K. FAIZEL Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) THE appellant is the writ petitioner. The writ petition was filed to quash Exts. P2 and P14 and seeking for directions to return the land which was acquired by the Government, to the petitioner. Ext. P2 is an order dated 04/11/2013 issued by the Government pursuant to the directions issued by this Court in W.P.C. No. 23285 of 2005. The request of the petitioner was for re -conveyance of the land acquired from his predecessor -in -interest which came to be rejected by the Government. Ext. P14 is the order dated 02/02/2007 by which a decision was taken by the Government to resume an extent of 60 cents of land from St. Vincent Industrials for Government purpose.

(2.) THE short facts involved in the writ petition would disclose that the Government acquired an extent of 88 cents in Sy. No. 52/2A of Block 1 of Nagaram village of Kozhikode District by virtue of Section 4(1) of the Land Acquisition Act, 1894, notification dated 14/06/1962. The declaration under Section 6 was also published on the same day as the Government had invoked urgency clause under Section 17(4) of the Act dispensing with enquiry under Section 5A of the Act. Ext. P4 is the Section 4(1) notification, Ext. P5 is the declaration and Ext. P6 is the agreement executed between the Government and the requisitionist. Perusal of the above documents indicates that the property was acquired for housing the Industrial Training Centre of the Government of Kerala, run under the Craftsman Training Scheme of the Government of India, by constructing workshops, classrooms, office, hostel etc. needed for the trainees. In the section 4(1) notification and Section 6 declaration, the public purpose mentioned is "for the industrial Training Centre, St. Vincent Industrials, Kozhikode." In the agreement executed at Ext. P6, it is mentioned that the agreement is executed between St. Vincent Industrials, Charitable Institution, Kozhikode owned by the Roman Catholic Diocese of Calicut, a society registered under the Societies Registration Act, XXI of 1860. The land was acquired, compensation was paid to the land owners and possession taken and handed over to the requisitioning authority. However, the land owner based on the agreement, later contended that the property was not utilised for the purpose for which it was acquired and therefore sought for return of the land to the land owner in terms with Clause 3 of the said agreement. This Court directed the Government to consider the representation of the petitioner. Since nothing happened in the matter, she filed another writ petition as O.P. No. 10352/1993 for considering the matter and further directions were issued by this Court. The Government, after having considered the matter, formed an opinion that M/s. St. Vincent Industrials violated the terms and conditions of the agreement. Hence it was ordered that 60 cents of land has to be resumed after cancelling the patta and returned to the original owner. The said order came to be challenged before this Court by M/s. St. Vincent Industrials in O.P. No. 17209/1993. Writ petition was filed by the petitioner for implementing the Government order. However, the Government order was set aside as per judgment dated 22/07/1994 on the ground of violation of principles of natural justice. Though appeal was filed, the Division Bench did not interfere in the matter. Matter was again considered by the Government and again by order dated 02/02/2007 it was found that the land has to be resumed from M/s. St. Vincent Industrials on the ground that the purpose of acquisition was not complied with and the Government can utilise the same for its own purpose. W.P.C. No. 36318/2008 was filed by M/s. St. Vincent Industrials challenging the said Government order dated 02/02/2007 (Ext. P14 in W.P.C. No. 30665/2013). Petitioner again filed W.P.C. No. 23285/2012 alleging fraud in the acquisition proceedings which was directed to be considered as per judgment dated 12/12/2012, which resulted in Ext. P2 order dated 04/11/2013. The learned Single Judge, after an elaborate consideration of the facts and circumstances involved in the matter, opined that the request of the petitioner for re -conveyance of the land cannot be granted. It was also found that the allegation of fraud was not made out. Hence the claim of the petitioner was rejected. Further it was found that acquisition proceedings were challenged by the owner of the property in 1964 itself and the said judgment had become final. Hence the issue raised is barred by the general principles of res judicata and the petitioner is estopped from raising any challenge against proceedings of acquisition. The writ petition was therefore dismissed, however, making it clear that the Government may take appropriate action for resumption of the land based on violation of the terms of agreement, if any, committed by M/s. St. Vincent Industrials.

(3.) THE appellant raised two specific issues. One contention is that the very acquisition proceedings has to be found to be void account of the fraud committed by the 6th respondent. It is argued that the 6th respondent was not a society entitled for acquisition of land for a public purpose and even if there is delay in taking such a contention, in so far as fraud is detected, only at this point of time it has to be held that the acquisition is bad in law. The second contention urged is the right of the land owner to get reconveyance of land in terms of Clause 3 of the agreement executed between the Government and the requisitionist for not utilising the land for the intended purpose. The petitioner also relied upon various judgments to support his contentions. Reliance is placed on a Full Bench judgment of this Court in Kasim v. Mrs. Jucy Kochuvareed : [1964 KLJ 198] in which this Court held that fraud may be inferred from the facts established. If sufficient and reasonable ground for drawing inference of fraud is available, the conclusion of fraud must be adopted. Reference is made to the judgment of Supreme Court in H.M.T. House Building Co -operative Society v. M. Venkata Swamappa and others [ : (1995) 3 SCC 128] wherein the Supreme Court held that if the land acquisition proceedings are quashed, the land shall be restored to the respective land owners irrespective of the fact that they have challenged acquisition of land or not. Another judgment relied upon is Vyalikaval House Building Co -operative Society v. V. Chandrappa [ : (2007) 9 SCC 304] wherein the Supreme Court held that if the acquisition proceedings stand vitiated on account of fraud and the appellant society was found to be not a bona fide housing society, the entire notification is to be declared void. It was also argued that ground of delay in filing the writ petition nor acquiescence in having participated in Section 5A enquiry will not be a ground to deny the relief to the petitioners as the acquisition proceedings were mala fide and fraudulent. Another judgment relied upon is Hamza Haji v. State of Kerala : [2006(3) KLT 941] wherein the Supreme Court held that if the judgment or order was obtained by manifest fraud, it has to be treated as nullity by every court, and it can be challenged in any Court even in collateral proceedings.