o creamy layer exists in the State of Kerala? The court proceeded to hold
that the creamy layer principle laid down in Indra Sawhney' case cannot be
ignored as was done by Section 6 of the Act. The court also held as
follows:
"If under the guise of elimination of the 'creamy
layer', the legislature makes a law which is not indeed a true
elimination but is seen by the court to be a mere cloak, then the
court will necessarily strike down such a law as violative of
principle of separation of powers and of Arts. 14, 16(1) and 16
(4)."
Section 6 contained a non obstante clause and sought to provide that
notwithstanding the judgment of any court interalia, the reservation of
appointments pursuant to Rules 14 to 17 of Part II of the Kerala State And
Subordinate Services Rules, 1958 was to be deemed to be validly made as
if the Act in 1995, which was challenged was in force at all material times
when such reservations have been made. In the course of its judgment
the court held as follows:
"We may again point out that as a matter of law, it
is clear that six out of nine Judges in Indra Sawhney made
W.P.C.27272/2006. 9
a judicial declaration as stated under Point 1, as to the class of
persons who would belong to the creamy layer. This declaration
of law made by this court is clearly applicable to the State of
Kerala also. The Kerala Legislature cannot, in our opinion
refuse to accept this declaration of law nor can it declare
anything to the contrary."
The court further held as follows:
"In the judgment of six learned Judges in Indra
Sawhney as stated earlier, there is a specific declaration of law
that the children of IAS, IPS and other All India Services in the
Backward Classes are creamy layer and this is true "without
further inquiry." These persons are to be deemed, in law and, in
fact, to have reached such a level of social advancement that
they cease to belong to the Backward Class. The judgment also
refers to a classification of "affluent" sections identified by way of
income or property holding.
x x x x x x x x x x x x
"The non obstante clause in S.4 too cannot come to the
rescue of the State. As already stated, the said clause cannot
override the judgments of this Court based on Arts.14, 16(1) and
16(4) if the defect is not removed by the legislation. Neither
Parliament nor the State Legislature can make any law to
continue reservation to the creamy layer inasmuch as the above
judgments of this Court are based on Arts. 14 and 16(1) of the
Constitution of India, an no law can obviously be made to
override the provisions of Arts.14 and 16(1).
W.P.C.27272/2006. 10
Thus, for the aforesaid reasons, S.4 of the Act along with
the non obstante clause is declared unconstitutional and
violative of the judgments of this Court and also violative of
Arts.14, 16(1) and 16(4) of the Constitution of India.
We then come to S.6 of the Act which deals with
retrospective validation. This section again starts with a non
obstante clause. Obviously, the Kerala Legislature is having
Indra Sawhney (AIR 1993 SC 477) and Ashok Kumar Thakur
(AIR 1996 SC 75) in its mind, when it inserted, the non obstante
clause. Once S.3 of the Act is held unconstitutional, the position
is that the legislative declaration as to non-existence of creamy
layer goes and the existence of creamy layer becomes a starting
reality. That will mean that under the Act of 1995, the
Legislature has not eliminated the defect. Nor can S.4 in this
connection be of any help because that provision has also been
declared as unconstitutional. Section 6 cannot stand alone
once Ss.3 and 4 are declared unconstitutional. As long as the
creamy layer is not excluded and the defect continues, any
validation - without elimination of the defect which is the basic
clause of unconstitutionality - is, as already stated, ineffective
and will be invalid. Thus S.6 is also unconstitutional."
In Cauvery Water Disputes Tribunal's Case (AIR 1992 SC 522) the Apex
Court pronounced the Karnataka Cauvery Basin Irrigation Protection
Ordinance as unconstitutional as it affected the jurisdiction of the Tribunal
appointed under the Central Act, namely, the Inter-State Water Disputes
Act, 1956, which legislation was traced to Article 262 of the Constitution.
The court found that the purport of the Ordinance was to nullify the interim
W.P.C.27272/2006. 11
order passed by the Tribunal. Therein the court proceeded to hold as
follows:
"The Karnataka Ordinance 1991 is also against the
basic tenets of the rule of law inasmuch as the State of
Karnataka by issuing the Ordinance has sought to take law in its
own hand and to be above the law. Such an act is an invitation
to lawlessness and anarchy, inasmuch as the Ordinance is a
manifestation of a desire on the part of the State to be a judge
in its own cause and to defy the decisions of the judicial
authorities. The action forebodes evil consequences to the
federal structure under the Constitution and opens doors for
each State to act in the way it desires disregarding not only the
rights of the other Sates, the orders passed by instrumentalities
constituted under an Act of Parliament but also the provisions of
the Constitution. The Ordinance if allowed to stand would lead
to the break down of the Constitutional mechanism and affect
the unity and integrity of the nation.
The legislature can change the basis on which a decision
is given by the Curt and thus change the law in general, which
will affect a class of persons and events at large. It cannot,
however, set aside an individual decision inter-parties and affect
their rights and liabilities alone. Such an act on the part of the
legislature amounts to exercising the judicial power of the Sate
and to functioning as an appellate court or Tribunal."
The decision in M.C.Mehta v. Union of India ((2006)7 SCC 456) is
rendered only as an aftermath of the decision of the Apex Court in
M.C.Mehta's Case ((2006) 3 SCC 399), which upheld the power of the
W.P.C.27272/2006. 12
Municipal Corporation to seal premises in case of misuser and directed the
sealing process to commence. Later the court had extended the time limit
to stop misuser provided the persons filing an affidavit undertaking stopping
of the misuse before 30.6.2006. The Delhi Laws (Special Provisions) Act
was enacted on 19.5.2006. The ultimate question which arose was the
competence of the legislature to extend the time granted by the Supreme
Court in the exercise of its law making power. In the said context, the court
proceeded to hold as follows:
"Definitely, the legislature would lack competence to
extend the time granted by the Supreme Court, in the purported
exercise of law-making power. That would be virtually
exercising judicial functions. Such functions do not vest in the
legislature. In fact, those who gave undertakings are already in
breach of the undertakings by not stopping misuser by
30.6.2006. The dignity and authority of the Court has to be
protected not for any individual but for maintenance of the rule
of law. The fact that those who gave undertakings may have
been misled in view of the subsequent development can only be
a mitigating factor while considering the action to be taken for
breach of the undertakings. Further, there are no equities in
favour of those who gave undertakings to the Supreme Court
and obtained benefit of time. There is serious challenge to the
validity of the Act and the notification. Pending determination
thereof, such persons cannot be allowed to claim any benefit of
the notification."
It is pointed out that in the face of an unambiguous direction to evict the
W.P.C.27272/2006. 13
encroachers, it is not open to the legislature to make a law, be it as an
Ordinance or a plenary legislation defying the court and setting at naught
the judgments of a court made in exercise of the judicial function of the
State vested with the courts. Learned Amicus Curie contended that having
regard to the fact that the land was reserved under Section 96(1A) of the
Kerala Land Reforms Act, the same cannot be distributed under sub-
section (1) of Section 96.
6. Per contra, the learned Advocate General would contend
that the Ordinance and the law made were perfectly within the legislative
powers. He would contend that it would not be open to the petitioner in
W.P.27272 of 2006 to impugn the legislation. It is contended that all that
the State has done by way of the impugned legislation, is keeping in view
the fact that many of the persons who have encroached upon the land are
actually landless agricultural labourers entitled to assignment, protected
their possession pending the inquiry into their claims. Such a legislation, it
is contended, cannot be treated as contrary to the judgments of this court.
He refers to Rule 30 of the Ceiling Rules. Rule 30 of the Kerala Land
Reforms (Ceiling) Rules, 1970 provides that the Land Board shall verify the
applications and prepare a list of persons eligible under Section 96. Sub
section (2) provides that in preparing the list, the first preference will be
given to the kudikidappukaran, if any, on the land. Thereafter, it is provided
that the preference indicated shall be as provided thereafter subject to the
W.P.C.27272/2006. 14
provisions of sub-section (1) of Section 96 as far as practicable. It is
provided that 'second preference' shall be given to the following among
other persons:
(a) unauthorised occupants of the land, if any, provided they
have effected valuable improvements.
(b) persons evicted from Government land.
It is therefore contended that unauthorised occupants are under the rule
entitled to the grant of assignment. He would contend that it is in the
context of the mammoth problem which was posed before it and the
difficulties in dealing with such an emergent situation, the State has chosen
to pass the law in question. He relied on the decision of the Apex Court in
Virender Singh Hooda v. State of Haryana ((2004) 12 SCC 588) to draw
support for the proposition that the legislation in question is only to be
upheld. He further contended for the position that the litigation itself is not
maintainable as a public interest litigation and in this connection he seeks to
draw support from the decision of the Apex court reported in Guruvayoor
Devaswom Managing Committee v. C.K.Rajan ((2003) 7 SCC 546).
Therein the Apex Court proceeded to delineate the principles evolved by the
court for the exercise of powers under Article 226 of the Constitution in
matters relating to public interest. The learned Advocate General would
contend that the case at hand would not fall within any of those criteria laid
down.
W.P.C.27272/2006. 15
7. By order in C.M.P. 23444 of 1997 in O.P. 13111 of 1997 a
learned Single Judge of this court on 13.7.1998 directed the District
Collector, Kozhikode, the Taluk Land Board and the State of Kerala to take
back into the possession of the State the land obtained surrender of
pursuant to the order of the Taluk Land Board. This was a writ petition filed
by the Malabar Products and Rubber Company Limited, in which the
petitioner was the shareholder. An appeal was carried by respondents 1 to
4, who were directed to take back possession as W.A. 1619 of 1998. The
writ appeal and O.P.13111 of 1997 came to be heard together by the
Division Bench and by judgment dated 19.8.1998 the Division Bench
allowed the appeal and set aside the order passed in C.M.P. No. 2344 of
1997. The Original Petition was allowed and in place of the direction to take
back possession of the land, the Land Board and the Taluk Land Board
were directed to demarcate the area surrendered by the petitioner
Company. The Division Bench noted the lack of objection for demarcating
the area surrendered by the declarant. The Division Bench reasoned that
the petitioner had actually prayed for demarcation of the area surrendered
by them so that he may prevent persons from encroaching upon the rest of
the land. By Ext.P4 dated 6th November, 1995 the learned Single Judge
had rejected the claim of the petitioners, who were found to have asserted
that they have illegally taken possession of the land and such persons were
held not entitled to discretionary jurisdiction under Article 226 of the
W.P.C.27272/2006. 16
Constitution of India and therefore the Original Petition praying for the
following reliefs was dismissed.
“to call for the entire records leading to Exts.P1 top P5
and to issue a writ of certiorari quashing Exts.P1 and P2 and
any proceedings to assign the land for any other purpose than
assigning the same to landless persons;
to declare that the land vested with the Government in
the Taluk Land Board proceedings No.TLB(K) 19/73 dated
31.1.1976 cannot be assigned to nay other body or organisation
without the reservation of the same by the Taluk Land Board;
to declare that the petitioners are entitled to for
assignment of the land in Sy.Nos.93,86/2, 86/1 and 6/1 in
Raroth village in Kozhikode Taluk in accordance with the Kerala
Land Reforms Act and Ceiling Rules;
to issue a writ of prohibition prohibiting and restraining
the respondents from taking any coersive steps to evict the
petitioners and similar persons from the land from their
possession and enjoyment without the procedure prescribed by
law.”
By Ext.P5 order the Division Bench dismissed the appeal filed against
Ext.P4 as withdrawn. However, by Ext.P8, which is dated 18th March, 1997
in O.P. 13326 of 1996, which is a writ petition filed by the petitioner himself,
a learned Single Judge, taking note of the order passed in O.P. 19877 of
1996 and the decision of the Division Bench in W.A. 13 of 1996 besides
paragraphs 5 and 6 of the statement of the Government in O.P. 19877 of
1996 directed the Government to take effective steps for removing the
W.P.C.27272/2006. 17
encroachers and directed to take urgent steps for allotting the land for
public purposes as intended so as to prevent further encroachment. This
judgment came to be confirmed by Ext.P9 in W.A. 2634 of 1998 dated
22.11.2000. That was an appeal carried by the State of Kerala, the District
Collector, Kozhikode, the Tahsildar, Taluk Office, Kozhikode and the Land
Board. There the court reiterated the obligation on the part of the State and
others to remove the encroachers from the land. In Ext.P9 judgment the
court held as follows:
“Here, under Section 98 of the Act, the land had to be
protected until its assignment or until its being handed over to
the concerned public authority in terms of order Ext.P2. There
is therefore a clear obligation on the applicants to remove the
encroachers from the land.”
Ext.P10 is the judgment in O.P. 19877 of 1996 which also was disposed of
taking note of paragraphs 5 and 6 as already noted that the Government
has taken effective steps and criminal proceedings against the encroachers
and they are implementing the directions in W.A. 13 of 1996. Noting that a
mere statement is not enough, the learned Single Judge has directed that
the Government should see that the encroachers are ousted from the land.
Ext.P10 is dated 5.3.1997. It is thereafter that Ext.P11 judgment was
pronounced in O.P.3366 of 2002 at the instance of persons who sought for
a direction to assign the land in question to the occupants under Section 96
W.P.C.27272/2006. 18
of the Land Reforms Act and to refrain from evicting them. Taking notice of
the judgment in O.P.19877 of 1996 and the contempt of court case, which
is pending therein and the binding nature of the judgment, it was observed
that the prayers sought were to be declined and it was observed that the
petitioners therein or anybodyelse, if aggrieved to take up the matter in a
properly constituted appeal. It is thereafter that the observations have been
made, namely, that if the petitioners have got a case that they are entitled to
assignment, it is for them to approach the appropriate authorities in
accordance with law and seek their remedies, if their applications to that
effect are rejected by the appropriate authorities.Ext.P12 is an affidavit in
the suo motu contempt filed by the Chief Secretary. In Ext.P12 affidavit,
which is dated 24th June, 2006, it is inter alia stated as follows:
“Several O.Ps and Writ Appeals were filed before this
Hon’ble Court in this case and the last one in the series was
O.P. No.3366 of 2002 filed by Shri.C.K. Nanu MLA and 10
others. This Hon’ble Court on 30.01.2002 ordered stay of the
eviction of the encroachers. On 8.2.2006 this Hon’ble Court
dismissed O.P. No.3366 of 2002 with the observation that if the
petitioners have got a case that they are entitled to assignment
of the land encroached upon, it is for them to approach the
appropriate authorities in accordance with the law and seek
their remedies if their applications to that effect are rejected by
the appropriate authorities. On enquiry some of the
encroachers are found eligible for land assignment.
The present Government have only taken charge about
W.P.C.27272/2006. 19
one month back and have not received enough time to study the
whole case in depth. In view of the direction of this Hon’ble
Court in judgment dated 08.02.2006 in O.P. No.3366/02 and the
fact that Government have to consider the genuine claims of the
encroachers, whether they are really eligible people for
assignment, it will create great hardship to them if they are
evicted now.
Therefore, Government proposes to examine the claims
and grievances of the settlers and some more time is necessary
for the present Government, to study the issues involved.
Therefore six months time may kindly be granted to complete
the process accordingly.”
Still later, by Ext.P13 order dated 27.6.2006 the Division Bench clarified that
even if it is assumed that there is some obscurity in the matter, none of the
trespassers have right, title or interest. It is also stated that so far as the
stand of the Government reflected in Ext.P12 affidavit that the trespassers
have some right under Section 96 of the Kerala Land Reforms Act is
concerned, the same is patently incorrect in view of the earlier decisions of
the Division Bench and in particular the decision rendered by the Division
Bench of this court in O.P. 3366 of 2002, where the claim made by them
based on Section 96 of the Land Reforms Act was specifically rejected.
The matter came to be listed on 31.7.2006 apparently in the hope that the
State may even now take steps to comply with the orders which have
become final. It is thereafter that the impugned legislation initially in the
form of Ordinance and still later as plenary legislation followed.
W.P.C.27272/2006. 20
7A. We would think that there is merit in the contentions of
the petitioner. The judicial power of the State is vested in the judicial organ.
The chief function of the court is to decide the lis between the parties. Its
decision is clothed with finality as far as the parties are concerned unless
the same is reversed by itself or a superior forum in appropriate
proceedings. One of the parties be it the State itself, the State is bound to
act in terms of the decision. Neither by an executive fiat nor by a legislative
device can a State wedded to the rule of law claim the right to set at naught
a judicial pronouncement by merely saying that notwithstanding the
judgment, what is to be done is as stated in the executive fiat or the
legislative instrument. It ill-behoves an organ of the State to intrude into
the judicial power vested with the courts. Undoubtedly it is open to the
State to make law, by which it removes the very foundation of the judgment
and provide for the resultant position such as it is advised to do.
8. In the facts of this case, we are at a loss as to how it is
open to the State to contend that the basis of the judgments directing the
encroachers to be removed was in any manner changed. Therefore it is not
open to the State to contend that the Ordinance or the Act which are called
in question must pass muster. Having gone through Exts.P11 and P13,
we are persuaded to think that it is not open to the respondents to justify the
impugned acts of legislation by referring to the observations contained
therein. The State had in the statement made its stand clear namely that
W.P.C.27272/2006. 21
there was encroachment and they were attempting to remove the
encroachment.
9. There were judgments of this court directing the removal of
the encroachment. It is in the teeth of these circumstances that we must
appreciate the validity of the legislative acts. The effect of both the
Ordinance and the Act is to defeat and to set at naught the directions.
These legislative exercises are without the support of any material taking
away the basis of the judgments referred to. We are of the view that the
learned Advocate General cannot derive any support from the decision
reported in Virender Singh Hooda’s Case (Supra). That was a case
where the court took the view that the basis of any judgment can be
removed as far as the constitution is not contravened and judicial power is
not usurped, the Circulars which were apparently the basis of the decisions
of the Apex Court in Virender S. Hooda’s Case ((1999)3 SCC 696) and
Sandeep Singh’s Case ((2002) 10 SCC 549) were apparently removed by
the legislature by repealing the Circulars. It was in this factual context that
the court had to consider and lay down principles about efficacy of
enactment having retrospective operation as it was not a case of usurpation
of judicial power. The court held as follows:
“It is equally well settled that the legislature
cannot by a bare declaration, without anything more, directly
overrule, reverse or override a judicial decision; it may, at any
time in exercise of the plenary power conferred on it by the
W.P.C.27272/2006. 22
Constitution render a judicial decision ineffective by enacting a
valid law on a topic within its legislative field, fundamentally
altering or changing with retrospective, curative or neutralising
effect the conditions on which such decision is based.”
It is to be noticed that in this case we are unable to see how the basis of the
directions of this court could be said to have been removed by the State. In
such circumstances, we are of the view that the legislative effort has to be
held to fall foul of the fundamental postulate that the State cannot be
permitted to overrule or negate a judicial pronouncement in the purported
exercise of its legislative powers.
10. No doubt the learned Advocate General contended that it
was not open to the Division Bench to have clarified or to make the
observations in Ext.P13. He has relied on the following decisions and
contended that when a case is decided in contempt jurisdiction, the court
does not sit in judgment over the correctness of the judgment, the violation
of which is complained of and it is quite outside the jurisdiction of the court
to give any direction or to otherwise pronounce upon the correctness of the
judgment in question.( See the decisions reported in Director of
Education, Uttaranchal v. Ved Prakash Joshi ((2005) 6 SCC 98) and in
State of Bihar and Others v. Rajendra Singh and Another (JT 2004(8)
SC 168). Learned Advocate General would contend that the legislation was
fully justified having regard to the observations made in O.P.3366 of 2002,
which we have already referred to.
W.P.C.27272/2006. 23
11. We are afraid that the stand of the State to encroachers
betrays a disregard of the roles assigned to the three organs of the State
under our Constitutional scheme of things. While it may be open to the
State by a validating act to remove the foundation for the judgment and to
give retrospectivity to take away the effect of a judgment, it is not open to
the Sate to simply disregard a declaration or direction given by a competent
court. We notice that the judgment of the learned Single Judge in Ext.P8
was confirmed by a Division Bench in Ext.P9. The said judgment is in the
year 2000. There is a positive direction by this court, which has become
final, to evict the encroachers. This is in a Writ Petition filed by the
petitioner. It is in the teeth of this judicial pronouncement, which had
become final and the State, which is a party to the proceedings has yet
proceeded to invoke its legislative power and say that they will not evict
them and instead the eviction will be stayed. We are of the opinion that this
stand, which is reflected in Section 3 is absolutely violative of the
fundamental tenet of the rule of law and can be premised only on the
overreaching of the powers vested in the State in its legislative capacity.
The State did not chose to impugn Ext.P13 before an appropriate forum. In
fact in the contempt of court case, rejecting the stand reflected in Ext.P10
affidavit of the Chief Secretary, this court had expressed its view against the
same and provided an opportunity to the State to act in conformity with the
judgments.
W.P.C.27272/2006. 24
12. In such circumstances, we are inclined to partly allow
W.P.(C)27272 of 2006 and we declare that Ext.P14(d) Act providing for
stay of eviction in Section 2 thereof is invalid.
We record our appreciation for the efforts taken by Amicus
Curiae Sri.M.S. Narayanan.
H.L. DATTU,
CHIEF JUSTICE
K.M. JOSEPH,
JUDGE
sb.
? IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 16210 of 1997(D)
1. FR.GEORGE PULIKUTHIYIL CMI
… Petitioner
Vs
1. STATE OF KERALA
… Respondent
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :ADVOCATE GENERAL
The Hon’ble the Chief Justice MR.H.L.DATTU
The Hon’ble MR. Justice K.M.JOSEPH
Dated :17/10/2008
O R D E R
H.L.DATTU, C.J. & K.M.JOSEPH, J.
– – – – – – – – – – – – – – – – – – – – – – – – – – – – –
O.P. No. 16210 of 1997
– – – – – – – – – – – – – – – – – – – – – – – – – – – – –
Dated this the 17th day of October, 2008
JUDGMENT
K.M.JOSEPH, J.
Petitioner claims to be the Secretary of a Society, which is
said to conduct Seminars, legal awareness programmes, legal
education, out of court settlement of disputes etc., and its main object is
to make the people aware of civil rights. The Original Petition is filed
purporting to be in public interest.
2. The case of the petitioner in brief is as follows:
Petitioner approached this court by filing O.P.19877 of
1996 for evicting encroachers from Government land set apart for the
setting up of a CRPF Camp and a battalion of Rapid Action Force.
Ext.P1 is the judgment therein. By Ext.P1 judgment dated 5.3.1997 a
learned Single Judge of this court taking note of the contention that
even though police picket was put up, it was admitted in the statement
that there are encroachments and the Government is not taking effective
steps and that this is a sorry state of affairs and earlier encroachers have
already been evicted and subsequently a mass trespass took place and
O.P.16210/1997. 2
those occupants are now put up in the land and further referring to the
further statement that they are taking effective steps and criminal
proceedings are being taken against the encroachers and they are
implementing the directions in W.A. 13 of 1996, it was ordered that the
Government should see that the encroachers are ousted from the
Government land. It is further case of the petitioner that by order
dated 10.4.1997 in C.M.P. No.11937 of 1997 in O.P. No.19877 of
1996 this court had directed the second respondent to comply with the
directions in the judgment on or before 30.6.1997. However, by the
impugned order, namely, Ext.P8, the earlier order transferring the land
to the Agriculture Department and to the CRPF were cancelled. It is
stated to be issued with malafide intention.
3. Proceedings were initiated by the Taluk Board against
M/s. Malabar Produce and Rubber Company Limited (hereinafter
referred to as ‘the Company’) under the Land Reforms Act. An extent
of 126.01 and half acres of land was directed to be surrendered. The
Company surrendered the surplus land. Third respondent took
possession of the land on 7.4.1989. By Ext.P3, the Secretary, Land
Board reserved for public purpose an extent of 185 acres for
O.P.16210/1997. 3
establishing a progeny orchard. Subsequently, by Ext.P4 order dated
19.8.1995 Government sanctioned transfer of 96.5 acres of land from
the surplus land available in R.S. No.2,86/1 and 86/2 of Raroth Village,
Kozhikode to the Central Reserve Police Force for accommodating the
Rapid Action Force Battalion sanctioned for the Kerala State. It is
stated that the said land came to be encroached by a group of persons,
who belong to different political parties including the ruling party. The
encroachment commenced during the period preceding the General
Elections, 1996 and it is being carried on massively with the aid and
connivance of respondents 1 to 6. It is the case of the petitioner that
Rule 32 of Land Reforms (Ceiling) Rules prohibits any kind of
assignment of land when it is reserved for any public purpose. The
second respondent is stated to be the custodian of surplus land and he is
duty bound to preserve and protect the Government land. Valuable
trees are cut and removed with the connivance of revenue and forest
officers. Petitioner relies on Exts.P5 and P6, which are copies of news
reports in the Indian Express dated 29.11.1995 and 22.12.1995. Ext.P7
is an affidavit filed by the first petitioner in O.P. No. 19328 of 1995.
That was a writ petition filed earlier against encroachment. However,
O.P.16210/1997. 4
Ext.P7 affidavit is produced to show that though an interim order has
been passed in the writ petition against the encroachment, the
petitioners therein were threatened from different corners and they
decided not to prosecute the petition. It was while so that Ext.P8 order
came to be passed. Ext.P8 order is dated 31.3.1997. Therein, it is inter
alia stated as follows:
“Government find that it is necessary to
cancel the orders issued in G.O.(Rt)695/90/RD dated
12.3.90 and G.O.(MS) 408/95/FD dated 19.8.95
transferring the said surplus land to Agriculture
Department and CRPF respectively. Government are
therefore pleased to order that G.O.(Rt) 695/90/RD dated
12.3.90 and G.O.(MS) 408/95/RD dated 19.8.95
transferring the surplus land in Thamarassery Panchayat of
Raroth Village, Kozhikode to Agriculture Department and
CRPF respectively are hereby cancelled.”
4. The prayers in the Original Petition are to quash Ext.P8
and to restrain State of Kerala from implementing Ext.P8 and to protect
the fundamental rights of the citizens.
O.P.16210/1997. 5
5. We heard learned Senior counsel for the petitioner
Sri.K.Ramakumar and the learned Advocate General.
6. Sri.K. Ramakumar placed reliance on the decision of the
Apex Court reported in M.C. Mehta v. Union of India ((2006) 7 SCC
456. He also relied on the decision of the Apex Court reported in
Cauvery Water Disputes Tribunal’s Case (AIR 1992 SC 522).
7. In Cauvery Water Disputes Tribunal’s Case, the
Apex Court pronounced the Karnataka Cauvery Basin Irrigation
Protection Ordinance as unconstitutional. The court took the view that
the Ordinance had the effect of nullifying the order passed by the
Tribunal and it is not open to the legislature to make inroad into the
independence of the body discharging judicial functions. In
M.C.Mehta’s Case also the Apex Court frowned upon the attempt to
dilute the efficacy of the orders passed by the court.
8. In this case there is no doubt that the lands in question
are lands which were vested with the Government. Section 96 of the
Kerala Land Reforms Act provides for distribution of the land among
the categories of persons, who are mentioned therein. Government has
made the Ceiling Rules also to facilitate the distribution of the lands.
O.P.16210/1997. 6
Under Section 96 of the Kerala Land Reforms Act, it is open to the
Land Board to reserve any land for any public purpose. Obviously,
such lands, which are reserved for public purpose by the Land Board
cannot be subject matter of assignment. This is clear from Rule 32 of
the Land Reforms (Ceiling) Rules.
9. According to the petitioner, there is no reason given in
Ext.P8 for cancelling the earlier orders. It is also the case of the
petitioner that Ext.P8 constitute an attempt to overreach the powers of
this court.
10. Learned Advocate General argued that it is within the
powers of the Government to cancel the orders having regard to the
facts present.
11. In Ext.P8 reference is made to Government Order
dated 12.3.1990. That was an order apparently implementing Ext.P3
order and an extent of 110.014 acres of surplus land, reserved for public
purpose was ordered to be allotted to Agriculture Department.
However it is stated that the Department did not take possession of the
land. Thereafter reference is made to the requisition by the CRPF
O.P.16210/1997. 7
authorities for accommodating a battalion of the Rapid Action Force. It
is thereafter that reference is made to the letter dated 13.12.1995 that
the land is occupied by encroachers and the land transfer is not possible
without evicting the encroachers and requiring a huge police force.
Reference is made to the further direction in O.P.4023 of 1996 to take
action to evict the encroachers. Further, reference is made to the
judgment in O.P.1703 of 1996, wherein the court had inter alia ordered
that the encroachment is to be averted and if the Government does not
want the land for the purpose, it shall be assigned to the landless
persons in terms of the Land Reforms Act or Land Assignment Act,
without giving any weightage to the encroachers. Further, reference is
also made to the interim order in O.P.13326 of 1996 not to assign the
lands. Thereafter stating that it is necessary to cancel the orders dated
12.3.1990 and 19.8.1995, the Government cancelled the same.
12. In Ext.P4, no doubt reference is made in paragraph 2,
to the letter read as second paper. Thereunder it would appear that the
Land Board has suggested to set apart the land for public purpose so as
to transfer it to the Ministry of Home Affairs.
O.P.16210/1997. 8
13. Ext.P8 is essentially an administrative order. We do
not think that it may be open to the petitioner to challenge the validity
of Ext.P8 for the reason that reasons are not stated in Ext.P8.
Undoubtedly, every action of the State must be fair. In this case,
obviously the State felt that on the one hand Agriculture Department
did not take over the land pursuant to the order earmarking it to the
Agriculture Department, and on the other hand it had a problem of
removing encroachers. It embodies a policy decision to cancel the
orders. At any rate proceeding on the basis that there is a legal hurdle
of the power of the Government in the matter in view of Section 96
(1A), we must pose ourselves to the question when we are finally
disposing of the case in 2008, whether we should still hold the
Government to the orders of 1990 and 1995 allotting the lands to the
Agriculture Department and to CRPF respectively. The Advocate
General stands by Ext.P8. If the Government does not need the land for
CRPF for the purpose of accommodating Rapid Action Force, which is
essentially a matter of exigency decided on the ground reality present at
the area, we do not think that we should overturn such a decision in the
purported exercise of power under public interest litigation.
O.P.16210/1997. 9
Having regard to the totality of facts, at this distance of
time, no relief need be granted to the petitioner and the writ petition is
dismissed.
Consequently C.M.P. No.29010 of 1997 is dismissed.
H.L.DATTU,
CHIEF JUSTICE
K.M. JOSEPH,
JUDGE
sb
O.P.16210/1997. 10
H.L. DATTU, C.J.
&
K.M.JOSEPH, J.
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O.P. No. 16210 OF 1997
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JUDGEMNT
17.10.2008.