(1.) Petitioner in this Writ Petition (hereinafter referred to as Dr. Babu), seeks a declaration that the Ordinance issued as "The Kerala Temporary Stay of Eviction Proceedings Ordinance, 2006" (Ordinance No. 41 of 2006) and the Kerala Temporary Stay of Eviction Proceedings Ordinance, 2006 (Ordinance No. 52 of 2006) and the Kerala Temporary Stay of Eviction Proceedings Ordinance, 2007 (Ordinance No. 14 of 2007) and the Kerala Temporary Stay of Eviction Proceedings Ordinance, 2007 (Ordinance No. 40 of 2007) and the Kerala Temporary Stay of Eviction Proceedings Act, 2007 (Act No. 14 of 2007) are invalid, void and non-est and ultra vires of the powers of the 1st respondent by issuing a writ of certiorari of other appropriate writ, direction or order directing the respondents to stay all directions and directives that are being issued by the first respondent and the second respondent to conduct survey and identification of the lands in the possession of various persons as a prelude to distribution of the lands to the unauthorised occupants and to stay the distribution of the lands detailed in the schedule to Ext. P14, Ext. P14A, Ext.P 14B, Ext. P14C Ordinances and Ext. P14Q Act to any person who is found to be in possession subsequent to 5.6.1995.
(2.) By Ext. P1 order the Taluk Land Board, Kozhikode directed M/s. Malabar Produce and Rubber Company Limited, (hereinafter referred to as the Company), to surrender an extent of 126.01 and half acres of land. The Collector took possession of the same. Dr. Sabu is a shareholder of the said Company, which was disposed of the land. According to the petitioner, the land came to be occupied by trespassers after dispossession of the Company. It is stated that the ruling party workers brought down hundreds of their supporters from other Districts with an intention to forcibly occupy the land. Exts.P2 and P3 are newspaper reports. Nearly hundred persons among the encroachers filed writ petition seeking that they may not be evicted and that the land could not be assigned to any other body or organization. The writ petition was dismissed. Writ Appeal filed also came to be dismissed. O.P. No. 19328 of 1995 was filed as Public Interest Litigation by some other persons seeking a direction to evict the encroachers. An interim order was passed directing eviction of the encroachers. It is the case of the petitioner that the petitioners in the Original Petition were compelled to withdraw the Original Petition. Ext.P7 is a copy of O.P.4023 of 1996 filed by the petitioner, that came to be dismissed on account of non-representation. It is stated that the petitioner filed O.P. 13326 of 1996 culminating in Ext.P8 judgment. By Ext. P8 judgment, a learned Single Judge of this Court directed the Government to take effective steps to remove the encroachment. This was done keeping in view the order passed by this Court in O.P. 19877 of 1996 and the decision in W.A. 13 of 1996 and also paragraphs 5 and 6 of the statement of the Government in O.P. 19877 of 1996. Government was also directed to take urgent steps for allotting the land for public purposes as intended as expeditiously as possible so as to prevent further encroachment. W.A. 2634 of 1998 filed by respondents 1 to 4 came to be dismissed by Ext.P9 judgment. Ext.P10 is the judgment in O.P. 19877 of 1996, which was allowed and the court directed that the Government should see that the encroachers are ousted from Government land. Another writ petition was filed by three MLAs and leaders of the encroachers as O.P.3366 of 2002 seeking assignment of the land and to refrain from evicting the occupants. The said original petition came to be dismissed by Ext. P11 judgment dated 8.2.2006. Thereafter this Court initiated suo motu contempt of court proceedings for non-compliance of the judgment. Ext. P13 would show that the court granted further time and directed the listing of the case on 31.7.2006. While so, Ext. P14 Ordinance came to be promulgated on 26.7.2006 providing in Section 2 thereof for stay of eviction of persons in occupation of the land described in the schedule for a period of one year. Still later Ext.P14(a) Ordinance dated 30.10.2006 came to be promulgated. Still later the first respondent enacted Kerala Temporary Stay of Eviction Proceedings Act, 2007, Act 14 of 2007 on 27.7.2007. By the said Act, stay of eviction is provided for persons in occupation for a period of two years. The Act was deemed to have come into force on 26.7.2006. Thus the petitioner challenges the constitutional validity of the legislation providing for stay of eviction of persons in the teeth of the statements filed and the judgment delivered by this Court as already mentioned.
(3.) In the counter affidavit it is stated that as far as the Ordinance is concerned, the challenge thereto will not lie as the Ordinance has ceased to operate. It is further stated that initially all the persons were removed 5.6.1995. Despite the police picket certain persons entered and occupied the land again. By judgment in O.P.1703 of 1996 the encroachers were directed to be evicted. There was such a direction in O.P. 19877 of 1996 also. However, in O.P.3366 of 2002 it was ordered that "till the court heard the O.P. and the contempt petition the State authorities shall stay their hands ". The writ petition itself came to be disposed of with the observation that if the petitioners have got a case that they are entitled to the assignment of the land encroached upon, it is for them to approach the appropriate authorities in accordance with law and seek their remedies, if their applications are rejected. It is stated that on 23.6.2006 persons in possession submitted 505 applications for assignment of the land and they have stated that formal applications were submitted for assignment of the land during 1997 when the applications were called for in accordance with the provisions of the Kerala Land Reforms Act and the Rules, and that in terms of O.P. 3366 of 2002 they have again requested to consider their applications, it is stated that earnest efforts are being made by the respondents to evict the encroachers, but the authorities were unable to deal with them due to the tense situation brought about by the mass resistance offered by them, and use of force may be likely to result in huge loss, damage and injury. It was in the circumstances, considering all aspects the Government had to consider the genuineness of the claims of such unauthorised occupants, the Ordinance was enacted, it is stated. The Ordinance was promulgated only to provide for a situation attendant with grave law and other situation that may arise if mass eviction is carried out. If their claims were found to be genuine, it would result in great hardship, if in the meantime Government is to evict them using force, it is stated. It is further stated that as per order dated 9.8.1995, 98.50 acres of the surplus land which was surrendered to the Government was proposed to be transferred to the Central Reserve Force for setting up a training complex. However, the above proposal was subsequently cancelled considering the fact that a good number of persons in occupation of the land are landless poor labourers eligible for assignment of excess land under Section 96 of the Kerala Land Reforms Act. The Ordinance is stated to be legal and within the powers. Petitioner has no locus standi. Petitioner is only a shareholder, it is stated. The decisions of this Court are pot circumvented by the Ordinance, it is contended.