CHACKO KUNCHERIA Vs. GOVERNMENT OF T C

JUDGEMENT

(1.) The petition is filed by one Chacko Kuncheria, under S.18(2) of the High Court Act and Art.226 and 238 of the Constitution of India. His complaint relates to 129 acres of paddy lands in the north west of D block in Puthanarayiram in Pulinkunnu Pakuthy. He stated that he was in exclusive possession of the said plot as lessee and cultivated the area in 1124 and 1125. He had also improved the property at great cost during this period. After the harvest in 1125 he was stated to have started preliminary agricultural operations for the cultivation of the property in 1126 as he was entitled to continue in possession under Act VIII of 1950. The 1st counter petitioner in this case is the State. The 2nd counter petitioner is the Punja Special Officer appointed to arrange for the cultivation of Kayal paddy lands in Ambalapuzha Taluk. The 3rd counter petitioner is the person who had been now entrusted with the cultivation of the said 129 acres. It was the petitioner's case that the 2nd counter petitioner had attempted a new lease arrangement by auction for the cultivation of this property during the year 1126. The petitioner had protested against the attempt of the 2nd counter petitioner, but ignoring the same he proceeded to auction the right to cultivate this land and confirmed the bid in favour of one Thomman Mathan. This procedure adopted by the 2nd counter petitioner was against the statutory right vested in the petitioner under the provisions of Act VIII of 1950, and so without surrendering possession of the property he had proceeded with the agricultural operations for the cultivation in 1126. Thomman attempted to obstruct the same and so the petitioner was forced to file O.S. 325 of 1950 before the Principal Munsiff's Court, Alleppey on 5.4.1950 against Mathan for restraining him by an injunction from entering upon the property. An interim order of injunction had been passed on 23.5.1950. The Second counter petitioner had been informed of these proceedings and in order to circumvent the same he induced the State to requisition the land under S.4 of the Travancore Cochin Public Safety Measures Act V of 1950. The State thereupon passed an order on 20.9.1950, copy of which was Ext. H. Pursuant to the authority conferred on the 2nd counter petitioner by the order of requisition, the latter issued Ext. G permit to the 3rd counter petitioner to cultivate the land. The order of requisition as well as the permit issued by the 2nd counter petitioner were illegal and ultra vires, for the grounds stated in the order of requisition did not exist to the knowledge of the counter petitioners, and as such the 1st counter petitioner had no jurisdiction to requisition the property.

(2.) The order of requisition in so far as it infringed the right of the petitioner under Act VIII of 1950 to continue in undisturbed possession of his leasehold right to the property was illegal and ultra vires. When the right in respect of the property was the subject matter of dispute in O.S. 325 of 1950 of the Alleppey Munsiff's Court, and when the temporary orders of injunction had been issued by the said court, the order of requisition was stated to be an abuse of the privilege conferred on the 1st counter petitioner under Act V of 1950. The petitioner also contended that the requisition order was an infringement of the fundamental rights of the citizens guaranteed by Art.31 of the Constitution of India, as well as under S.5 of Act V of 1950, as there was no provision in the order to enquire into the question of compensation to which the petitioner would become entitled. Even the order of requisition had directed the 2nd counter petitioner to enquire into the willingness or ability of persons legally entitled to be in possession to continue the cultivation operations. But ignoring this the 2nd counter petitioner arranged for the cultivation through private negotiations. This amounted to a wrong assumption of the power conferred on him by the requisition order. The order of requisition by Government and the permit issued by the 2nd counter petitioner to the 3rd counter petitioner were therefore liable to be quashed and the petition was for this purpose.

(3.) The 2nd counter petitioner on his behalf and on behalf on behalf of the 1st counter petitioner had filed an affidavit denying mainly the contentions of the petitioner. It was admitted that for the cultivation of this property in 1124 the petitioner purchased the lease hold right from the Punja Special Officer in open auction held on 18.8.1123. As per the terms of this auction the petitioner surrendered his possession as soon as the Kumbhom crop of 1124 was harvested by him. Thereupon on 15.8.1124, the 2nd counter petitioner auctioned the right to cultivate the plaint property for 1125, and it was bid by one Chacko Job who was none other than the petitioner's brother. The petitioner had not been allowed to participate in this auction since he had defaulted the payment of the dues to the owners in 1124. The allegation that he cultivated the area in 1125 and that he effected improvements in the property were absolutely false. The petitioner had no right to enter upon the property or to start preliminary operations for the cultivation of 1126. The lease for all the Oodukur Punja lands would be auctioned from year to year on the application of the owners. After the harvest of 1125 was over the lessee Job as per the terms of the lease surrendered possession of the property. As usual, the 2nd counter petitioner conducted the auction of the lease hold right to cultivate the area for the year 1126 on 25.3.1950 and Thomman Mathan mentioned in the petition was the highest bidder. In the auction conducted then the petitioner and his brother Job participated, but they were not successful in bidding it. Both of them had signed the auction diary. It was wrong to say that the petitioner had the right to possess the property under the provisions of Act VIII of 1950. Thomman started agricultural operations, but the petitioner forcibly trespassing into the property and caused obstruction. Thereupon Thomman Mathan presented two petitions before the 2nd counter petitioner and they were forwarded to Pulinkunnu Police for necessary action. The police had warned the petitioner not to disturb the peaceful possession of the lessee Thomman Mathan. Thereupon, the petitioner as a last resort, filed O.S. 325 of 1950 in the Munsiff's Court of Alleppey and obtained an ex parte order of interim injunction. This order would not bind the property and the State. The allegation that the petitioner protested against the auction in 1125 was not correct. There was a joint petition signed by some of the cultivators in the year 1125 praying that the auction should not be held for 1126 cultivation and that the cultivators of 1125 should be allowed to cultivate at the old rate of pattom. The owners of the property were not agreeable to this and so the 2nd counter petitioner had to conduct the auction. It was the duty of the Punja Special Officer to see that the entire area of paddy fields was cultivated at the proper time and in the proper manner to the best interest of the State and Public. He had therefore moved the Government for requisitioning this property and leasing it out afresh as the preliminary agricultural operations had to be commenced immediately. Owing to the dispute between the petitioner and the lessee Thomman Mathan nobody was able to start cultivation, and so he apprehended that an extensive area of 2400 acres of paddy fields in the C and D blocks would lie fallow unless prompt action was taken in time. The owners of the land as well as the cultivators of the block became anxious, and representations were made to him for speedy arrangements for the cultivation of the disputed property. This block of 2400 acres lay within a common ring bund. Intermediate bunding operations and dewatering work had to be done jointly by all the cultivators as common work. The matter was therefore reported to Government and as they were satisfied of the urgent necessity, they requisitioned the land and entrusted the 2nd counter petitioner to arrange for the due cultivation thereof either by auction or by private negotiation. The seed for this land had been given to Thomman Mathan, and as his brother the 3rd counter petitioner had agreed to make use of that seed, the property was allowed to be cultivated by him. Otherwise there would have been delay in getting back the seed from Mathan so as to conduct the cultivation. The 2nd counter petitioner and the State had acted only in the best interests of the owners, cultivators, and the general public, so as to avoid the contingency of leaving out 2400 acres of paddy land fallow which may case a loss of two and a half lakhs of paras of paddy to the State and the Public. The petition was not supported by any bona fides and it had to be dismissed with costs. The 3rd counter petitioner had filed a counter affidavit in support of the 2nd counter petitioner's affidavit.