J.B. KOSHY v. Merchants Union v. Improvement Trust

J.B. KOSHY, Ag. C.J. & THOMAS P.JOSEPH, J.= = = = = = = = = = = = = = = = = = = = = = = = = = = = =W.A. No. 2455 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of December, 2008 J U D G M E N T ---------------------- Thomas P. Joseph, J.Heard learned counsel for appellant. Appellant's father late O.M.C. Narayanan was the declarant inC.C. No.3 of 1973 of the Taluk Land Board, Ottappalam (for short, “theTLB”). The TLB directed the said Narayanan to surrender 46.18 acres by way of excess land in addition to the land he surrendered or declared. Late Narayanan challenged that order in C.R.P. No.1780 of1981 in this Court. We are concerned in this Writ Appeal with respect to the challenge against the surrender of 12.78 acres regarding which late Narayanan claimed that he had gifted that item to Bhoodan YajnaCommittee (for short, “the Committee”). Fact of gift to the Committeewas not disputed and in the course of hearing late Narayananundertook to surrender the said item to the Committee for being dealt with in accordance with the provisions of that Committee.

LearnedSingle Judge found that the land gifted to the Committee is exempted under the provisions of the Kerala Land Reforms Act (for short, “theKLR Act”) and the mere fact that declarant continued to be inoccupation will not deprive the declarant of the benefit of the W.A. No.2455 of 2008-: 2 :-exemption. Accordingly, it was agreed that the TLB will give exemption in respect of the land so gifted to the Committee. Based on Exhibit P1 order, the TLB issued Exhibit P2 proceedings in C.C. No.3 of1973 dated 16.4.1985 exempting the land gifted to the Committee. While so the declarant died. Thereafter the TLB reopened the matter and directed the legal representatives of late Narayanan to surrender another 6.03 acres. That order was challenged by the wife of thedeclarant in C.R.P. No.698 of 1992. That C.R.P. was allowed and impugned order was set aside. According to the appellant, after the death of the declarant and his wife (parents of appellant) he is managing the property covered by the gift in favour of the Committee.

But the first respondent in violation of Section 81(s) of the KLR Actand in disregard to Exhibit P1 order in C.R.P. No.1780 of 1981 has now directed the second respondent to take possession of 12.78 acres covered by the gift in favour of the Committee. Exhibit P4 is the copy of the notice served on the appellant by the second respondent directing him to hand over the said land to the Village Officerconcerned within seven days of the date of receipt of the notice. Challenging Exhibit P4, appellant filed O.P. No.31547 of 2000 in this Court requesting to invoke writ jurisdiction under Article 226 of the Constitution of India. According to the appellant, Exhibit P4 is illegal W.A. No.2455 of 2008-: 3 :-in that the Committee has not so far started functioning and his obligation is only to hand over the land when the Committee starts functioning. It is also contended that before the impugned order was passed, no notice was given to him.

Learned Single Judge considered the contentions and found that challenge against Exhibit P4 is without any substance, appellant is only a trustee of the land in question and is bound to surrender the same. Consequently, Writ Petition was dismissed. Hence this appeal. Learned counsel for the appellant reiterated the contentions raised before the learned Single Judge. Section 81 of the KLR Act deals with lands exempted from the provisions regarding ceiling. Sub-section (s) of Section 81 deals with“lands vested in the Boodhan Yajna Committee”. It is not disputed that such lands are exempted from Chapter III of the KLR Act. It is admitted and it is of with specific contention raised by the declarantin C.C. No.3 of 1973 that this Court in C.R.P. No.1780 of 1981 ordered exemption of 12.78 acres of land which the declarant had gifted to the Committee. Contention now advanced is that the Committee has not started functioning and hence appellant is entitled to continue inoccupation of the property.

Further contention is that the property gifted to the committee has nothing to do with the provisions of the W.A. No.2455 of 2008-: 4 :-Kerala Land Assignment Act. Bhoodan Assignment Rules, 1962 (for short, “the Rules”) was published in Notification No.6710/F3/62/RD dated 23.12.1962. Rule 2(2) defines Bhoodan Movement. Sub-rule (3) of Rule 2 defines'Committee' as under: “Committee” means the Bhoodan YajnaCommittee appointed by the Akila BharatSarva Seva Sangh and recognised by Government for the purpose of these rules”.Proviso to the said rule says that

in the absence of a committee appointed as above for any reason, the Taluk Land Assignmentcommittee constituted under Rule 12A of the Kerala LandAssignment Rules, 1964, or the Municipal/Corporation LandAssignment Committees, constituted under Rule 6A of the Rules for Assignment of land within Municipal and CorporationAreas, 1995, as the case may be, shall be deemed as aCommittee for the purposes of these rules

.

Respondentsproduced Exhibit 2(a) before the learned Single Judge. Proviso above referred was added by Exhibit R2(a) Notification dated 7.8.1999. It isby virtue of the proviso that the respondents directed the appellant to W.A. No.2455 of 2008-: 5 :-surrender the land in question. Contention in short advanced is that the Committee has not started functioning and that obligation of the appellant is to surrender the land only when the Committee starts functioning. In the light of the proviso to Rule 2(3) referred to above introduced as perNotification dated 7.8.1999 that contention of the appellant has no legs to stand. Appellant cannot refuse to surrender the land in question on the premise that the Committee has not started functioning. Learned Single Judge observed that appellant is only a trustee of the land in question. We have referred to Section 81(s) of the KLR Actwhich stated that “lands vested in the Bhoodan Yajna Committee” are exempted from the provisions of Chapter III of the KLR Act.

The word“vest” is not defined in the KLR Act. The word “vest” has not got afixed connotation. It may vest in title or it may vest in possession or it may also vest in a limited sense. Meaning of the word depend upon the contest in which it is used in a particular piece of legislation (SeeF. & V. Merchants Union v. Improvement Trust, Delhi(AIR 1957 SC 344). So far as Section 81(s) of KLR Act is concerned when it stated that lands vested in the Bhoodan Yajna Committee are exempted from the provisions of Chapter III of that Act we are inclined W.A. No.2455 of 2008-: 6 :-to think that the word “vest” is used in the sense of vesting in title. We also take note of the admitted fact that late Narayanan had gifted the land in question to the Committee. Therefore we are of the opinion that learned Single Judge was justified in observing that appellant is only a trustee of the land in question. If that be so, appellant cannot act in derogative of the trust and confidence reposed in him.

His obligation is to surrender the land when required by the Committee and if no such committee has been formed, by the authority referred to in the proviso to rule 2(3) of the Rules. We are also inclined to think that in a case of this nature, this Court is required to exercise its prerogative writs under Article 226 of the Constitution because those writs are intended to be exercised to prevent injustice. In Veerappa v. Raman and Raman (AIR 1952 SC 192)the Honourable Supreme Court observed thus:

Such writs as are referred to in Article226 are obviously intended to enable the HighCourt to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction or in excess of it, orin violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in W.A. No.2455 of 2008-: 7 :-them, or there is an error apparent on the face of the record and such act, omission, error, or excess has resulted in manifest injustice

.Jeevan Reddy, J (as His Lordship then was) stated in Padmanabha Iyyengar v.

Govt. of A.P. (AIR 1990 AP 357)following the decision in Sangram Singh v. Election Tribunal(1955 SC 425) and Ventateswara Rao v. Govt. of A.P. (AIR1966 SC 828) that

the court before exercising writ jurisdiction under Article 226 of the Constitution must be satisfied that such interference is called for to meet or to further orders of justice and that by interfering in the matter the interest of justice are going to suffer, the court will withhold its arm

.Relying on A.M. Allison v. B.L. Sen (AIR 1957 SC 227) it washeld in Balarama Kurup v. Co-operative Tribunal (1993 (2)KLT 700) and Kerala Solvent Extractions Ltd. v.Unnikrishnan (1993 (2) KLT 208) that the High Court can refuse toissue a writ of certiorari if it is satisfied that there is no violation of justice. In this case appellant's father later Narayanan had gifted the W.A. No.2455 of 2008-: 8 :-land in question to the Committee much before the institution of C.R.P.No.1780 of 1981.

Till now appellant is enjoying the property notwithstanding that there was unambiguous undertaking made before this Court during the course of hearing of C.R.P. No.1780 of 1981 that the property gifted to the Committee will be surrendered to that Committee. Now by virtue of the proviso to Rule 2(3) of the Rulesrespondents have directed the appellant to surrender possession of the said land. Appellant cannot any more continue in enjoyment of the property in question. Nor can he request this Court to exercise its prerogative writ under Article 226 of the Constitution to permit him for unlawful or unwarranted enjoyment of the property. The Apex Court in Roshan Deen v. Preeti Lal (2002) 1SCC 100) observed thus: “The very purpose of such constitutional powers being conferred on the High Court is that no man should be subjected to injustice by the violation of the law. The lookout of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law.

If justice became the by-product of an W.A. No.2455 of 2008-: 9 :-erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law”.We are of the opinion that learned Single Judge rightly refused toissue writ of certiorari to enable the appellant to continue his possession and enjoyment of the land in question. He has to surrender the land as demanded by the respondents. No interference is required with the order under challenge. Writ Appeal fails and it is dismissed.J.B. KOSHY, ACTING CHIEF JUSTICE.THOMAS P.JOSEPH, JUDGE.vsv