact” would not make the decision of the authority without jurisdiction or vulnerable provided essential or fundamental fact as to existence of jurisdiction is present”.

125. The sine qua non for initiating a proceeding for eviction of an occupant from a land, under the KLC Act, is that the land should be either Government land or puramboke. This is the fundamental, foundational or jurisdictional fact which must exist for proceeding under the Act. But that is not to say that the authorised officer under the KLC Act can decide the title or assert title, where there can be none found, other than by adducing evidence before a proper forum in a validly instituted proceeding. Especially when, based on registered documents, payment of tax, established occupation and unhindered possession, the occupant raises a bonafide claim of title supported by various documents produced before the SO. If it were otherwise, there need not have been a saving of the civil courts powers in the context of a dispute raised on the ownership claimed by the Government. The decisions of the Supreme Court and this Court placed reliance on by both sides have to be examined in this context.

126. Thummala Krishna Rao- (1982) 2 SCC 134 was concerned with three items (groups) of property, alleged to have been acquired by the Government of the Nizam of Hyderabad for the benefit of Osmania University, along with larger extents of lands. The University instituted a suit which was rejected, finding the plaintiff having failed to prove possession within 12 years before the filing of the suit. Later, at the instance of the University the Thahsildar took steps for summary eviction under the Andhra Pradesh Land Encroachment Act, 1905. The resultant order of eviction passed, after being unsuccessfully challenged before the statutory authorities was before the High Court. The learned Single Judge held that the questions, whether the lands were acquired by the Government and had then been transferred to the University were not questions which could be properly decided under Article 226. The Division Bench, in appeal, held that summary proceedings under the Encroachment Act cannot be resorted to, on the facts. The Hon'ble Supreme Court accepted, with approval, the finding of the Division Bench that the summary remedy provided by Section 7, cannot be availed of in cases where complicated questions of title arise for decision “unless there is an attempted encroachment or encroachment of very recent origin”. Section 6 & 7 of the A.P Encroachment Act reads as under: 

“6. Liability of person unauthorizedly occupying land to summary eviction, forfeiture of crops, etc.:- (1) Any person unauthorizedly occupying any land for which he is liable to pay assessment under Section 3 may be summarily evicted by the Collector, Tahsildar or deputy Tahsildar, and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by him after such written notice as the Collector, Tahsildar or Deputy Tahsildar may deem reasonable, be liable to forfeiture. Forefeitures under this section shall be adjudged by the Collector, Tahsildar or Deputy Tahsildar and any property so forfeited shall be disposed of as the Collector, Tahsildar or Deputy Tahsildar may direct.

(2) Mode of eviction:- An eviction under this section shall be made in the following manner, namely:- By serving a notice in the manner provided in Section 7 on the reason reputed to be in occupation orf his agent requiring him within such time as the Collector, Tahsildar or Deputy Tahsildar may deem reasonable after receipt of the said notice to vacate the land, if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and if the officer removing any such person shall be resisted or obstructed by any person, the Collector shall hold a summary inquiry into the facts of the case, and if satisfied that the resistance or obstruction was without any just cause and that such resistance or obstruction shall continue, may issue a warrant for the arrest of the said person and on his appearance commit him to close custody in the office of the Collector or of any Tahsildar or Deputy Tahsildar for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance or may send him with a warrant in the form of the schedule for imprisonment in the civil jail of the district for the like period. Provided that no person so committed or imprisoned under this section shall be liable to be prosecuted under Sections 183, 186 or 188 of the Indian Penal Code in respect of the same facts.

(3) Any person who unauthorized by re-enters and occupies any land from which he was evicted under this section, shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both”.

7. Prior notice to person in occupation:- Before taking proceedings under Section 5 or Section 6 the Collector or Tahsildar, or Deputy Tahsildar, as the case may be, shall cause to be served on the person reputed to be in unauthorised occupation of land being the property of Government, a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against under Section 5 or Section 6.

Such notice shall be served in the manner prescribed in Section 25 the Andhra Pradesh Revenue Recovery Act, 1864, (Act II of 1864) or in such other manner as the State Government by rules or order under Section 8 may direct”.

127. It was so held in Para 8 & 9 of the cited decision: 

“8. It seems to us clear from these provisions that the summary remedy for eviction which is provided for by Section 6 of the Act can be resorted to by the Government only against persons who are in unauthorised occupation of any land which is “the property of the Government”. In regard to property described in sub-sections (1) and (2) of Section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction provided for in Section 6. A person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is in unauthorised occupation of property which is declared by Section 2 to be the property of the Government and, therefore, it is in public interest to evict him expeditiously, which can only be done by resorting to the summary remedy provided by the Act. But Section 6(1) which confers the power of summary eviction on the Government limits that power to cases in which a person is in unauthorised occupation of a land “for which he is liable to pay assessment under Section 3”. Section 3, in turn, refers to unauthorised occupation of any land “which is the property of the Government”. If there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bona fide claim or title. In the instant case, there is unquestionably a genuine dispute between the State Government and the respondents as to whether the three plots of land were the subject-matter of acquisition proceedings taken by the then Government of Hyderabad and whether the Osmania University, for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the property more than 12 years before the date of the suit and the University was not in possession of the property at any time within that period. Having failed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed by Section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process of law for evicting the respondents.

9. The view of the Division Bench that the summary remedy provided for by Section 6 cannot be resorted to unless the alleged encroachment is of “a very recent origin”, cannot be stretched too far. That was also the view taken by the learned Single Judge himself in another case which is reported in Meharunnissa Begum v. State of A.P. which was affirmed by a Division Bench. It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person. What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. Facts which raise a bona fide dispute of title between the Government and the occupant must be adjudicated upon by the ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. But duration of occupation is relevant in the sense that a person who is in occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law”.

Sections 2,6&7 of the A.P Encroachment Act are in pari materia with Section 3,11&12 of the KLC Act and what is declared in Thummala Krishna Rao-(1982) 2 SCC 134 applies squarely to the KLC Act and the proceedings impugned here.

128. Padmavati Devi-JT 1995 (5) SC 481 was an appeal arising out of proceedings initiated by the Tahsildar under the Rajasthan Land Revenue Act, 1956. The occupants of the land were paying rent to the respondent, who contended that her husband came into possession as a lessee of the Government. During his lifetime he had obtained a right to hold the property till his death and then his legal heirs were enabled to continuously remain in possession, as per the Tenancy Rules brought in by the erstwhile State of Jaipur. Section 91 of the Rajasthan Act,with nominal heading 'Unauthorised occupation of land' and almost similar provisions treating such person in occupation as a trespasser, liable for summary eviction as also penalty, was held to be not capable of invocation in a “case where the person in occupation raises a bonafide dispute about his right to remain in occupation over the land' (sic-para-6). Following Thummala Krishna Rao-(1982) 2 SCC 134 it was held: 

6. “... it can be said that summary remedy available under Section 91 of the Act is not the legal process which is suited for adjudication of complicated questions of title where the persons sought to be evicted as an unauthorised occupant makes a bonafide claim regarding his right to be in possession. In such a case the proper course is to have the matter adjudicated by the ordinary courts of law.

7. In the present case, respondent No.1 has put forward a bonafide claim about her right to remain in occupation over the land . The said claim raises questions involving applicability and interpretation of various laws and documents as well as investigation into disputed questions of fact involving recording of evidence. These matters could not be satisfactorily adjudicated in summary proceedings under Section 91 of the Act and can be more properly considered in regular proceedings in the appropriate forum.” 

129. M.Sankaranarayanan-(2017) 13 SCC 661 also dealt with summary proceedings under the Karnataka Land Revenue Act, 1964, for eviction of unauthorised occupants from Government lands. The assignees of the adoptive grandson of the First Princess of the Maharaja of Mysore were before the Supreme Court challenging the refusal of the High Court to entertain writ petitions aginst the summary eviction attempted by the State, on grounds of their unauthorised occupation. The State contented that though the Deed of purchase was in the name of the First Princess, the purchase effected by the Dewan was in effect for the State of Mysore. There was also a contention that fraud was played by the erstwhile Royal Family of Mysore in showing the purchase having been made in the name of the First Princess; which was repelled by the learned Single Judge, whose findings were overturned by the Division Bench in rejecting the writ petitions declining exercise of extraordinary jurisdiction, finding the writ petitions to be not maintainable. The Supreme Court examined the backgound in which the original conveyance deed was drawn up and found the purchase having been made from the cash balance and pension of the First Princess. In the more than a century when the First Princess and her heirs held on to the property; the State had compensated her for certain encroachments and had more than once acquired portions from the larger extent paying due compensation to the First Princess and her daughter. Section 67 of the Karnataka Land Revenue Act, almost similar to the scheme of the KLC, Act was read to find the provision incapable of invocation when there is a dispute on title raised. A unilateral finding of fraud was also frowned upon. Para 19 reads so: 

“19. Furthermore, a bare perusal of Section 67 clearly indicates that it only applies to public roads, streets, lanes, etc. or to such lands which are not the property of individuals, or an aggregate of persons legally capable of holding property. A dispute of title of property between the State and individuals cannot be decided in terms of Section 67. Merely because the Secretary of the Karnataka Public Service Commission had, in his complaint, opined that the deed of conveyance executed more than 100 years back was fraudulently claimed to be in favour of the First Princess, was not sufficient ground to proceed under Section 67. It could not be held that all subsequent transactions relating to the estate property were fraudulent. Fraud must be pleaded and proved; it cannot be presumed. Therefore, we are of the view that the learned Single Judge was justified in holding that the proceedings under Section 67 were without jurisdiction. We are also of the view that the proceedings are beyond the period of limitation”.

130. The State on the question of jurisdiction has relied on various decisions, which, according to us, do not apply to the facts of the case as examined in the background of the scheme of the statute, viz., the KLC Act. Custodian, Evacuee Property-AIR 1968 SC 169 dealt with the issue whether the Custodian could decide on the ownership of a property. That the Custodian could decide as to whether a particular person has become an evacuee or not was undisputed. The wife of the evacuee having failed before the Custodian in a claim over the property, by virtue of a Will, filed a suit for injunction against the Custodian, from evicting her. While the lower authorities found the suit to be barred under the Administration of Evacuee Property Act, 1950, the High Court found that a complicated question of title cannot be decided by the Custodian. The Supreme Court, on the contrary, held that Section 7 of the Act empowered the Custodian to give notice, conduct an enquiry and pass an order declaring any property to be evacuee property. It was found that the two questions that would arise in taking a decision, in the context of the definition of “evacuee property” were (i) whether the particular person has/has not become an evacuee and (ii) whether the property belongs to him. The scheme of the Act was found to provide a complete machinery for adjudication of all claims with respect to evacuee property and any right or interest in the property could be agitated before the Custodian. Reference was also made to Section 28 which barred the jurisdiction of the Civil Courts to entertain any proceeding with respect to an order passed by a Custodian and Section 46 which barred the jurisdiction of the Civil or Revenue Courts from entertaining or adjudicating any question regarding an evacuee property and the claim of interest in such property. It was held so in paragraph 10: 

“Here under Section 7 the Custodian has to decide whether certain property is or is not evacuee property and his jurisdiction does not depend upon any collateral fact being decided as a condition precedent to assume his jurisdiction”.

The aforesaid finding clearly distinguishes the scheme of KLC Act, from the scheme of the Evacuee Property Act. It is also to be emphasized that HML-2014(4) KLT 371 specifically found the decision on the jurisdictional aspect being primary and predominant in deciding the continuance of the proceedings initiated under the KLC Act. The decision inter-partes had become final and the State even relies on it to proceed.

131. Kamla Prasad-2007 (4) SCC 213 arose from a suit instituted by the vendor for cancellation of documents executed by him on the ground of there being other co-owners whose names do not appear in the Revenue register and who have not executed the various sale deeds sought to be cancelled. The vendees defended the suit on the ground of lack of jurisdiction for reason of the U.P. Zamindari Abolition & Land Reforms Act, 1950 having conferred such jurisdiction only in a Revenue Court and barred the Civil Court from entertaining such prayer. The lower Courts found jurisdiction to be barred, but the High Court held that a cancellation of a sale deed and declaration that they are void could only be made by a Civil Court. The Supreme Court reversing the High Court held that a declaration of rights as a co-owner could only be sought before the Revenue Court under Section 229(b) of the Zamindari Abolition Act. A subtle distinction was made by the Hon'ble Supreme Court to the proposition in Sriram v. Ist ADJ (2001) 3 SCC 24. Therein, the original owner of the land sold it to another by a registered sale deed and delivered possession; based on which the Revenue records showed the name of the purchaser, after mutation. The plaintiff filed a suit for cancellation of the document which was held to be maintainable before the Civil Court, since the sale deed was obtained by fraud and impersonation, which issue could not have been agitated before a Revenue Court. It was found that when a person who is not a recorded tenure holder, seeks cancellation of sale deed on ground of fraud or impersonation, then the remedy is only before the Revenue Court. The dictum based on the specific provision which permitted a co-owner to sue the landholder for a declaration of rights as conferred by the statute does not apply in the case of the KLC Act.

132. Lakshminarasamma-(2009) 5 SCC 478 arose under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982. The enactment itself was intended at prohibition of the prevalent organized attempts to grab lands by creating fictitious institutions and bogus co-operative housing societies resulting in large accumulation of unaccounted wealth and thereby disturbance to public order. A Special Court is constituted under Section 7 which is chaired by a sitting or retired High Court Judge and four members; two of whom are retired or sitting District Judges and the other two holding or having held posts not below the rank of a District Collector. A Special Tribunal was also constituted under Section 7A which could refer a case to be tried by the Special Court. Having read the various provisions of the Act, it was held so in paragraph 24 & 25: 

“24. A legal fiction is created that it would be a civil court and/or Court of Session and would otherwise have the same power as a civil court or the Court of Session as provided for in the Code of Civil Procedure and the Code of Criminal Procedure, the Act provides for transfer of cases to the Tribunals in relation to the matters pending before any court of law relating to land grabbing. The Act also contains a non obstante clause.

25. The Special Courts and Tribunals, indisputably are entitled to determine any question or issue including the question of title or possession in the proceedings initiated before it. Special Courts and the Tribunal not only have trappings of a court but also of a civil court and, thus, are entitled to determine complicated questions of title. Would the question of adverse possession be beyond the purview of its jurisdiction is the question.

Thummala Krishna Rao was noticed, but was found to be not applicable, since the Special Court and Tribunal constituted under the Land Grabbing Act specifically provided for adjudication of such disputes and was also conferred with the powers of a Civil Court. The summary proceeding as was considered in Thummala Krishna Rao was found to be a distinguishing factor. Mandal Revenue Officer-(2010) 2 SCC 461 also was with respect to the A.P. Land Grabbing Act of 1982.

133. Much reliance was placed by Sri.Jaideep Gupta, learned Senior Counsel, on the judgment of the Division Bench of this Court in W.P.(C) No.16689 of 2013 [Prasannakumar v. State of Kerala] dated 16/10/2014. The issue agitated therein was a proceeding under the KLC Act for recovery of an extent of 45.055 cents of land, alleged to be temple property, for handing over the same to the Travancore Devasom Board. The defence was on title based on the order of the Land Tribunal and the Purchase Certificate issued under the KLR Act. Various contentions were addressed by the Court and we need not refer to all of those, since what has been emphasized by the learned Senior Counsel is the finding that the purchase certificate cannot inure to the benefit of the land holders since it was invalid in law and void ab initio. The said finding was entered into by the Division Bench of the High Court. Before the High Court, contention was raised on the basis of the Purchase Certificate issued by the Land Tribunal under the KLR Act. The Court found that the property being temple property, the land stood exempted under Section 3(1)(x) of the KLR Act and was exempted from vesting and hence there could be no fixity of tenure granted. There were also findings rendered, on the clear illegality of the proceedings before the Land Tribunal. We have to notice that the Court sustained the eviction order under the KLC Act exercising the parens patriae jurisdiction, which the officer authorized under the Act lacks. Hence, necessarily the fraud, forgery and collusion alleged would have to be pleaded and proved before a competent Court and the SO cannot arrogate to himself the powers of a Civil Court in proceeding for eviction under the authority conferred under the KLC Act.

134. We do not think, any of the decisions cited by the State apply to the proceedings under the KLC Act. On the contrary the decisions cited by the petitioners; Thummala Krishna Rao, Padmavathi Devi & Sankara Narayanan squarely apply. We have clearly found the distinguishing factor in the different statutes, which were the subject of consideration in the decisions of the Hon'ble Supreme Court. The decisions cited by the State dealt with statutes wherein the scheme envisaged adjudication on complicated questions to decide on title and constituted authorities and Tribunals, so to do; while those cited by the petitioners contemplated summary procedure for eviction where the authorised officer could not decide on questions raised of title. We have identified the scheme of KLC Act as one confined to a summary eviction and in that context we need not refer to Banerjee Memorial Club-2016 (1) KLT 241 and Shahul Hassan Musaliyar-2015(4) KHC 615, wherein the lands belonged to the Government, but the allegation of unauthorised occupation was repelled by the land holders on grounds of valid permission for possession. Here, the petitioners have a more valid ground of title which cannot be trivialised and falls within the scope and ambit of a very bonafide dispute. The SO, authorised under the KLC Act and acting under the powers conferred under the statute, to summarily evict unauthorised occupants from Government and puramboke lands cannot adjudicate on the title and then carry out eviction. The State is not exercising sovereign functions and is in an adversorial capacity in so far as the lands belonging to third parties are concerned. We again notice Section 20, which reserves the right of an occupier to establish title and so challenge a proceeding under the KLC Act, before a Civil Court. The reservation so made divests, the authority under the KLC Act, of the power to adjudicate on title. The order at Exhibit P19 in W.P. (C) 33122 of 2014 is illegal and far in excess of the powers conferred under the KLC Act and the other impugned orders directing eviction and seeking vacation are consequential orders, which also are without jurisdiction; the title of the lands being now with the holders of the respective lands, even as per the revenue records.

135. We have to refer to AIR (38) 1951 SC 115 [Rai Brij Raj Krishna v. Messrs S.K.Shaw and Brothers] and 1962 KLT 450 [Dorothy Beale v. George Kurian] on the question of jurisdiction conferred by legislature, as argued by learned Senior Counsel Sri.R.D.Shenoi. Both the judgments, relied on, the lucid statement of law by Lord Esher M.R. in The Queen v. Commissioner [(1888) 21 Q.B.D. 313], which is extracted hereunder: 

“When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given; there is no appeal from such exercise of their jurisdiction.” 

136. The Supreme Court was considering a case of the Rent Controller having evicted the tenant for reason of non-payment of rent. The tenant approached the Munsiff's Court for a declaration that the order of the Controller was illegal, ultra vires and without jurisdiction. The suit was dismissed as not maintainable, which was upheld in appeal, but the High Court reversed it. The Hon'ble Supreme Court found that the relevant Act sets up a complete machinery for investigation of those matters upon which depends the jurisdiction of the Controller to order eviction of a tenant; which includes a decision on whether there is non-payment of rent. It was held that the case falls under the second category mentioned by Lord Esher M.R., in the above extract. The High Court in Dorothy Baele was concerned with a petition before the Rent Controller, filed by the landlord, wherein the counter petitioner took up a contention that there was no letting out of any “building” as envisaged by the statute. The Rent Controller as also the revisional authority having found against the tenant, he was before the Civil Court in which the preliminary defense was on the maintainability. This Court found that the case would fall under the first category mentioned by Lord Esher M.R. and it is not for the Rent Controller to decide whether that facts exist which enable a valid proceeding before the Controller. We are of the opinion that the present case also falls under the 1st category as mentioned by Lord Esher M.R and the SO has no jurisdiction to adjudicate on the title and then proceed for eviction.

XVI. POSSESSION 

137. Reliance was placed on AIR 2004 SC 4609 [Rama Gowda v. M.Varadappa Naidu] wherein the defendant in a suit, was in appeal against an injunction granted to the plaintiff, on the basis of the proved possession of the plaintiff, without even a claim of title raised. Jurisprudence (12th Edition) by Salmond was quoted to emphasize the need to safeguard possession and enable every possessor to retain and even to recover possession, until deprived of it, by a judgment according to law. We have to notice that in the present case the petitioners do not claim right to continue holding their properties only on the basis of possession; they assert title which has been accepted by the State for long as is evident from the revenue records and payment of tax and duties on land, as the owner in absolute possession. When even a valid possession without title, as has been held in Rama Gowda can be interfered with only by recourse to Court, there can be no summary eviction under the KLC Act, of the petitioners who assert title which already has been found to be a bona fide claim.

138. The State while seeking to sustain the order of the SO under the KLC Act, maintained that if the petitioners have a claim of title, they should approach a Civil Court to establish the same as per Section 20 of the KLC Act. The petitioners however assert that their title cannot be easily challenged and their possession cannot be disturbed under the KLC Act and in that circumstance, there is no cause of action for the petitioners to approach the Civil Court. The petitioners assert that if the Government has such a claim, it is for the Government to initiate appropriate proceedings. Section 20 bars any suit in respect to any order passed under the KLC Act, unless the order is challenged on the ground that the land, which is the subject matter of the order is not a Government land or puramboke. In the present case the petitioners have invoked the remedy under Article 226, to challenge the order on the ground of absolute and total lack of jurisdiction. The defense raised by the State as to the alternate remedy, has already been negatived. If the petitioner has to establish title by recourse to a suit, it cannot be said that the Government's title could be declared by the SO. If title can be decided, it can be done in favour of the Government or the occupier. There can be no proposition urged that the officer authorized under the KLC Act can find title on the Government but not on the occupiers/possessors; which later claim has to be established under Section 20 before the Civil Court. Section 20 of the KLC Act, relegates the parties, whether it be the State or the holder of lands, to the Civil Court on questions of title.

139. We have already found that the KLC Act does not confer power on the authorized officer to decide on title. We have found that the order of the SO and the various grounds raised therein to proceed under the KLC Act are not sustainable. The order passed by the SO at Exhibit P19 in WP(C) 33122 of 2014 is liable to be set aside and when it is so set aside, on the finding that the SO does not have jurisdiction to proceed under the KLC Act, the consequential order for eviction and notice for vacation are also to be set aside.

140. We are further fortified in finding so by the decision of the Hon'ble Supreme Court reported in AIR 1961 SC 1570 [Vishan Das v. State of Punjab]. Therein a dharmasala, a temple and some appurtenant shops were standing on a piece of land as erected by one Ramji Das, which land was admittedly Government property; the constructions were made with proper sanctions. The Hon'ble Supreme Court examining the early history relating to the dharmasala, temple and shops found that, on request by Ramji Das, initially there was a sanction granted to build a dharmasala without any shops. Later, on a request made, even shops were permitted to be built for the purpose of maintaining the dharmasala and temple. After the death of Ramji Das, his legal heirs continued the management of the dharmasala, temple and shops in the land on payment of necessary taxes and charges. Some members of the public raised an objection, based on which the Deputy Commissioner gave directions and the Sub Divisional Officer dispossessed the petitioner and made over the charge of premises to the Municipal authority.

141. The State contended that the property is a trust property having public and charitable character and no proprietary rights can be claimed by the petitioner. The Court found that despite such assertion that the property was a trust, there was no effort made by the State to show, under what authority of law the State and its officers took over such property. The further defense was that the petitioners were trespassers and since the property belonged to the State, they were entitled to use minimum force to eject the trespassers. On the ground of trespass, the Supreme Court found that the true legal effect of the sanction accorded has yet to be adjudicated. Finding that admittedly Ramji Das had constructed the dharmasala, temple and shops on permission of the State, it was held that the petitioners, legal heirs of Ramji Das cannot be deemed to be trespassers. On the issue of trust, it was held that a trustee, even of a public trust, can be removed only by procedure known to law and not by an executive fiat. It was held so in conclusion in paragraph 14: 

“14.Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law. The facts and the position in law thus clearly are (1) that the buildings constructed on this piece of Government land did not belong to Government, (2) that the petitioners were in possession and occupation of the buildings and (3) that by virtue of enactments binding on the Government, the petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated. In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property. As pointed out by this Court in Wazir Chand v. State of Himachal Pradesh, 1955-1 SCR 408: (AIR 1954 SC 415).the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. In Ram Prasad Narayan Sahi v. State of Bihar, 1953 SCR 1129: (AIR 1953 SC 215), this Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others. We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority. Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only. The reasons given for this extraordinary action are, to quote what we said in Sahi's case (supra), remarkable for their disturbing implications”.

Title cannot be adjudicated under the KLC Act, intended only at eviction of unauthorised occupation. Title, to establish it or to controvert it, has to be adjudicated before a Civil Court. Title, we reiterate, in this context, we have not found on the petitioners, which we are incompetent to do in the present proceedings. Title, has to be found after adducing evidence in a properly initiated civil proceeding, if the State ventures so, to institute. There is no cause for the petitioners to approach the civil court to establish title under Section 20 of the KLC, Act; the proceedings under the Act having been set aside by us.

142. We notice that there are other contentions raised by HML and its assignees, being malice in law, having acted in a post haste manner, issue estoppel and the assignees claiming a right under the Transfer of Property Act. Having found the proceedings under the KLC Act to be without jurisdiction, we are of the opinion that we need not go into all these contentions which can be left open to be agitated if and when the State files a civil suit. The arguments raised by the parties, which we have not specifically dealt with here, are left open for adjudication in appropriate proceedings. It may not be proper for us to pre-empt such consideration at the appropriate time; when we have especially desisted from adjudicating on title, as claimed by HML and its successors; specifically on the ground of this Court lacking jurisdiction to enter upon such an enquiry in the present proceedings under Article 226. The additional 4th respondent in W.P.(C) No.7711 of 2013, G.Sreenarayanan Pandarathil, is the legal heir of the original lessor of one of the properties, who seeks liberty to agitate his cause before the appropriate Civil Court. Definitely that can be done and this judgment would not stand in the way of such a proceeding. The said party can do so, in accordance with law, not for a moment to be deemed as a finding of this Court, on the claim raised.

143. W.P(C) No.33122 of 2014 is allowed setting aside Exhibits P19, P20 and P21 issued by the Special Officer under the KLC Act. W.P(C) No.7711 of 2013 is allowed setting aside Exhibit P7 order issued by the Additional Tahsildar, again under the KLC Act. W.P(C) No.8437 of 2016 is allowed setting aside Exhibit P6 order issued by the Special Officer. W.P(C) No.5510 of 2015 filed by GFA is allowed, setting aside Exhibit P25, P26 and P27 orders issued by the Village Officer, District Collector and the Government of Kerala. W.P(C) No.10640 of 2015 is allowed setting aside Exhibits P32, P33 and P34 issued by the Special Officer, which are respectively the notice, the order of eviction and notice for vacation from the land. W.A.No.1386 of 2013 is filed against the judgment of a learned Single Judge directing the GFA to comply with the undertaking as given in W.P(C) No.7379 of 2012. The undertaking therein was for cutting and removing rubber trees from Cheruvally Estate in the context of a stop memo issued against such cutting and removal. The undertaking was in the context of the proceedings under the KLC Act which has now culminated in the order of the Special Officer, which is now set aside by this Court. The Writ Appeal hence would stand allowed, setting aside the judgment of the learned Single Judge and releasing GFA from the undertaking; which was only for reason of pending proceedings under the KLC Act. W.P(C) No.10962 of 2013 and 10320 of 2015 are allowed, setting aside Exhibit P21 impugned in the former and Exhibits P8 and P9 impugned in the latter. W.P(C) No.11598 of 2015 is allowed setting aside Exhibits P10, P14 and P15. W.P(C) No.5545 of 2017 is a public interest litigation seeking direction for CBI enquiry as recommended by the Special Officer. The SO has made the recommendation on the basis of the allegations under the FERA, the Indian Independence Act and the fraud found in his own order. The SO has also copiously referred to the observations of the learned Single Judge in the reference order. The order of the SO under the KLC Act and the allegations of fraud, forgery and collusion arrived at by the SO have been declared by us to be incompetent. The reference order of the learned Single Judge is also of no significance, since it had raised prima facie doubts, which stand effaced by this judgment. The SO, an officer authorised under the KLC Act, cannot initiate a probe on the allegations raised in the report. In seeking a CBI investigation as also the involvement of the Enforcement Directorate, the SO steps beyond the scope and ambit of the powers and authority conferred under the KLC Act. The recommendation cannot be the basis of an investigation by CBI or the Enforcement Directorate and the public interest litigation has no legs to stand. The PIL stands dismissed. We notice that there are four Writ Appeals filed from the reference order of the learned Single Judge, viz., W.A.Nos.71, 198, 239 & 240 of 2016, in which the State has filed Cross Objections, viz., respectively Nos.12, 43, 42 and 46 of 2016. In the context of our having decided the issue in the writ petition noticing that there was no specific question referred for decision by the Division Bench, we reject the Writ Appeals and the Cross Objections as unnecessary. The parties shall suffer their respective costs.

144. Before we leave the matter, we cannot but share and respectfully bow to the anguish expressed by the Constitution Bench in AIR 1961 SC 1570-Vishan Das more than half a century back and decry the action of the State which brings forth 'disturbing implications'. We draw a parallel, in the State having willingly succumbed to public outcry, without looking at the legal implications. The Government is for the people, of and by them, but it is not for the masses alone but exists for each individual. Courage and conviction is lacking when on mere public demand, arbitrary action is perpetrated visiting a citizen with prejudice. A Corporate entity also conributes to the mite of a nation and is constituted of citizens at its helm and at its foundational conglomeration of labour force and managerial staff. The Welfare State exists for the downtrodden and the marginalised, but cannot act like Robin Hood; which would be a negation of the democratic principles and blatant flouting of rule of law; which in the course of the instant proceedings itself, various Benches of this Court had emphasised time and again, in the judgments inter partes.