{"id":73869,"date":"1998-08-19T00:00:00","date_gmt":"1998-08-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/unknown-vs-state-of-kerala-on-19-august-1998"},"modified":"2016-12-18T14:03:55","modified_gmt":"2016-12-18T08:33:55","slug":"unknown-vs-state-of-kerala-on-19-august-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/unknown-vs-state-of-kerala-on-19-august-1998","title":{"rendered":"Unknown vs State Of Kerala on 19 August, 1998"},"content":{"rendered":"
Kerala High Court<\/div>\n
Unknown vs State Of Kerala on 19 August, 1998<\/div>\n
       \n\n  \n\n  \n\n \n \n o creamy layer exists in the State of Kerala? The court proceeded to hold\n\nthat the creamy layer principle laid down in Indra Sawhney' case cannot be\n\nignored as was done by Section 6 of the Act. The court also held as\n\nfollows:\n\n                     \"If under the guise of elimination of the 'creamy\n\n       layer', the legislature makes a law which is not indeed a true\n\n       elimination but is seen by the court to be a mere cloak, then the\n\n       court will necessarily strike down such a law as violative of\n\n       principle of separation of powers and of Arts. 14, 16(1) and 16\n\n       (4).\"\n\nSection 6 contained a non obstante clause and sought to provide that\n\nnotwithstanding the judgment of any court interalia, the reservation of\n\nappointments pursuant to Rules 14 to 17 of Part II of the Kerala State And\n\nSubordinate Services Rules, 1958 was to be deemed to be validly made as\n\nif the Act in 1995, which was challenged was in force at all material times\n\nwhen such reservations have been made.         In the course of its judgment\n\nthe court held as follows:\n\n                     \"We may again point out that as a matter of law, it\n\n       is clear that six    out of nine Judges in Indra Sawhney made\n\nW.P.C.27272\/2006.                          9\n\n      a judicial declaration as stated under Point 1, as to the class of\n\n      persons who would belong to the creamy layer. This declaration\n\n      of law made by this court is clearly applicable to the State of\n\n      Kerala also.     The Kerala Legislature cannot, in our opinion\n\n      refuse to accept this declaration of law nor can it declare\n\n      anything to the contrary.\"\n\n      The court further held as follows:\n\n                    \"In the judgment of six learned Judges in Indra\n\n      Sawhney as stated earlier, there is a specific declaration of law\n\n      that the children of IAS, IPS and other All India Services in the\n\n      Backward Classes are creamy layer and this is true \"without\n\n      further inquiry.\" These persons are to be deemed, in law and, in\n\n      fact, to have reached such a level of social advancement that\n\n      they cease to belong to the Backward Class. The judgment also\n\n      refers to a classification of \"affluent\" sections identified by way of\n\n      income or property holding.\n\n           x x x x x x                                   x x x x x x\n\n             \"The non obstante clause in S.4 too cannot come to the\n\n      rescue of the State. As already stated, the said clause cannot\n\n      override the judgments of this Court based on Arts.14, 16(1) and\n\n      16(4) if the defect is not removed by the legislation. Neither\n\n      Parliament nor the State Legislature can make any law to\n\n      continue reservation to the creamy layer inasmuch as the above\n\n      judgments of this Court are based on Arts. 14 and 16(1) of the\n\n      Constitution of India, an no law can obviously be made to\n\n      override the provisions of Arts.14 and 16(1).\n\nW.P.C.27272\/2006.                        10\n\n              Thus, for the aforesaid reasons, S.4 of the Act along with\n\n      the non obstante clause is declared unconstitutional and\n\n      violative of the judgments of this Court and also violative of\n\n      Arts.14, 16(1) and 16(4) of the Constitution of India.\n\n              We then come to S.6 of the Act which deals with\n\n      retrospective validation. This section again starts with a non\n\n      obstante clause. Obviously, the Kerala Legislature is having\n\n      Indra Sawhney (AIR 1993 SC 477) and Ashok Kumar Thakur\n\n      (AIR 1996 SC 75) in its mind, when it inserted, the non obstante\n\n      clause. Once S.3 of the Act is held unconstitutional, the position\n\n      is that the legislative declaration as to non-existence of creamy\n\n      layer goes and the existence of creamy layer becomes a starting\n\n      reality.  That will mean that under the Act of 1995, the\n\n      Legislature has not eliminated the defect. Nor can S.4 in this\n\n      connection be of any help because that provision has also been\n\n      declared as unconstitutional.      Section 6 cannot stand alone\n\n      once Ss.3 and 4 are declared unconstitutional. As long as the\n\n      creamy layer is not excluded and the defect continues, any\n\n      validation - without elimination of the defect which is the basic\n\n      clause of unconstitutionality - is, as already stated, ineffective\n\n      and will be invalid. Thus S.6 is also unconstitutional.\"\n\nIn Cauvery Water Disputes Tribunal's Case (AIR 1992 SC 522) the Apex\n\nCourt pronounced      the Karnataka Cauvery Basin Irrigation Protection\n\nOrdinance as unconstitutional as it affected the jurisdiction of the Tribunal\n\nappointed under the Central Act, namely, the Inter-State Water Disputes\n\nAct, 1956, which legislation was traced to Article 262 of the Constitution.\n\nThe court found that the purport of the Ordinance was to nullify the interim\n\nW.P.C.27272\/2006.                        11\n\norder passed by the Tribunal.        Therein the court proceeded to hold as\n\nfollows:\n\n                    \"The Karnataka Ordinance 1991 is also against the\n\n      basic tenets of the rule of law inasmuch as the State of\n\n      Karnataka by issuing the Ordinance has sought to take law in its\n\n      own hand and to be above the law. Such an act is an invitation\n\n      to lawlessness and anarchy, inasmuch as the Ordinance is a\n\n      manifestation of a desire on the part of the State to be a judge\n\n      in its own cause and to defy the decisions of the judicial\n\n      authorities.  The action forebodes evil consequences to the\n\n      federal structure under the Constitution and opens doors for\n\n      each State to act in the way it desires disregarding not only the\n\n      rights of the other Sates, the orders passed by instrumentalities\n\n      constituted under an Act of Parliament but also the provisions of\n\n      the Constitution. The Ordinance if allowed to stand would lead\n\n      to the break down of the Constitutional mechanism and affect\n\n      the unity and integrity of the nation.\n\n              The legislature can change the basis on which a decision\n\n      is given by the Curt and thus change the law in general, which\n\n      will affect a class of persons and events at large. It cannot,\n\n      however, set aside an individual decision inter-parties and affect\n\n      their rights and liabilities alone. Such an act on the part of the\n\n      legislature amounts to exercising the judicial power of the Sate\n\n      and to functioning as an appellate court or Tribunal.\"\n\nThe decision in M.C.Mehta         v. Union of India<\/a> ((2006)7 SCC 456) is\n\nrendered only as an aftermath of the decision of the Apex Court in\n\nM.C.Mehta's Case ((2006) 3 SCC 399), which upheld the power of the\n\nW.P.C.27272\/2006.                        12\n\nMunicipal Corporation to seal premises in case of misuser and directed the\n\nsealing process to commence. Later the court had extended the time limit\n\nto stop misuser provided the persons filing an affidavit undertaking stopping\n\nof the misuse before 30.6.2006. The Delhi Laws (Special Provisions) Act\n\nwas enacted on 19.5.2006.        The ultimate question which arose was the\n\ncompetence of the legislature to extend the time granted by the Supreme\n\nCourt in the exercise of its law making power. In the said context, the court\n\nproceeded to hold as follows:\n\n              \"Definitely, the legislature would lack competence to\n\n       extend the time granted by the Supreme Court, in the purported\n\n       exercise of law-making power.          That would be virtually\n\n       exercising judicial functions. Such functions do not vest in the\n\n       legislature. In fact, those who gave undertakings are already in\n\n       breach of the undertakings by not stopping misuser by\n\n       30.6.2006. The dignity and authority of the Court has to be\n\n       protected not for any individual but for maintenance of the rule\n\n       of law. The fact that those who gave undertakings may have\n\n       been misled in view of the subsequent development can only be\n\n       a mitigating factor while considering the action to be taken for\n\n       breach of the undertakings. Further, there are no equities in\n\n       favour of those who gave undertakings to the Supreme Court\n\n       and obtained benefit of time. There is serious challenge to the\n\n       validity of the Act and the notification. Pending determination\n\n       thereof, such persons cannot be allowed to claim any benefit of\n\n       the notification.\"\n\nIt is pointed out that in the face of an unambiguous direction to evict the\n\nW.P.C.27272\/2006.                      13\n\nencroachers, it is not open to the legislature to make a law, be it as an\n\nOrdinance or a plenary legislation defying the court and setting at naught\n\nthe judgments of a court made in exercise of the judicial function of the\n\nState vested with the courts. Learned Amicus Curie contended that having\n\nregard to the fact that the land was reserved under Section 96(1A) of the\n\nKerala   Land Reforms Act, the same cannot be distributed under sub-\n\nsection (1) of Section 96.\n\n              6. Per contra, the learned Advocate General would contend\n\nthat the Ordinance and the law made were perfectly within the legislative\n\npowers. He would contend that it would not be open to the petitioner in\n\nW.P.27272 of 2006 to impugn the legislation. It is contended that all that\n\nthe State has done by way of the impugned legislation, is keeping in view\n\nthe fact that many of the persons who have encroached upon the land are\n\nactually landless agricultural labourers entitled to assignment, protected\n\ntheir possession pending the inquiry into their claims. Such a legislation, it\n\nis contended, cannot be treated as contrary to the judgments of this court.\n\nHe refers to Rule 30 of the Ceiling Rules. Rule 30 of the Kerala Land\n\nReforms (Ceiling) Rules, 1970 provides that the Land Board shall verify the\n\napplications and prepare a list of persons eligible under Section 96. Sub\n\nsection (2) provides that in preparing the list, the first preference will be\n\ngiven to the kudikidappukaran, if any, on the land. Thereafter, it is provided\n\nthat the preference indicated shall be as provided thereafter subject to the\n\nW.P.C.27272\/2006.                         14\n\nprovisions of sub-section (1) of Section 96 as far as practicable.        It is\n\nprovided that 'second preference' shall be given to the following among\n\nother persons:\n\n                (a) unauthorised occupants of the land, if any, provided they\n\nhave effected valuable improvements.\n\n                (b) persons evicted from Government land.\n\nIt is therefore contended that unauthorised occupants are under the rule\n\nentitled to the grant of assignment.      He would contend that it is in the\n\ncontext of the mammoth problem which was posed before it and the\n\ndifficulties in dealing with such an emergent situation, the State has chosen\n\nto pass the law in question. He relied on the decision of the Apex Court in\n\nVirender Singh Hooda v. State of Haryana ((2004) 12 SCC 588) to draw\n\nsupport for the proposition that the legislation in question is only to be\n\nupheld. He further contended for the position that the litigation itself is not\n\nmaintainable as a public interest litigation and in this connection he seeks to\n\ndraw support from the decision of the Apex court reported in Guruvayoor\n\nDevaswom Managing Committee v. C.K.Rajan ((2003) 7 SCC 546).\n\nTherein the Apex Court proceeded to delineate the principles evolved by the\n\ncourt for the exercise of powers under Article 226 of the Constitution in\n\nmatters relating to public interest. The learned Advocate General would\n\ncontend that the case at hand would not fall within any of those criteria laid\n\ndown.\n\nW.P.C.27272\/2006.                       15\n\n              7. By order in C.M.P. 23444 of 1997 in O.P. 13111 of 1997 a\n\nlearned Single Judge of this court on 13.7.1998 directed the District\n\nCollector, Kozhikode, the Taluk Land Board and the State of Kerala to take\n\nback into the possession of the State the land obtained surrender of\n\npursuant to the order of the Taluk Land Board. This was a writ petition filed\n\nby the Malabar Products and Rubber Company Limited, in which the\n\npetitioner was the shareholder. An appeal was carried by respondents 1 to<\/pre>\n
4, who were directed to take back possession as W.A. 1619 of 1998. The<\/p>\n
writ appeal and O.P.13111 of 1997 came to be heard together by the<\/p>\n
Division Bench and by judgment dated 19.8.1998 the Division Bench<\/p>\n
allowed the appeal and set aside the order passed in C.M.P. No. 2344 of<\/p>\n
1997. The Original Petition was allowed and in place of the direction to take<\/p>\n
back possession of the land, the Land Board and the Taluk Land Board<\/p>\n
were directed to demarcate the area surrendered by the petitioner<\/p>\n
Company. The Division Bench noted the lack of objection for demarcating<\/p>\n
the area surrendered by the declarant. The Division Bench reasoned that<\/p>\n
the petitioner had actually prayed for demarcation of the area surrendered<\/p>\n
by them so that he may prevent persons from encroaching upon the rest of<\/p>\n
the land. By Ext.P4 dated 6th November, 1995 the learned Single Judge<\/p>\n
had rejected the claim of the petitioners, who were found to have asserted<\/p>\n
that they have illegally taken possession of the land and such persons were<\/p>\n
held not entitled to discretionary jurisdiction under Article 226 of the<\/p>\n
W.P.C.27272\/2006.                        16<\/span><\/p>\n
Constitution of India and therefore the Original Petition praying for the<\/p>\n
following reliefs was dismissed.\n<\/p>\n
              “to call for the entire records leading to Exts.P1 top P5<\/p>\n
       and to issue a writ of certiorari quashing Exts.P1 and P2 and<\/p>\n
       any proceedings to assign the land for any other purpose than<\/p>\n
       assigning the same to landless persons;\n<\/p><\/blockquote>\n
              to declare that the land vested with the Government in<\/p>\n
       the Taluk Land Board proceedings No.TLB(K) 19\/73 dated<\/p>\n
       31.1.1976 cannot be assigned to nay other body or organisation<\/p>\n
       without the reservation of the same by the Taluk Land Board;<\/p>\n<\/blockquote>\n
              to declare that the petitioners are entitled to for<\/p>\n
       assignment of the land in Sy.Nos.93,86\/2, 86\/1 and 6\/1 in<\/p>\n
       Raroth village in Kozhikode Taluk in accordance with the Kerala<\/p>\n
       Land Reforms Act and Ceiling Rules;\n<\/p><\/blockquote>\n
              to issue a writ of prohibition prohibiting and restraining<\/p>\n
       the respondents from taking any coersive steps to evict the<\/p>\n
       petitioners and similar persons from the land from their<\/p>\n
       possession and enjoyment without the procedure prescribed by<\/p>\n
       law.”\n<\/p><\/blockquote>\n
By Ext.P5 order the Division Bench dismissed the appeal filed           against<\/p>\n
Ext.P4 as withdrawn. However, by Ext.P8, which is dated 18th March, 1997<\/p>\n
in O.P. 13326 of 1996, which is a writ petition filed by the petitioner himself,<\/p>\n
a learned Single Judge, taking note of the order passed in O.P. 19877 of<\/p>\n
1996 and the decision of the Division Bench in W.A. 13 of 1996 besides<\/p>\n
paragraphs 5 and 6 of the statement of the Government in O.P. 19877 of<\/p>\n
1996 directed the Government to take effective steps for removing the<\/p>\n
W.P.C.27272\/2006.                       17<\/span><\/p>\n
encroachers and directed to take urgent steps for allotting the land for<\/p>\n
public purposes as intended so as to prevent further encroachment. This<\/p>\n
judgment came to be confirmed by Ext.P9 in W.A. 2634 of 1998 dated<\/p>\n
22.11.2000. That was an appeal carried by the State of Kerala, the District<\/p>\n
Collector, Kozhikode, the Tahsildar, Taluk Office, Kozhikode and the Land<\/p>\n
Board. There the court reiterated the obligation on the part of the State and<\/p>\n
others to remove the encroachers from the land. In Ext.P9 judgment the<\/p>\n
court held as follows:\n<\/p>\n
              “Here, under Section 98 of the Act, the land had to be<\/p>\n
      protected until its assignment or until its being handed over to<\/p>\n
      the concerned public authority in terms of order Ext.P2. There<\/p>\n
      is therefore a clear obligation on the applicants to remove the<\/p>\n
      encroachers from the land.”\n<\/p><\/blockquote>\n
 Ext.P10 is the judgment in O.P. 19877 of 1996 which also was disposed of<\/p>\n
taking note of paragraphs 5 and 6 as already noted that the Government<\/p>\n
has taken effective steps and criminal proceedings against the encroachers<\/p>\n
and they are implementing the directions in W.A. 13 of 1996. Noting that a<\/p>\n
mere statement is not enough, the learned Single Judge has directed that<\/p>\n
the Government should see that the encroachers are ousted from the land.<\/p>\n
Ext.P10 is dated 5.3.1997.      It is thereafter that Ext.P11 judgment was<\/p>\n
pronounced in O.P.3366 of 2002 at the instance of persons who sought for<\/p>\n
a direction to assign the land in question to the occupants under Section 96<\/p>\n
W.P.C.27272\/2006.                         18<\/span><\/p>\n
of the Land Reforms Act and to refrain from evicting them. Taking notice of<\/p>\n
the judgment in O.P.19877 of 1996 and the contempt of court case, which<\/p>\n
is pending therein and the binding nature of the judgment, it was observed<\/p>\n
that the prayers sought were to be declined and it was observed that the<\/p>\n
petitioners therein or anybodyelse, if aggrieved to take up the matter in a<\/p>\n
properly constituted appeal. It is thereafter that the observations have been<\/p>\n
made, namely, that if the petitioners have got a case that they are entitled to<\/p>\n
assignment, it is for them to approach the appropriate authorities in<\/p>\n
accordance with law and seek their remedies, if their applications to that<\/p>\n
effect are rejected by the appropriate authorities.Ext.P12 is an affidavit in<\/p>\n
the suo motu contempt filed by the Chief Secretary. In Ext.P12 affidavit,<\/p>\n
which is dated 24th June, 2006, it is inter alia stated as follows:<\/p>\n
              “Several O.Ps and Writ Appeals were filed before this<\/p>\n
       Hon’ble Court in this case and the last one in the series was<\/p>\n
       O.P. No.3366 of 2002 filed by Shri.C.K. Nanu MLA and 10<\/p>\n
       others. This Hon’ble Court on 30.01.2002 ordered stay of the<\/p>\n
       eviction of the encroachers. On 8.2.2006 this Hon’ble Court<\/p>\n
       dismissed O.P. No.3366 of 2002 with the observation that if the<\/p>\n
       petitioners have got a case that they are entitled to assignment<\/p>\n
       of the land encroached upon, it is for them to approach the<\/p>\n
       appropriate authorities in accordance with the law and seek<\/p>\n
       their remedies if their applications to that effect are rejected by<\/p>\n
       the appropriate authorities.         On enquiry some of the<\/p>\n
       encroachers are found eligible for land assignment.<\/p>\n<\/blockquote>\n
              The present Government have only taken charge about<\/p>\n
W.P.C.27272\/2006.                        19<\/span><\/p>\n
        one month back and have not received enough time to study the<\/p>\n
        whole case in depth. In view of the direction of this Hon’ble<\/p>\n
        Court in judgment dated 08.02.2006 in O.P. No.3366\/02 and the<\/p>\n
        fact that Government have to consider the genuine claims of the<\/p>\n
        encroachers, whether they are really eligible people for<\/p>\n
        assignment, it will create great hardship to them if they are<\/p>\n
        evicted now.\n<\/p><\/blockquote>\n
                Therefore, Government proposes to examine the claims<\/p>\n
        and grievances of the settlers and some more time is necessary<\/p>\n
        for the present Government, to study the issues involved.<\/p>\n
        Therefore six months time may kindly be granted to complete<\/p>\n
        the process accordingly.”\n<\/p><\/blockquote>\n
Still later, by Ext.P13 order dated 27.6.2006 the Division Bench clarified that<\/p>\n
even if it is assumed that there is some obscurity in the matter, none of the<\/p>\n
trespassers have right, title or interest. It is also stated that so far as the<\/p>\n
stand of the Government reflected in Ext.P12 affidavit that the trespassers<\/p>\n
have some right under Section 96 of the Kerala Land Reforms Act is<\/p>\n
concerned, the same is patently incorrect in view of the earlier decisions of<\/p>\n
the Division Bench and in particular the decision rendered by the Division<\/p>\n
Bench of this court in O.P. 3366 of 2002, where the claim made by them<\/p>\n
based on Section 96 of the Land Reforms Act was specifically rejected.<\/p>\n
The matter came to be listed on 31.7.2006 apparently in the hope that the<\/p>\n
State may even now take steps to comply with the orders which have<\/p>\n
become final. It is thereafter that the impugned legislation initially in the<\/p>\n
form of Ordinance and still later as plenary legislation followed.<\/p>\n
W.P.C.27272\/2006.                        20<\/span><\/p>\n
              7A. We would think that there is merit in the contentions of<\/p>\n
the petitioner. The judicial power of the State is vested in the judicial organ.<\/p>\n
The chief function of the court is to decide the lis between the parties. Its<\/p>\n
decision is clothed with finality as far as the parties are concerned unless<\/p>\n
the same is reversed by itself or a          superior forum in     appropriate<\/p>\n
proceedings. One of the parties be it the State itself, the State is bound to<\/p>\n
act in terms of the decision. Neither by an executive fiat nor by a legislative<\/p>\n
device can a State wedded to the rule of law claim the right to set at naught<\/p>\n
a judicial pronouncement by merely saying that notwithstanding the<\/p>\n
judgment, what is to be done is as stated in the executive fiat or the<\/p>\n
legislative instrument. It ill-behoves an organ of the State to intrude into<\/p>\n
the judicial power vested with the courts. Undoubtedly it is open to the<\/p>\n
State to make law, by which it removes the very foundation of the judgment<\/p>\n
and provide for the resultant position such as it is advised to do.<\/p>\n
              8. In the facts of this case, we are at a loss as to how it is<\/p>\n
open to the State to contend that the basis of the judgments directing the<\/p>\n
encroachers to be removed was in any manner changed. Therefore it is not<\/p>\n
open to the State to contend that the Ordinance or the Act which are called<\/p>\n
in question must pass muster.       Having gone through Exts.P11 and P13,<\/p>\n
we are persuaded to think that it is not open to the respondents to justify the<\/p>\n
impugned acts of legislation by referring to the observations contained<\/p>\n
therein. The State had in the statement made its stand clear namely that<\/p>\n
W.P.C.27272\/2006.                        21<\/span><\/p>\n
there was encroachment and they were attempting to remove the<\/p>\n
encroachment.\n<\/p>\n
              9. There were judgments of this court directing the removal of<\/p>\n
the encroachment. It is in the teeth of these circumstances that we must<\/p>\n
appreciate the validity of the legislative acts.    The effect of both the<\/p>\n
Ordinance and the Act is to defeat and to set at naught the directions.<\/p>\n
These legislative exercises are without the support of any material taking<\/p>\n
away the basis of the judgments referred to.     We are of the view that the<\/p>\n
learned Advocate General cannot derive any support from the decision<\/p>\n
reported in Virender Singh Hooda’s Case (Supra).            That was a case<\/p>\n
where the court took the view that the basis of any judgment can be<\/p>\n
removed as far as the constitution is not contravened and judicial power is<\/p>\n
not usurped, the Circulars which were apparently the basis of the decisions<\/p>\n
of the Apex Court in Virender S. Hooda’s Case ((1999)3 SCC 696) and<\/p>\n
Sandeep Singh’s Case ((2002) 10 SCC 549) were apparently removed by<\/p>\n
the legislature by repealing the Circulars. It was in this factual context that<\/p>\n
the court had to consider and lay down principles about efficacy of<\/p>\n
enactment having retrospective operation as it was not a case of usurpation<\/p>\n
of judicial power. The court held as follows:\n<\/p>\n
                    “It is equally well settled that the legislature<\/p>\n
       cannot by a bare declaration, without anything more, directly<\/p>\n
       overrule, reverse or override a judicial decision; it may, at any<\/p>\n
       time in exercise of the plenary power conferred on it by the<\/p>\n
W.P.C.27272\/2006.                         22<\/span><\/p>\n
        Constitution render a judicial decision ineffective by enacting a<\/p>\n
        valid law on a topic within its legislative field, fundamentally<\/p>\n
        altering or changing with retrospective, curative or neutralising<\/p>\n
        effect the conditions on which such decision is based.”<\/p>\n<\/blockquote>\n
It is to be noticed that in this case we are unable to see how the basis of the<\/p>\n
directions of this court could be said to have been removed by the State. In<\/p>\n
such circumstances, we are of the view that the legislative effort has to be<\/p>\n
held to fall foul of the fundamental postulate that the State cannot be<\/p>\n
permitted to overrule or negate a judicial pronouncement in the purported<\/p>\n
exercise of its legislative powers.\n<\/p>\n
                10. No doubt the learned Advocate General contended that it<\/p>\n
was not open to the Division Bench to have clarified or to make the<\/p>\n
observations in Ext.P13.       He has relied on the following decisions and<\/p>\n
contended that when a case is decided in contempt jurisdiction, the court<\/p>\n
does not sit in judgment over the correctness of the judgment, the violation<\/p>\n
of which is complained of and it is quite outside the jurisdiction of the court<\/p>\n
to give any direction or to otherwise pronounce upon the correctness of the<\/p>\n
judgment in question.( See the decisions reported in Director of<\/p>\n
Education, Uttaranchal v. Ved Prakash Joshi ((2005) 6 SCC 98) and in<\/p>\n
State of Bihar and Others v. Rajendra Singh and Another (JT 2004(8)<\/p>\n
SC 168). Learned Advocate General would contend that the legislation was<\/p>\n
fully justified having regard to the observations made in O.P.3366 of 2002,<\/p>\n
which we have already referred to.\n<\/p>\n
W.P.C.27272\/2006.                         23<\/span><\/p>\n
               11. We are afraid that the stand of the State to encroachers<\/p>\n
betrays a disregard of the roles assigned to the three organs of the State<\/p>\n
under our Constitutional scheme of things. While it may be open to the<\/p>\n
State by a validating act to remove the foundation for the judgment and to<\/p>\n
give retrospectivity to take away the effect of a judgment, it is not open to<\/p>\n
the Sate to simply disregard a declaration or direction given by a competent<\/p>\n
court. We notice that the judgment of the learned Single Judge in Ext.P8<\/p>\n
was confirmed by a Division Bench in Ext.P9. The said judgment is in the<\/p>\n
year 2000.     There is a positive direction by this court, which has become<\/p>\n
final, to evict the encroachers. This is in a       Writ Petition filed by the<\/p>\n
petitioner.   It is in the teeth of this judicial pronouncement, which had<\/p>\n
become final and the State, which is a party to the proceedings has yet<\/p>\n
proceeded to invoke its legislative power and say that they will not evict<\/p>\n
them and instead the eviction will be stayed. We are of the opinion that this<\/p>\n
stand, which is reflected in Section 3 is absolutely violative of the<\/p>\n
fundamental tenet of the rule of law and can be premised only on the<\/p>\n
overreaching of the powers vested in the State in its legislative capacity.<\/p>\n
The State did not chose to impugn Ext.P13 before an appropriate forum. In<\/p>\n
fact in the contempt of court case, rejecting the stand reflected in Ext.P10<\/p>\n
affidavit of the Chief Secretary, this court had expressed its view against the<\/p>\n
same and provided an opportunity to the State to act in conformity with the<\/p>\n
judgments.\n<\/p>\n
W.P.C.27272\/2006.                         24<\/span><\/p>\n
              12.   In such circumstances, we are inclined to partly allow<\/p>\n
W.P.(C)27272 of 2006 and we declare that Ext.P14(d) Act providing for<\/p>\n
stay of eviction in Section 2 thereof is invalid.<\/p>\n
              We record our appreciation for the efforts taken by Amicus<\/p>\n
Curiae Sri.M.S. Narayanan.\n<\/p>\n<\/p>\n
                                                       H.L. DATTU,
\n                                                    CHIEF JUSTICE<\/p>\n
                                                      K.M. JOSEPH,
\n                                                         JUDGE<\/p>\n
sb.\n<\/p>\n
\n? IN THE HIGH COURT OF KERALA AT ERNAKULAM<\/p>\n
OP.No. 16210 of 1997(D)<\/p>\n
1. FR.GEORGE PULIKUTHIYIL CMI
\n                      …  Petitioner<\/p>\n
                        Vs<\/p>\n
1. STATE OF KERALA
\n                       …       Respondent<\/p>\n
                For Petitioner  :SRI.K.RAMAKUMAR (SR.)<\/p>\n
                For Respondent  :ADVOCATE GENERAL<\/p>\n
The Hon’ble the Chief Justice MR.H.L.DATTU
\nThe Hon’ble MR. Justice K.M.JOSEPH<\/p>\n
 Dated :17\/10\/2008<\/p>\n
 O R D E R
\n                   H.L.DATTU, C.J. & K.M.JOSEPH, J.\n<\/p>\n
                   – – – – – – – – – – – – – – – – – – – – – – – – – – – – –\n<\/p>\n
                             O.P. No. 16210 of 1997\n<\/p>\n
                   – – – – – – – – – – – – – – – – – – – – – – – – – – – – –\n<\/p>\n
                   Dated this the 17th day of October, 2008<\/p>\n
                                     JUDGMENT<\/p>\n
K.M.JOSEPH, J.\n<\/p>\n
             Petitioner claims to be the Secretary of a Society, which is<\/p>\n
said to conduct Seminars, legal awareness programmes, legal<\/p>\n
education, out of court settlement of disputes etc., and its main object is<\/p>\n
to make the people aware of civil rights. The Original Petition is filed<\/p>\n
purporting to be in public interest.\n<\/p>\n
             2. The case of the petitioner in brief is as follows:<\/p>\n
             Petitioner approached this court by filing O.P.19877 of<\/p>\n
1996 for evicting encroachers from Government land set apart for the<\/p>\n
setting up of a CRPF Camp and a battalion of Rapid Action Force.<\/p>\n
Ext.P1 is the judgment therein. By Ext.P1 judgment dated 5.3.1997 a<\/p>\n
learned Single Judge of this court taking note of the contention that<\/p>\n
even though police picket was put up, it was admitted in the statement<\/p>\n
that there are encroachments and the Government is not taking effective<\/p>\n
steps and that this is a sorry state of affairs and earlier encroachers have<\/p>\n
already been evicted and subsequently a mass trespass took place and<\/p>\n
O.P.16210\/1997.                       2<\/span><\/p>\n
those occupants are now put up in the land and further referring to the<\/p>\n
further statement that they are taking effective steps and criminal<\/p>\n
proceedings are     being taken against the encroachers and they are<\/p>\n
implementing the directions in W.A. 13 of 1996, it was ordered that the<\/p>\n
Government should see that the encroachers are ousted from the<\/p>\n
Government land. It is further case of the petitioner that by order<\/p>\n
dated 10.4.1997 in C.M.P. No.11937 of 1997 in O.P. No.19877 of<\/p>\n
1996 this court had directed the second respondent to comply with the<\/p>\n
directions in the judgment on or before 30.6.1997. However, by the<\/p>\n
impugned order, namely, Ext.P8, the earlier order transferring the land<\/p>\n
to the Agriculture Department and to the CRPF were cancelled. It is<\/p>\n
stated to be issued with malafide intention.\n<\/p>\n
             3. Proceedings were initiated by the Taluk Board against<\/p>\n
M\/s. Malabar Produce and Rubber Company Limited (hereinafter<\/p>\n
referred to as ‘the Company’) under the Land Reforms Act. An extent<\/p>\n
of 126.01 and half acres of land was directed to be surrendered. The<\/p>\n
Company surrendered the surplus land.         Third respondent took<\/p>\n
possession of the land on 7.4.1989. By Ext.P3, the Secretary, Land<\/p>\n
Board reserved for public purpose an extent of 185 acres for<\/p>\n
O.P.16210\/1997.                         3<\/span><\/p>\n
establishing a progeny orchard. Subsequently, by Ext.P4 order dated<\/p>\n
19.8.1995 Government sanctioned transfer of 96.5 acres of land from<\/p>\n
the surplus land available in R.S. No.2,86\/1 and 86\/2 of Raroth Village,<\/p>\n
Kozhikode to the Central Reserve Police Force for accommodating the<\/p>\n
Rapid Action Force Battalion sanctioned for the Kerala State. It is<\/p>\n
stated that the said land came to be encroached by a group of persons,<\/p>\n
who belong to different political parties including the ruling party. The<\/p>\n
encroachment commenced during the period preceding the General<\/p>\n
Elections, 1996 and it is being carried on massively with the aid and<\/p>\n
connivance of respondents 1 to 6. It is the case of the petitioner that<\/p>\n
Rule 32 of      Land Reforms (Ceiling) Rules prohibits any kind of<\/p>\n
assignment of land when it is reserved for any public purpose. The<\/p>\n
second respondent is stated to be the custodian of surplus land and he is<\/p>\n
duty bound to preserve and protect the Government land. Valuable<\/p>\n
trees are cut and removed with the connivance of revenue and forest<\/p>\n
officers. Petitioner relies on Exts.P5 and P6, which are copies of news<\/p>\n
reports in the Indian Express dated 29.11.1995 and 22.12.1995. Ext.P7<\/p>\n
is an affidavit filed by the first petitioner in O.P. No. 19328 of 1995.<\/p>\n
That was a writ petition filed earlier against encroachment. However,<\/p>\n
O.P.16210\/1997.                        4<\/span><\/p>\n
Ext.P7 affidavit is produced to show that though an interim order has<\/p>\n
been passed in the writ petition against the encroachment, the<\/p>\n
petitioners therein were threatened from different corners and they<\/p>\n
decided not to prosecute the petition. It was while so that Ext.P8 order<\/p>\n
came to be passed. Ext.P8 order is dated 31.3.1997. Therein, it is inter<\/p>\n
alia stated as follows:\n<\/p>\n
                    “Government find that it is necessary to<\/p>\n
       cancel the orders issued in G.O.(Rt)695\/90\/RD dated<\/p>\n
       12.3.90    and   G.O.(MS)      408\/95\/FD   dated   19.8.95<\/p>\n
       transferring  the said     surplus  land   to  Agriculture<\/p>\n
       Department and CRPF respectively.        Government are<\/p>\n
       therefore pleased to order that G.O.(Rt) 695\/90\/RD dated<\/p>\n
       12.3.90    and   G.O.(MS)     408\/95\/RD    dated   19.8.95<\/p>\n
       transferring the surplus land in Thamarassery Panchayat of<\/p>\n
       Raroth Village, Kozhikode to Agriculture Department and<\/p>\n
       CRPF respectively are hereby cancelled.”<\/p>\n<\/blockquote>\n
             4. The prayers in the Original Petition are to quash Ext.P8<\/p>\n
and to restrain State of Kerala from implementing Ext.P8 and to protect<\/p>\n
the fundamental rights of the citizens.<\/p><\/blockquote>\n
O.P.16210\/1997.                        5<\/span><\/p>\n
             5.   We heard learned Senior counsel for the petitioner<\/p>\n
Sri.K.Ramakumar and the learned Advocate General.<\/p>\n
             6. Sri.K. Ramakumar placed reliance on the decision of the<\/p>\n
Apex Court reported in M.C. Mehta v. Union of India<\/a> ((2006) 7 SCC<\/p>\n
456. He also relied on the decision of the Apex Court reported in<\/p>\n
Cauvery Water Disputes Tribunal’s Case (AIR 1992 SC 522).<\/p>\n
             7. In Cauvery Water Disputes Tribunal’s Case, the<\/p>\n
Apex Court pronounced the Karnataka Cauvery Basin Irrigation<\/p>\n
Protection Ordinance as unconstitutional. The court took the view that<\/p>\n
the Ordinance had the effect of nullifying the order passed by the<\/p>\n
Tribunal and it is not open to the legislature to make inroad into the<\/p>\n
independence of the body discharging judicial functions. In<\/p>\n
M.C.Mehta’s Case also the Apex Court frowned upon the attempt to<\/p>\n
dilute the efficacy of the orders passed by the court.<\/p>\n
             8. In this case there is no doubt that the lands in question<\/p>\n
are lands which were vested with the Government. Section 96 of the<\/p>\n
Kerala Land Reforms Act provides for distribution of the land among<\/p>\n
the categories of persons, who are mentioned therein. Government has<\/p>\n
made the Ceiling Rules also to facilitate the distribution of the lands.<\/p>\n
O.P.16210\/1997.                       6<\/span><\/p>\n
Under Section 96 of the Kerala Land Reforms Act, it is open to the<\/p>\n
Land Board to reserve any land for any public purpose. Obviously,<\/p>\n
such lands, which are reserved for public purpose by the Land Board<\/p>\n
cannot be subject matter of assignment. This is clear from Rule 32 of<\/p>\n
the Land Reforms (Ceiling) Rules.\n<\/p>\n
             9. According to the petitioner, there is no reason given in<\/p>\n
Ext.P8 for cancelling the earlier orders. It is also the case of the<\/p>\n
petitioner that Ext.P8 constitute an attempt to overreach the powers of<\/p>\n
this court.\n<\/p>\n
             10. Learned Advocate General argued that it is within the<\/p>\n
powers of the Government to cancel the orders having regard to the<\/p>\n
facts present.\n<\/p>\n
             11. In Ext.P8 reference is made to Government Order<\/p>\n
dated 12.3.1990. That was an order apparently implementing Ext.P3<\/p>\n
order and an extent of 110.014 acres of surplus land, reserved for public<\/p>\n
purpose was ordered to be allotted to Agriculture Department.<\/p>\n
However it is stated that the Department did not take possession of the<\/p>\n
land. Thereafter reference is made to the requisition by the CRPF<\/p>\n
O.P.16210\/1997.                        7<\/span><\/p>\n
authorities for accommodating a battalion of the Rapid Action Force. It<\/p>\n
is thereafter that reference is made to the letter dated 13.12.1995 that<\/p>\n
the land is occupied by encroachers and the land transfer is not possible<\/p>\n
without evicting the encroachers and requiring a huge police force.<\/p>\n
Reference is made to the further direction in O.P.4023 of 1996 to take<\/p>\n
action to evict the encroachers.     Further, reference is made to the<\/p>\n
judgment in O.P.1703 of 1996, wherein the court had inter alia ordered<\/p>\n
that the encroachment is to be averted and if the Government does not<\/p>\n
want the land for the purpose, it shall be assigned to the landless<\/p>\n
persons in terms of the Land Reforms Act or Land Assignment Act,<\/p>\n
without giving any weightage to the encroachers. Further, reference is<\/p>\n
also made to the interim order in O.P.13326 of 1996 not to assign the<\/p>\n
lands. Thereafter stating that it is necessary to cancel the orders dated<\/p>\n
12.3.1990 and 19.8.1995, the Government cancelled the same.<\/p>\n
              12. In Ext.P4, no doubt reference is made in paragraph 2,<\/p>\n
to the letter read as second paper. Thereunder it would appear that the<\/p>\n
Land Board has suggested to set apart the land for public purpose so as<\/p>\n
to transfer it to the Ministry of Home Affairs.\n<\/p>\n
O.P.16210\/1997.                       8<\/span><\/p>\n
             13. Ext.P8 is essentially an administrative order. We do<\/p>\n
not think that it may be open to the petitioner to challenge the validity<\/p>\n
of Ext.P8 for the reason that reasons are not stated in Ext.P8.<\/p>\n
Undoubtedly, every action of the State must be fair. In this case,<\/p>\n
obviously the State felt that on the one hand Agriculture Department<\/p>\n
did not take over the land pursuant to the order earmarking it to the<\/p>\n
Agriculture Department, and on the other hand it had a problem of<\/p>\n
removing encroachers.      It embodies a policy decision to cancel the<\/p>\n
orders. At any rate proceeding on the basis that there is a legal hurdle<\/p>\n
of the power of the Government in the matter in view of Section 96<\/p>\n
(1A), we must pose ourselves to the question when we are finally<\/p>\n
disposing of the case in 2008, whether we should still hold the<\/p>\n
Government to the orders of 1990 and 1995 allotting the lands to the<\/p>\n
Agriculture Department and to CRPF respectively.          The Advocate<\/p>\n
General stands by Ext.P8. If the Government does not need the land for<\/p>\n
CRPF for the purpose of accommodating Rapid Action Force, which is<\/p>\n
essentially a matter of exigency decided on the ground reality present at<\/p>\n
the area, we do not think that we should overturn such a decision in the<\/p>\n
purported exercise of power under public interest litigation.<\/p>\n
O.P.16210\/1997.                      9<\/span><\/p>\n
             Having regard to the totality of facts, at this distance of<\/p>\n
time, no relief need be granted to the petitioner and the writ petition is<\/p>\n
dismissed.\n<\/p>\n
             Consequently C.M.P. No.29010 of 1997 is dismissed.<\/p>\n
                                               H.L.DATTU,
\n                                              CHIEF JUSTICE<\/p>\n
                                              K.M. JOSEPH,
\n                                                  JUDGE
\nsb<\/p>\n
O.P.16210\/1997.    10<\/p>\n
                            H.L. DATTU, C.J.\n<\/p>\n
                                     &
\n                             K.M.JOSEPH, J.\n<\/p>\n
                        ———————————\n<\/p>\n
                         O.P. No. 16210 OF 1997\n<\/p>\n
                        ———————————\n<\/p>\n<\/p>\n
                            JUDGEMNT<\/p>\n
                              17.10.2008.\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Unknown vs State Of Kerala on 19 August, 1998 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-73869","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nUnknown vs State Of Kerala on 19 August, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/unknown-vs-state-of-kerala-on-19-august-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Unknown vs State Of Kerala on 19 August, 1998 - 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