SYRIAC NIDHIRI Vs. NAGENDRA PRABHU

JUDGEMENT

(1.) THE petition is filed by one Chacko Kuncheria, under s. 18 (2) of the High Court Act and Arts. 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 lease-hold 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.) BOTH sides had produced some documents and those that were admissible had been marked in the case. It was admitted that in the auction held in 1123 the petitioner had taken 300 acres for cultivation. The cultivation in that area was on a co-operative basis. Kayal paddy lands were divided into several blocks. There would be several persons owning the definite portions in each block. The cultivation of each block could be conducted only if all the owners co-operated and made preparations for the cultivation. The ring-bunds had to be renewed and in most cases the intermediate bunds had to be put up. The water from the entire area had to be drained, for which contract had to be given for pumping out water. If any one of the owners was not in a position to cultivate his portion of the land it would be causing undue hardship to the other owners, so that the necessary provision had been introduced in the Irrigation Act to enable the State to step in and remedy the evil. They had appointed a Special Officer for this purpose, and on the consent of the owners he would lease out each block by auction for the definite purpose of paddy cultivation. The auction would be to cultivate paddy for one year, so that the bidders were to surrender the property after cultivation. This is the custom in that locality and this is admitted by the petitioner in one of his petitions to the 2nd counter-petitioner. Ext. B is the copy of that petition. It was admitted there, that as per the rules under which the auction was held, and according to the custom, the successor lessee would be entitled to enter upon the land only after the 15th Medom of each year. As mentioned already, the petitioner was the lessee for 273 acres for the cultivation for the year 1124. This is borne out by Ext. I the auction diary. The petitioner would say that after he collected the crops in the year 1124 had surrendered 140 acres out of this and retained possession of 133 acres. But he did not say to whom he surrendered 140 acres. But it could be seen from Ext. II (ae) the auction diary that the person who purchased the right to cultivate the said land in 1124 and cultivated the same. Under Cl. (q) of S. 108 of the transfer of Property Act, the lessee is to surrender the entire lease-hold to the lessor. He did not give any explanation as to how under law he was entitled to surrender a portion of the property he cultivated, retaining another portion with him though both the portions were obtained by him under the same transaction. The right to cultivate these paddy lands would not come strictly under the category of "leases" as defined in the Transfer of Property act. These lands were leased out for the specific purpose of cultivating paddy. He could no use that land for any other purpose, so that he could not get exclusive right to enjoy the so-called lease hold. Though this arrangement was called a lease-hold right, the mere use of such loose terms would not by itself confer on him all the rights of a lessee as is ordinarily understood. Apart from this, it had to be seen whether he had cultivated the said 129 acres in the year 1125. Admittedly, he had not purchased that right in auction. It had been purchased in auction by his brother job. The petitioner would say that job did not cultivate the land. Ext. II (c) of Meenom 1115 a petition filed by some of the owners and cultivators before the Punja Special Officer not to auction the land but to allow them to hold the land on the terms of the previous year, would clearly indicate that job was one of the cultivators. The auction diary ext. II (a) would show that job had purchased in auction only this property. He could therefore come in as a cultivator in Ext. II (c) only if he had cultivated the plot he had purchased in auction. In Ext. II (c) this job was the 9th signatory. No doubt, the petitioner also had signed the petition. He was the 10th signatory. He had not purchased any property in auction. But he had stated that out of 133 acres retained by him, four acres had been purchased by one joseph Thomas in revenue auction and that he had attorned to him. He might have cultivated the said four acres, or he might have helped his brother job in the cultivation of 129 acres. At any rate Exts. II (a) and II (c) would show that he could not have cultivated the said 126 acres in the exercise of any legal right. In 1125 he had applied for manure from the agricultural department. The agricultural department referred the matter to the Thahsildar, Ambalapuzha. The latter sent Ext. D certificate stating that the petitioner was the owner of 22 acres and 401/2 cents of paddy land and one acre and 5 cents of garden land, and that manure could be advanced on the security of these properties and also on the standing crops in the paddy lands cultivated by him. Pursuant to this he had executed an Udampady Ext. A to the Director of Agriculture where all the properties mentioned in Ext. D were included. He had also included there the standing crops on 133 acres in D Block. There was no certificate issued by the tahshildar as to whether the petitioner had cultivated the said 133 acres mentioned in Ext. A. At any rate it would be seen that his brother job was an attestor to Ext. A. Though Job was the actual person who cultivated the land his attestation to Ext. A was sufficient to indicate that he would not advance any claims to the crop in case Director of Agriculture was forced to proceed against the standing crops. Apart from this, Ext. A has no probative value to hold that the petitioner was the person who actually cultivated the land under any legal right. The evidence afforded by Exts. A and D are not sufficient to hold against the auction diary. Ext. II (a) supported by the affidavit of a responsible officer, like the 2nd counter-petitioner.