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Super Rubbers Private Ltd. and ors. Vs. the State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 4194, 4218, 4230 and 4231 of 1972
Judge
Reported inAIR1973Ker114
ActsDefence of India Act, 1971 - Sections 38; Defence of India Rules, 1971 - Rule 113, 113(1) and 113(2); Land Utilization Order, 1967; Essential Commodities Act, 1955; Defence of India Rules, 1962 - Rule 30A(9); Constitution of India - Article 226
AppellantSuper Rubbers Private Ltd. and ors.
RespondentThe State of Kerala and anr.
Appellant Advocate Kalathil Velayudhan Nair,; V.S. Moothathu,; N.R.K. Nair
Respondent Advocate T.C.N. Menon, Govt. Pleader
DispositionPetitions dismissed
Cases ReferredIn Malloch v. Aberdeen Corporation
Excerpt:
property - land - section 38 of defence of india act, 1971, rules 113, 113 (1) and 113 (2) of defence of india rules, 1971, land utilization order, 1967, essential commodities act, 1955, rule 30 a (9) of defence of india rules, 1962 and article 226 of constitution of india - orders regarding cultivation of paddy in certain reclaimed paddy lands under challenge - orders are purely administrative and rules of natural justice not applicable to them - petition dismissed. - - jacob, plam-parambil house, wilson road near ereka-davu, kottayam have failed to comply with the said order; it alleged failure on the part of the government to give it adequate police protection and to bring about an agreement in the labour disputes between the agriculturists and the agricultural labourers as.....narayana pillai, j.1. what is assailed in these petitions filed under articles 226 and 227 of the constitution is certain orders passed by the (1st respondent, the state of kerala, under rule 113 (1) (b) and (2) of the defence of india rules of 1971, for short, the 1971 rules, regarding the cultivation of paddy in certain reclaimed paddy lands in the vembanad lake in kuttanad in the alleppey district. the main petition is o. p. no. 4194 of 1972. counter and reply affidavits have been filed only in that original petition. the government pleader appearing on behalf of the respondents and counsel appearing for the petitioners in all these petitions agreed in submitting when these petitions were heard that as the fate of the other petitions depended upon that in o. p. no. 4194 of 1972 it.....
Judgment:

Narayana Pillai, J.

1. What is assailed in these petitions filed under Articles 226 and 227 of the Constitution is certain orders passed by the (1st respondent, the State of Kerala, under Rule 113 (1) (b) and (2) of the Defence of India Rules of 1971, for short, the 1971 Rules, regarding the cultivation of paddy in certain reclaimed paddy lands in the Vembanad lake in Kuttanad in the Alleppey District. The main petition is O. P. No. 4194 of 1972. Counter and reply affidavits have been Filed only in that original petition. The Government Pleader appearing on behalf of the respondents and counsel appearing for the petitioners in all these petitions agreed in submitting when these petitions were heard that as the fate of the other petitions depended upon that in O. P. No. 4194 of 1972 it would be sufficient if they were disposed of according to the decision in O. P, No. 4194 of 1972. In other words they said that if O. P. No. 4194 of 1972 was allowed, the other petitions also may be allowed and if it was dismissed, the other petitions also may be dismissed.

2. The land involved in O. P. No. 4194 of 1972 is in 'T' block. It is surrounded on all sides by water. Agricultural operations in Kuttanad are peculiar. Immediately after the harvest which usually takes place in January the lands are ploughed. When ploughing takes place the internal bunds are also laid. Thereafter water is let into the lands. For several months thereafter the lands would be under water. After repair of the outer bunds the lands are dewatered. Thereafter seeds are sown.

3. Early this year under the auspices of the Marxist Communist Party a 'Land Grab Agitation' was started in the State. Compaigns for forcibly taking lands held by land-holders in excess of the ceiling area fixed in the Land Reforms Act were organised by the Party. Threats were issued to cultivators that they would not be allowed to carry on agricultural operations peacefully. In a statement issued by Sri A. K. Gopalan, a leader of the Marxist Communist Party, and published in the newspaper, Mathrubhoomi, dated August 1, 1972, Ext. P-1, he said that even though members of his party were not against landholders raising cultivations in such excesslands, they would not allow the land-holdersto take the yield from the lands.

4. Disputes arose between the agriculturists and agricultural labourers of the area regarding the wages to be paid to the labourers at the various stages of paddy cultivation for the agricultural season. These disputes started by June, 1972. Kuttanad Agriculturists' Association which represents almost all the cultivators in Knttanad area took a decision that if the dispute regarding the wages to be paid to the labourers during the agricultural season, 1972-73, was not settled and peaceful cultivation was assured the agriculturists in Kuttanad would not cultivate the lands and would allow the lands to lie fallow during the 1972-73 season. On August 17, 1972 the Minister in charge of Agriculture issued a statement published in the newspaper, Hindu, dafed August 18, 1972, Ext. P-4, that if the cultivators did not give up their 'no cultivation programme', the Government would invoke the 1971 Rules and take over the uncultivated lands in Kuttanad.

5. On August 21, 1972 the Government notified the order, Ext. P-5, under Rule 113 (1) (b). It reads thus:

'S. R. O. No. 432/72--Whereas the Government of Kerala have reasons to believe that paddy lands comprised in the ka-yal padasekharams of Alleppey District specified in the Schedule below will be left fallow during the ensuing cultivation season;

And Whereas for maintaining supplies of paddy and rice which are essential to the life of the community, it is necessary to provide for bringing under cultivation such paddy lands and for the growing therein of paddy.

Now, therefore, in exercise of the powers conferred by Clause (b) of Sub-rule (1) of Rule 113 of the Defence of India Rules, 1971, the Government of Kerala hereby order that every person in possession or effective control of any paddy land in the kayal padasekharams specified in the said Schedule shall take steps (including re-pairing of bunds where necessary and de-watering) to cultivate it with paddy either personally or through any other person with-in a period of fifteen days from the date of publication of this order in the Gazette.

SCHEDULE

Name

of Kayal Padasekharam,

Village.

Sy. No.

Area a c

Q.

Block

Kainakary

441/1

744. 35

S.

Block

KainakaryAlleppey

444/1 & 499/2910 /3

674.57

T.

Block

KainakaryAlleppey Arvad South

444/1 910/3 411/1

590.51

C.D.

Block

Kainakary Alleppey

499/2545/24 910/34

2447.30.'

The period of 15 days mentioned in that order expired on September 4, 1972. As steps were not taken as directed in it for cultivating the land with paddy, Government on September 10, 1972 under Rule 113 (2) passed the order, Ext. P-7, which reads thus:

'Whereas the Government of Kerala had in their order dated 21st August, 1972 published as S. R. O. No. 432/72 in the Kerala Gazette Extraordinary dated the 21st August, 1972, directed that every person in possession or effective control of any paddy land in the Kayal Padasekharams specified in the Schedule to the said order shall take steps (including repairing of bunds where necessary and dewatering) to cultivate it with paddy either personally or through any other person within a period of fifteen days from the date of publication of the said order;

And whereas in the opinion of the Government you, M/s. Super Rubbers (P) Ltd., Managing Director, Shri M. J. Jacob, Plam-parambil House, Wilson Road Near Ereka-davu, Kottayam have failed to comply with the said order;

Now, therefore, in exercise of the powers conferred by Sub-rule (2) of the Rule 113 of the Defence of India Rules, 1971, the Government of Kerala hereby direct that the land belonging to you and described in the Schedule below shall be placed in the exclusive possession of the District Collector, Alleppey, for a period of one year from the date of service of this order.

SCHEDULE

Name of Kayal Padasekharam.

Village.

Sy. No.

Area.

Kainakary

444/1

A. C. 815.00'

It is the validity of these proceedings, Fxts. P-5 and P-7, that is challenged in O. P. No. 4194/72. It is similar proceedings passed in respect of other lands in the same area that are challenged in the other original petitions.

6. According to the petitioner in O. P. No. 4194 of 1972, a Private Limited Company, it has spent large sums of money for raising cultivations on the land. This land belongs to two persons, M. J. Cherian and M. J. Luiz. They mortgaged it to petitioner for Rs. 40,000/- with a recital to deliver 7,000 paras of paddy annually to the mortgagors. The petitioner cultivated the land in the past three years. After the last harvest in January this year the entire land was ploughed and it was over towards the end of March. During that period the internal bunds were also laid. The land had thereafter been lying under water. Dewatering operations in the area had to be done by pumping contractors authorised by the cultivators. Pumping contractors had got ready electric motors and the pumping ac-cessories after repairing them at heavy cost. Pump sets had been landed at the sites. The outer or ring bunds had been repaired. Bamboo, coconut and arecanut posts, water-proofing long grass, sticks and cadjan leaves ad been got ready. Bags for soaking seeds had been purchased. For dewatering electric connection had to be secured from the Electricity Office at Pallom. For that a solvency certificate was obtained from the Tahsildar, Kuttanad on July, 15. This certificate was produced before the Punja Special Officer along with an application for a certificate for connection of the power lines. The Punja Special Officer issued to the pumping contractors on September 8, a certificate for connection of electricity.

The pumping contractors executed an agreement before the Electrical Engineer, Pallom, on September, 11, Four Electric Motors were brought to site for pumping operations. The petitioner on September 4, applied for seed to the Joint Director of Agriculture, Alleppcy. The Joint Director of Agriculture informed the petitioner on September, 9 that seeds may not be available with him. For all these the petitioner had spent large sums of money and accord-ing to the petitioner it had taken all steps necessary for raising cultivations. So far as the acts yet to be clone for raising cultivations the petitioner pleaded impossibility of performance on account of certain circumstance's beyond its control. It alleged failure on the part of the Government to give it adequate police protection and to bring about an agreement in the labour disputes between the agriculturists and the agricultural labourers as grounds for its inability to take further steps towards raising cultivations on the property and relied upon certain newspaper reports containing the statements of Ministers to substantiate them. In the report, Ext. P-4, dated August 17, the Agriculture Minister had stated that there had been a meeting of Industrial Relations Committee the previous day and that no settlement had been reached at that meeting. In the report, Ext. P-6, dated August 29, 1972 the Chief Minister said that the dispute regarding wages would be considered by the Industrial Relations Committee and that if no settlement was reached the Government itself would convene a conference shortly. According to the report, Ext. P-8. only on September 7, was a settlement readied and thereafter the Agriculture Minister exhorted the agriculturists and the agricultural labourers to start agricultural operations.

7. The first ground of attack is that the Defence of India Act, 1971, under which the 1971 Rules were published, was passed in the face of war and that after the war use of the Rules could not be resorted to. It is not correct to say that the Act was intended only for the duration of the war. As the preamble to the Act shows besides civil defence the Act is also intendedto provide for special measures to ensurepublic safety and interest. The emergency as not so far been lifted. The aftereffects of the war are still looming large. It is not for the Court to consider the policy for not lifting the emergency.

8. If lands are kept fallow, instead of taking action under the 1971 Rules Government could have taken action under the Land Utilisation Order, 1967, issued under the Essential Commodities Act, 1955. The provisions of that Order are not so stringent as those in the 1971 Rules. In fact Section 38 of the Defence of India Act directs the authority acting in pursuance of the Act to interfere as little as possible with the ordinary avocations of life and enjoyment of property. The material portion of Clause 4 of the Land Utilisation Order, 1967 reads: '4. Notice to cultivate land:

(1) Notwithstanding anything contained in any law, order, custom or practice for the time being in force, the Collector may, by notice in writing, call upon the holder of any occupied waste or arable land (whether appurtenant to a building or not) situated within the Collector's jurisdiction, which is not under cultivation and which, in the opinion of the Collector, is likely to be left fallow during the current cultivation season, to cultivate it with paddy or other food crops, either personally or through any other person, within such period as may be specified in the notice.

(2) The notice shall be served by delivering or tendering to the holder of the land a copy of such notice and if the bolder of the land is not readily traceable or refuses to accept the notice, sen. ice shall be effected by affixing a copy of the notice on the outer door of his house and another copy on a conspicuous part of the land to which it relates.

(3) If, within ten days from the dare of service of the notice or within such further period as the Collector may grant in this behalf, the holder of the land shows to the satisfaction of the Collector that the land is being cultivated or is not capable of being cultivated, the Collector shall cancel the notice.'

and Section 38 of the Defence of India Act reads:

'Any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the pub-lie safety and interest and the 'defence of India and Civil defence.'

In view of the provisions of Section 38 it is argued on behalf of the petitioner that the Government should instead of invoking Rule 113 (1) (b) and (2) which read thus :

'113. Control of agriculture-- (1) The Central Government or the State Government, so far as it appears to it to be necessary or expedient for regulating or increas-ing the supply of articles which can be us-ed in connection with the conduct of military operations or for maintaining supplies and services essential to the life of the community, may by notified order provide for-

xxxxx

(b) bringing under cultivation anywaste or arable land whether appurtenantto a building or not and for the growingtherein of specified crops;

xxxxx

(2) If in the opinion of the State Government the person in possession or effective control of any land to which an order made under Clause (b) of Sub-rule (1) applies has failed to comply with the order, mat Government may. without prejudice to any other action that may be taken against that person (hereinafter referred to as the defaulter) in respect of the contravention, by order direct that the land shall be placed in the exclusive possession of such person and for Such period as may be specified in the order, and during the period of continuance of the last mentioned order the person specified therein shall have all the rights of the defaulter to manage the land and realise the profits arising therefrom and shall only be liable to pay on behalf of the defaulter the Government revenue, all other charges of a public nature and the rent, if any, accruing due in respect of the land during that period.'

have applied Clause 4 of the Land Utilisation Oreler 1967. Scope for the applicufion of that Section would arise only when the concerned authority acts under the Defence of India Act and enforces its provisions. It cannot be used for extraneous purposes. In other words it cannot be used as a ground |for not invoking the Defence of India Act. What is attempted to be done on behalf of the petitioner is to make use of that provision as a ground for not applying that Act at all. That is not the purpose of the section. The direction in Ext. P-7 to place the land under the disposal of the first respondent is only for a period of one year, just for raising cultivation once. When there are two provisions under which the Government could have taken action it is open to the Government to take action under any of those provisions. There is no merit in the argument based on Section 38 of the Defence of India Act.

9. Ext. P-7 order was passed consequent on the default of the petitioner to comply with the direction in Ext. P-5 order to take steps to cultivate the land with paddy. For Rule 113 (1) (b) to apply the land in respect of which the notification is issued should be waste or arable land. There is dispute as to whether the land here is arable or not. According to the petitioner 'arable land' is virgin land. The Supreme Court in considering the meaning of the expression 'arable land' occurring if the Land Acquisition Act said in Ishwarlal v. State of Guja-rat, AIR 1968 SC 870, that 'arable land'meant not only land capable of cultivation but also land actually cultivated. There isno reason why the same meaning cannot be given to those words occurring in Rule 113 (1) (b) also. Therefore the meaning of the expression 'arable land' as used in Rule 113 (1) (b) has to be taken as cultivable land whether cultivations have been raised on it before or not and not meaning virgin land alone. As the land in the present case was cultivable land it is arable land and therefore it was competent for the Government to pass Ext. P-5 order in respect of it.

10. It is complained that even if Ext. P-5 order was justified the Government was unjustified in passing Ext. P-7 order because the petitioner had really taken steps to cultivate (he land with paddy and that no opportunity was given to it before passing Ext, P-7 order to show that. In other words the complaint is that principles of natural justice were not observed in passing Ext. P-7 order.

11. It is convenient at this stage to consider the character of the two orders, Exts. P-5 and P-7. The Supreme Court had occasions to consider the character of orders passed under the corresponding provisions in Rules 30 (1) (b) and 30A (9) of the Defence of India Rules, 1962, with regard to detention of persons. The material portions of those Rules read;--

'30. Restriction of movements of suspected persons, restriction orders and detention orders:-- (1) The Central Government or the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India's relations with foreign powers, (the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community) it is necessary so to do, may make an order-

xxxxx

(b) directing that he be detained;

xxxxx

30-A. Review of detention order:--

xxxxx

(9) Every detention order made by the Central Government or the State Govern-ment shall be reviewed at intervals of in more than six months by the Government who made the order and upon such review that Government shall decide whether the order should be continued or cancelled.'

12. In Sadhu Singh v. Delhi Administration, (1966) 1 SCR 243 = (AIR 1968 SC 91), the Supreme Court held tint both the initial order of detention passed under Rule 30 (1) (b) and the subsequent order of review passed under Rule 30-A (9) were executive and that therefore both those orders proceeded upon the subjective satis-faction of the prescribed authority. But regarding the subsequent order of review under Rule 30-A (9) a different view was taken by that Court in the later decision in P. L. Lakhanpal v. Union or India, AIR 1967 SC 1507. There it was held that the decision on a review nnder Rule 30-A (9) had to be arrived at from the facts and circumstances which actually subsisted at the time when the initial order was made in the light of the subsequent developments and not merely those existing at the time when the order was passed. The use of the word 'decide' in Rule 30-A (9) instead of the words 'is satisfied' implied that the order was quasi judicial. That decision had to be founded on facts and circumstances which made the continuation of detention necessary in order to prevent the detenu acting in a prejudicial manner. Another reason given by the Supreme Court for the first order being considered executive and the second order quasi judicial was the time factor. While the initial order had to beEassed urgently and no moment could be lost in passing it there was sufficient interval, about six months, between the passing of the initial order and the second order of review, to enable the Government to scruti-nise the case fully and ascertain whether facts and circumstances demanded continuation of detention. Both these reasons weighed with the Supreme Court in holding that the order under Rule 30-A (9) was quasi-judicial and that the function under that Rule had to be discharged by an objective determination of facts and circumstances.

13. The nature of the two orders, the one parsed under Rule 30-A (9) of the 1962 Rules and the other under Rule 113 (2) of the 1971 Rules is entirely different. While the words used in Rule 30-A (9) are 'Government shall decide after review' the corresponding words in Rule 113 (2) are only 'in the opinion of the State Government.' The two expressions have different significations. While a judicial determination according to objective standards after complying with the rules of natural justice is contemplated in making the decision under Rule 30-A (9) of the 1962 Rules no such determination is necessary to justify an order under Rule 113 (2) of the 1971 Rules because to pass an order under Rule 113 (2) the Government instead of deciding has only to form an opinion.

14. In the Single Judge's decision oF this Court in President, Commonwealth Co-operative Society Ltd. v. Joint Registrar (General) of Co-operative Societies, 1969 Ker LT 580 = (AIR 1971 Ker 34), it was held that from the use of expressions like 'where it appears' or 'if it appears to the satisfaction of' or 'if the..... considers itexpedient that' or 'if the..... is satisfiedthat' it could not be taken that the duty to act judicially had been excluded. That cannot be taken as laying down the correctlaw in the light of the Supreme Court decision in AIR 1967 SC 1507, where their Lordships specifically relied on the difference in the words 'satisfied' occurring in Rule 30 (I) and 'decide' occurring in Rule 30-A (9) of the 1962 Rules as a ground for distinguishing administrative and quasi judicial orders.

15. While Sri. Kalathil Velayudhan Nair, learned counsel for the petitioner, submitted that the horizon of the writ jurisdiction was expanding and that the distinction between administrative power and quasi judicial power was gradually getting obliterated Sri. T. C. N. Menon, learned Government Pleader, submitted that a tendency in the opposite direction was also discernible here as well as in England and both of them relied upon certain decisions of the Supreme Court and House of Lords. In A. C. Companies v. P. N. Sharma, AIR 1965 SC 1595, the Supreme Court said that the area where the principles of natural justice had to be followed and judicial approach had to be adopted had become wider and consequently the horizon of the writ jurisdiction had been extended in a corresponding manner and in A. K. Kraipak v. Union of India, AIR 1970 SC 150, that Court said that the dividing line between administrative power and quasi judicial power was quite thin and that it was being gradually obliterated. At the same time it was laid down in the latter decision that a power could be either administrative or quasi judicial and that for determining whether it was administrative or quasi judicial one had to look to the nature of the power conferred, the person on whom it was conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power was expected to be exercised.

In Amar Chandra v. Collector of Excise, Government of Tripura, Agartala, AIR 1972 SC 1863 a licence issued in favour of the appellant in that case and which was to be valid till 1973 was cancelled long before the expiry of the period fixed in the licence relying upon Section 43 of the Bengal Excise Act which provided that the person who granted the licence if he considered that the licence should be withdrawn could do it either on the expiry of 15 days' notice in writing of his intention to do so or forthwith without notice. In that case the licence was withdrawn giving 15 days' notice to the appellant. It was the validity of that that was challenged by him, What was argued was that before withdrawing the licence no separate show cause notice was given to him and that therefore rules of natural justice were not observed before withdrawing the licence. In repelling that argument the Supreme Court said that rules of natural justice varied with the varying constitutions of statutory bodies and therules prescribed by the legislature under which they had to act and that the question whether in a particular case rules of natural justice had been contravened had to be judged not by any preconceived opinion of what they may be but in the light of the relevant statutory provisions.

In Nantin Das v. Improvement Trust, Amritsar, AIR 1972 SC 865, the Supreme Court held that unless a statute expressly provided for giving reasons also for a decision an order passed under that statute could not be attacked on the ground that it did not contain reasons. In Ridge v. Baldwin, 1964 AC 40, a decision of the House of Lords, Lord Reid drew a distinction between war time and peace time legislation and said that in Defence Regulations it was 'a reasonable and almost an inevitable inference from the circumstances in which Defence Regulations were made and from their subject matter that, at least in many cases, the intention must have been to exclude the principles of natural justice' and that provision in such legislation for orders to be passed on the basis of 'reasonable cause to believe' was a statutory restraint and was a sufficient alternative safeguard to rules of natural justice where the function was administrative and that decision regarding statutory restraint was followed by the Supreme Court in Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295 and even applied it in interpreting certain provisions of the Companies Act, a peace time legislation. The Supreme Court held there that the words 'reason to believe' or 'in the opinion of were alternative safeguards to rules of natural justice where the function was administrative.

In Malloch v. Aberdeen Corporation, (1971) 2 All ER 1278, another decision of the House of Lords, Lord Wilbcrforce agreeing with the opinion of Lord Reid in that case which related to the dismissal of a teacher said:

'The particular principle of administrative law to which he appeals is that, before his dismissal became effective, he ought to have been given an opportunity of making written representations to or of being heard by the education authority. He had asked for this opportunity, and it is admitted that it was refused by the respondents. The appellant has first to show that his position was such that he had, in principle a right to make representations before a decision against him was taken, But to show this is not necessarily enough, unless he can also show that if admitted to state his case he had a case of substance to make. A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the Courts, unless behind it there is something of substance which has been lost by the failure. The Court does not act in vain.'

It is not correct to assume from these decisions that the distinction between executive or administrative orders on the one side and quasi judicial orders on the other has disappeared or that the rules of natural justice are being applied indiscriminately to all executive orders, that is, even to such executive orders where their application is excluded by the legislature, either expressly or by implication.

16. Legislative, executive and judicial functions are distinct and separate attributes of all soverign democratic States and so long as they are separate there are bound to be separate legislative or statutory, executive and judicial orders and their distinction cannot disappear. It is to Courts that the State has mainly transferred its judicial functions and observance of rules of natural justice also is essential for administration of justice by Courts. As regards pure executive or administrative orders if the Act under which they are passed expressly or by implication excludes the application of rules of natural justice those rules cannot apply to them because that is the will of the legislature. But even in the case of such orders they have to be fair because fairness is not dispensed with by exclusion of the rules of natural justice. To act fairly is to apply one's mind to the facts and circumstances and to take a dispassionate decision. And it is because the dividing line between rules of natural justice and principles of fairness is thin and many subsidiary rules are being added to the rules of natural justice that it is said that as regards application of rules of natural justice the distinction between administrative and quasi judicial orders is gradually getting obliterated. But that should not be taken to mean that administrative orders are getting merged with quasi judicial orders. Anyway, even as regards administrative orders to which application of rules of natural justice is not excluded as no Court would indulge in exercise in futility or in other words as no Court would act in vain, unless the aggrieved party satisfies the Court that if notice had been given to him or he had been heard he would have impressed on the concerned authority that no order against him could have been passed, the Court would not interfere. As regards quasi judicial orders as tribunals pass them in exercise of part of the judicial powers and functions transferred to them by the State rules of natural justice apply to them. As regards legislative or statutory orders they are expressions of the will of the people and rules of natural justice have no application. The only ground on which they are open to attack is want of competency and if they are constitutionally competent they have to hold the field.

17. In the present case the order under Rule 113 (2) could be passed if in the opinion of the Government there was failure to comply with the order under Rule 113 (1) (b). A decision had not to betaken but only an opinion had to be formed before passing the order under Rule 113 (2). The interval between the passing of the two orders was not for enabling the Government to review the first order but for the concerned party to comply with the first order. There is no indication in the Defence of India Act or the 1971 Rules that any notice or quasi judicial inquiry is needed before orders can be passed under Rule 113 (1) (b) and (2); no reasons are required to Justify the action; and there is no provision for any appeal or revision. Nor can the result of the impugned orders be said to be so drastic as necessarily to imply the need for a quasi-judicial inquiry; the petitioner is not being deprived of his ownership of the land, only the possession is being taken for one year, just to raise cultivations on it once. Furthermore the powers granted under the Defence of India Act and the Rules framed thereunder have to be judged in the context of the national emergency that has led to the passing of the Act and which still exists. In many cases it may be of the utmost importance for the powers conferred on the Government to be used with utmost speed and suddenness; and to hold that the Govern-ment is under an obligation to spend time in issuing notices and listening to objections would be calculated to defeat the very ob-ject of the legislation. We are satisfied that Exhibits P-5 and P-7 are purely administrative orders and that rules of natural justice do not apply to them.

18. As Exts. P-5 and P-7 are orders Issued under a legislation passed in an emergency, the area of interference is more limited than in respect of identical legislation at other times, There is no right of hearing provided for in Rule 113 (1) (b) and (2). But as formation of opinion is a condition precedent to the passing of an order under Rule 113 (2) the Government should have applied its mind before passing the order, the order should be bona fide, it should be based on relevant materials and it should be fair.

19. It was because of the campaign carried on of 'no cultivation' and the threat made by the agriculturists in Kuttanad that they would leave the lands fallow that Ext. P-5 order was passed. In such circumstances, even if the petitioner had done several things before and spent large sums of money for doing them, they all pale into insignificance and the question as to whether the petitioner had: done anything towards raising cultivations on the land after the passing of Ext. P-5 order assumes importance. There is no allegation anywhere in the petition that after the date of Exhibit P-5 order and before September, 4 any step had been taken by the petitioner towards raising cultivations on the land. The petitioner is stated to have filed applications before the Punja Special Officer for gettingcertificates for electric connections to the motors. Even the dates of those applications have not been mentioned in the petition. It is stated in the reply affidavit that as there was agitation by the members ot the Kuttanad Agriculturists' Association in front of the Punja Special Office two persons, M. J. Cherian and M. J. Luiz, who went there for filing the applications were obstructed by the agitators from going in and filing the applications and that therefore they could file the applications only on September 6, when the agitators were not present in front of the Pnncha Special Office. Ext. P-11 dated September 4, 1972 shows that the agitation, was really in front of the village office, Taluk Office, Collectorate and Secretariat. The petitioner has not produced copies of the applications filed by M. J. Cherian and M. J. Luiz.

Exhibits P-9 and P-10 are copies of two applications filed along with the original petition. What is stated in the original petition is that similar applications had been filed for the 'T' Block also for electric connection. But Exts. P9 and P10 are filed by one M. J. Jacob. What they show is that the land mentioned therein is in his possession and that the connection referred to there is for his raising cultivations on the land. Exhibit P-2 is the petition filed by the petitioner before the second respondent, the District Collector, on Tune 30 regarding the cultivation of 'T' Block. Para 5 of it shows that dewatering had to commence by the middle of July at the latest and that if pumping out water was delayed in 'T' block which was situated at the outermost end of the reclaimed lands, agriculture would become impossible for this year due to ingress of saline water. Although it was stated in the petition that ploughing operations were over by March, 23 and that during the ploughing operations the internal bunas had been laid, in Ext. P-3, the petition filed by the petitioner on August 9, before the Home and Revenue Ministers, it was admitted that the bunding operations had yet to be started, that the time for starting the same was usually the first week of July every year and that if that and the installation of sluices and dewatering were delayed it was sure to result in failure of crops owing to the onrush of saline water from sea. It was also admitted there that in the matter of paddy cultivation time was of the essence and that the slightest dislocation or delay in the agricultural operations was sure to result in failure of crops. The admissions made by the petitioner in Ext. P-3 show that even as late as August 9, the petitioner had not completed the preliminary operations like the putting up of bunds and sluices and installation of pump sets for dewatering.

20. One ground mentioned at the time of the hearing of these petitions for not having taken all the steps necessary for raising cultivations on the land was thelabour trouble at the place. That was not mentioned in Ext, P-3. The only cause mentioned there for the delay which the petitioner company itself described as disastrous was the 'Land Grab Movement' and the delay in finalising the proceedings for surrender. The surrender referred to there was surrender of excess land under the Land Reforms Act. Ext. P-3 petition was for Police protection. Ext. P-3 itself shows that assurance had been given that police would render aid in case of actual comission of any crime. As no overt act was complained of such assurance alone could be given on behalf of the Government at that time. The counter affidavit shows that the District Collector had really given instructions to the Superintendent of Police to give all necessary protection. It was admitted in paragraph 10 of Ext. P-3 that the ring bunding operations had not been completed. The cause for that was attributed in Ext. P-3 itself to the failure on the part of the Company to restore the morale of the employees and workers. It is seen from Ext. P-8 that there was really a settlement of the labour dispute on September 9, 1972.

21. As dewatering had not been started even as late as August 21, 1972 the Government issued Ext. P-5 notification and in it specifically directed that all steps in-chiding repair of bunds wherever necessary and dewatering bad to be done in 15 days time. As regards the erection of motor for dewatering the facts mentioned by the petitioner are not clear. What is stated in the original petition is that on the date of its filing namely September 15, motors had been brought to the site and that they were awaiting electric connections for starting dewatering operations. The exact date as to when they were brought was not mentioned in the petition. It was on September 13, that pursuant to Ext. P-7 order the second respondent took possession of the land. It was specifically mentioned in the counter-affidavit that it was only on the next day at 2 P. M. when the joint Director of Agriculture and another officer were inspecting the site that the motors were brought to the place. In answer to that it is stated in the reply affidavit that the motors were brought to the site long back and that statement that the motors were brought only on 14-9-1972 was not correct. Even there the petitioner has not given the exact date when motors were brought to the place.

22. It is stated in the counter-affidavit that 'T' block being one of those blocks of land newest to the sea, agricultural operations had to be commenced and completed there earlier than in the other blocks and thai at any rate sowing should have been over af least before the 15th of September. That those facts are true can be seen from the admissions of the petitioner in Exts. P-2 and P-3.

23. Although it is stated in the petition that the extent of the land is only315 acres, what is seen from Ext. P-5 and the counter-affidavit is that it is really 596.51 acres. As regards the extent the answer in the reply alfidavit is that the petitioner was not satisfied on measurement about the extent being 596,81 acres and that the petitioner was in possession of only S15 acres. If the petitioner is in possession of only 315 acres it cannot have any complaint regarding the balance portion.

24. It is alleged that the petitioner had applied on September 4, 1972 to the Joint Director of Agriculture, Alleppey, and the Kuttanad Agricultural Co-operative Society for seed paddy for cultivation and that the Joint Director of Agriculture, Alleppey had informed the petitioner on September 6, that seeds may not be available with him. Copies of the applications have not been filed. In the counter-affidavit after denying the fact that the petitioner had applied for seed paddy it is stated that only one M. J. Cherian had applied for seed paddy and that that was only for 157 acres in 'T' block.

25. It is alleged that application for issue of certificate for connection of the power lines was filed before the Pancha Spe-cial Officer and that he issued the certificate to the pumping contractors on September 8, 1972. The counter-affidavit shows that the application for electric connection for 'T' block was really filed by two persons, M. J. Cherian and M, J. Luiz, that the application for subsidy in respect of the land was also filed by those two persons and that they had stated therein that they were the cultivators.

26. The report of the Commissioners deputed by this Court to inspect the land shows that at a number of points several articles had been collected. It cannot be inferred from that alone that they were intended for the lands of the petitioner. Further, they could all have been placed there after the second respondent had taken possession of the land because it was thereafter that the Commissioners visited the place.

27. From the representations made by the petitioner in the several applications filed by it before the Government wherein it was stated that delay in taking steps for raising cultivations on the land may prove disastrous and that it had not taken steps to put up the bunds and de-watering in time the only reasonable conclusion that the Government could have reached was that if it did not act in time it would prove disastrous. The Collector sent reports to Government on September 4 and 9. From them Government was satis-fled that no proper steps had been taken by the petitioner to comply with the directions contained in Exhibit P-5.

28. Exhibits P-5 and P-7 orders are attacked on the ground that they are mala fide. According to the petitioner at aconference held on August 19, in which the Managing Director of the petitioner-company, the Chief Minister and Revenue Minister took part, the Chief Minister requested surrender to Government of the reclaimed lands for cultivation this year but the Managing Director of the company was willing only to the excess land being taken over by the Government and it was to wreak vengeance for that that Exhibits P-5 and P-7 orders were passed. In the counter-affidavit filed by the Revenue Minister the allegation that at the conference the Chief Minister requested surrender of the reclaimed lands to Government this year is denied. He has also stated there that there was no attempt then on his part or on the part of the Chief Minister to take over any of the lands without payment of compensation. He has further stated that it was the cultivators who at the conference threatened that they would not cultivate the lands unless their demands were fully conceded and that when they demanded an assurance from the Government that excess lands would not be taken over from them before the next harvest both the Chief Minister and the Revenue Minister said that the Cov-ernment had nothing to do with that as it was a matter for the Land Board, a statutory authority under the Land Reforms Act to decide. There is absolutely nothing to show that irrelevant considerations prevailed with the Government when it passed Exhibits P-5 and P-7 orders. Those orders were passed on relevant materials. There was proper application of mind before they were passed. They are bona fide, just and fair orders.

29. Article 14 of the Constitution was attempted to be invoked on the ground that Exhibit P-7 order which related only to land in 'T' block was discriminatory. Admissions of the petitioner in Exhibit P-3 show that the land in 'T' block is at the mouth of the Vembanadu lake and that unless cultivations are first raised there cultivations in the lands in the interior would become impossible on account of ingress of saline water from the sea. As there is reasonable classification for which there is a nexus there is no merit in the attack on the basis of Article 14 also.

30. It was lastly contended that even if the petitioner had not taken any step towards raising cultivations on the land it was on account of impossibility of performance. The impossibility alleged was on account of the Land Grab Agitation started by the Marxist Communist Party, the labour trouble at the place and the Satyagraha in front of the Puncha Special Office. There is no case for the petitioner that any trespass was made on these lands at any time by the Land Grab Agitators. What is seen from the counter-affidavit is that the second respondent had given necessary instructions to the Superintendent of Police to give necessary protection to the cultivators in 'T'block. No labour trouble was mentioned in Exhibit P-3 petition and no satyagraha in front of the Puncha Special Office was mentioned in Exhibit P-11. None of the grounds raised for getting Exhibits P-5 and P-7 orders quashed has any merit.

31. According to the petitioners there are several coconut trees, buildings and sheds belonging to the petitioners on the bunds. There are also, according to the petitioners, electric motors and accessories, bamboos, bamboo mats, coconut piles, country boats, water-proofing long grass and certain other articles on the bunds and furniture, lockers, agricultural implements, manure, insecticides, power sprayers and other articles in the buildings and sheds. The learned Government Pleader submitted that the Government had no objection to the petitioners being allowed to take the yield from the trees and to remove the articles mentioned by them from the blinds and the buildings and sheds on the bunds. In the circumstances the petitioners in all these original petitions are allowed to take the yield from the trees standing on the bunds and remove from the bunds and the buildings and sheds on them motors and accessories and the other articles mentioned by the petitioners as being there. Reserving those rights to the petitioners, these original petitions are dismissed with costs.


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