Since subject matter involved in both these writ petitions are one and the same property and since parties in both the cases are more or less common, these writ petitions were heard together and disposed of through this common judgment. W.P (c) No.36318/2008 is hereinafter referred as the “first case” and W.P (c) No.30665/2013 as the “subsequent case”.
2. The issue has got a chequered history. During the year 1962 Government initiated steps to acquire 60 cents of property comprised in Sy. No.52/24 of 'Nagaram' Village in Kozhikode District for the purpose of starting an Industrial Training Centre (ITC) by M/s. St. Vincent Industrials, the petitioner in the first case. The land at that time was under ownership of the Additional 6th respondent in the first case and her husband, late Sri. Aboobacker Koya. Notification under Section 4 (1) of the Land Acquisition Act, 1894 (for short the Act) was published on 14-06-1962. Declaration under Section 6 was also published on the very same date (Exts.P4 & P5 produced in the subsequent case). The land acquired was entrusted to M/s. St. Vincent Industrials based on an agreement executed by them with the Government, under Section 41 of the Act (Ext.P6 produced in the subsequent case). The additional 6th respondent along with her husband Sri. Aboobacker Koya had challenged the Section 4 (1) notification, Section 6 Declaration, and the Agreement, in a writ petition filed before this court as O.P. No.943/1963. This court examined the question as to whether provisions in Part-VII of the Act was satisfied or not. It was contended therein that the Government could make acquisition for a company, only if it was satisfied about the necessity, under Section 39 of the Act. This court found that, from the report of the Special Tahsildar it is evident that an enquiry was conducted and the Government have arrived at a satisfaction that acquisition of the property was necessary for the company in question. Repelling all the contentions raised, this court held that the proceedings for acquisition was not vitiated by any infirmities and that the Government was satisfied about the necessity with respect to the purpose for which the acquisition was proceeded. Challenge was also raised against the agreement executed under Section 41, contending that all the particulars required were not mentioned. This court found that the circumstances would not vitiate the acquisition as there was substantial compliance of provisions contained in Section 41. The said writ petition was dismissed through judgment dated 31-08- 1964 (copy of the judgment was made available by the petitioner in the subsequent case).
3. In the year 1989 the additional 6th respondent along with one Sri.Shakir (stated to be her son) had filed another writ petition before this court as O.P. No.6852/1989 seeking direction for resumption of the property from M/s. St. Vincent Industrials and to give back it to the petitioners, based on an allegation that M/s. St. Vincent Industrials had violated terms of the agreement executed under Section 41. It was pointed out that, the Government is empowered to resume the land in question on such situation. It was also contended that since the land in question was no more required for any purpose, it has to be given back to its original owners. The said writ petition was disposed of through Ext.P2 judgment (in the first case). This court directed the Government to consider representation if any filed by the petitioners therein and to dispose of the same in accordance with law. Evidently, a representation as directed was filed by the Additional 6th respondent before the Government on 06-07-1992. Thereafter she had approached this court in yet another writ petition, OP No.10352/1993 seeking direction for consideration of the said representation, in which case a further direction was issued to the Government. Exhibit P3 (in the first case) is the consequential order issued by the Government. The Government found that M/s. St. Vincent Industrials had violated the terms and conditions of the agreement, having failed in fulfilling the purpose for which the property was acquired. Therefore it was decided to resume the land from M/s. St. Vincent Industrials. It was also found that there is no legal impediments in giving back the property to its original owners, in view of clause 3 of the agreement. Therefore it was ordered that 60 cents of land comprised in Sy. No.52/A of 'Nagaram' Village is resumed from M/s. St. Vincent Industrials after cancelling the 'patta' issued in their name and further to give back the property to the additional 6th respondent.
4. Exhibit P3 Government order was challenged before this court by M/s. St. Vincent Industrials in O.P. No.17209/1993. The additional 6th respondent along with one Sri. Kalarikkal Noushad (stated to be another son of her) had also filed O.P. No.17377/1993 seeking direction for implementation of Ext.P3. This court in a common judgment dated 22-07-1994 (Ext.P4 in the first case) had set aside Ext.P3 order finding that, resumption of the land was ordered without affording any opportunity to M/s. St. Vincent Industrials in clear violation of principles of natural justice. After quashing Ext.P3 order this court directed the Government to re-consider the whole issue and to take a fresh decision, after hearing both sides and other affected parties. The additional 6th respondent along with Sri. Kalarikkal Noushad had challenged the above judgment in appeal in W.A. No.1343/1994, but the attempt was unsuccessful.
5. Consequent to Ext.P4 judgment the matter was again considered by the Government, after a long lapse of time in the year 2007. Exhibit P7 (in the first case) is the order passed in this regard. The Government, without there being any discussion on the merits, issued a cryptic order resuming the property from M/s. St. Vincent Industrials, finding that the purpose for which the acquisition was made has not been achieved. Further it was ordered that the resumed property can be utilized for any Government purposes. Meanwhile the additional 6th respondent had also filed another writ petition before this court as O.P. No.1338/1998 seeking to restrain any assignment or re- conveyance of the land to M/s. St. Vincent Industrials. There was an interim order passed in that case, in CMP No.2429/1998, staying any such action.
6. M/s. St. Vincent Industrials had filed the first case challenging Ext.P7 Government order through which the land was ordered to be resumed. Contention raised in the said writ petition is mainly relying on the terms of Ext.P1 agreement. Learned counsel for the petitioner had drawn attention to clause 3 in Ext.P1 agreement, which is extracted below;
“3. The terms upon which the said lands shall be held by the Industrials are (a) that the land shall be used for the Industrial Training Centre's class rooms, workshed, office, hostels (b) that the Industrials shall pay to the Government of Kerala annually the appropriate assessment or ground rent, as the case may be, on the land which shall be liable for revision at any general of the land revenue settlement, (c) that in the event of the Industrials being wound up or in the event of failure on the part of the Industrials to carry out the terms of the agreement, the land shall be liable to be resumed and taken back by the said Government or repayment to the Industrials of the amount of award as finally settled less the 15 percent awarded for compulsory acquisition or the estimated market value of the land at the time of resumption whichever shall be less and if there are any buildings on the land the said Government may at their option either purchase the buildings on payment of their estimated value at the time or direct the Industrials to remove the buildings at its own cost within such time as may be allowed by the said Government (d) that in the event of voluntary relinquishment of the land by the Industrials as not required for the purpose for which it is acquired, the Government may resume the land if it is required for a public purpose or if they consider that it should be returned to the original owner. If the Government decide not to exercise this power and inform the Industrials accordingly, the latter may dispose of the land in any manner it likes. In the event of the resumption of the land under the condition, the compensation payable to the Industrials shall be the value of land at the time of acquisition (less the 15% award for compulsory acquisition) or its value at the time of resumption whichever may be less together with the value of the buildings and other improvements at the time of resumption. If there are buildings on the land which the Government do not require, the Industrials shall remove them as its cost.”
7. It is pointed out that, in the event of failure on the part of the Industrials to carry out the terms of the agreement, the property is liable to be resumed by the Government on repayment to the Industrials the amount of Award as finally settled less 15% awarded for compulsory acquisition or the estimated market value of the land at the time of resumption, whichever is less. Further such resumption can be made only by purchasing the buildings if any situated in the land on payment of their estimated value or after directing the Industrials to remove the building at their own cost, within such time. It is pointed out that the resumption now ordered by the Government is without following any such procedure. No notice was issued to the Industrials pointing out any failure on the part of them to carry out the terms of the agreement. Nor the resumption is made after giving value as stipulated in the agreement.
8. It is further contended that, the terms of clause 3 of the agreement is not in operation at the time when the resumption was ordered. By virtue of clause 2 of the agreement the land in question stood absolutely transferred into the Industrials and absolute title was assigned to them based on the fact that the cost of the land as settled in the land acquisition award and the enhancement granted in appeal, was already paid by the Industrials. In this regard, emphasis was made to clause 1 & 2 of the agreement, which are extracted below;
“1. The industrials shall pay to the Government of Kerala before the said land is transferred to the industrials, the cost of the land as settled by the Collector, or if any reference is made to the Court, by the final Court of Appeal, and all costs of acquisition inclusive of all payments and allowance in respect thereof payable under the said act and all court costs and pleader's fees etc., incurred by the said Government in defending the reference if any, made to the court as aforesaid and on appeal or appeals filed in connection therewith and all costs, pleader's fees, etc. payable or paid by the said Government to the claimant in the said matters. The said Government shall not be bound to give possession of the land until all the said moneys have been paid and may withdraw from the acquisition and in the case of withdrawal the industrials shall be liable to indemnify the said Government against all expenses incurred and damage sustained of the result of anything done by them in the matter of acquisition till the date of withdrawal.
2. Upon such payment by the industrials the Governor shall execute and do all such acts, deeds, matters and things as may be necessary or proper for effectively vesting the said land in the industrials and, giving the Industrials an absolute title thereto subject to the payment of the assessment or ground rent as hereinafter provided.”
It is contended that since the entire value has already been paid by the Industrials, the resumption made by invoking clause 3 is not sustainable.
9. Petitioner in the subsequent writ petition is the son of the additional 6th respondent. He had submitted a petition before the Secretary to Government, Revenue Department, seeking to get back the property, based on the contention that the acquisition effected during 1962 was illegal since the invocation of Section 17 (2) to dispense with the procedure contemplated under Section 5 (a) was illegal. Contention is that, the acquisition was made for a society and for a public purpose. But the land was kept idle for more than 50 years. It is alleged that the society was not in existence at the time of issuance of Section 4 (1) notification and the society was registered only in the year 1978. In the petition filed before the Government on 26-02- 2013 it was pointed out that the land was ordered to be given back to the additional 6th respondent, but this court had quashed the order in O.P. No.17209/1993 filed by M/s. St. Vincent Industrials.
10. It is evident that the petitioner himself had approached this court in an earlier writ petition, WP (c) No.23285/2012, challenging Section 4 (1) notification and seeking a writ of prohibition restraining the Government from utilizing the land for any other purpose. The said writ petition was disposed of through judgment dated 12-12- 2012 (Ext.P1 in the subsequent case). This court found that the land was acquired during the year 1962 and the acquisition proceedings were completed long back.
Therefore it has to be held that the land stands vested in the Government. But it is observed that, since the land has not been utilized for any purpose during the last 50 years as evidenced from certain photographs produced, it is only appropriate for the Government to consider the petitioner's request for giving back the land to its original owner, especially in view of the stipulations contained in the agreement executed under Section 41. Hence the writ petition was disposed of by directing the Secretary, Revenue Department of the Government to enquire into the complaint of the petitioner with reference to the records available, relating to the acquisition in question and also considering the terms of the agreement. Exhibit P2 (produced in the subsequent writ petition) is the consequential order passed by the Government. The Government found that as per the existing Rules any land acquired cannot be returned to the owner even if it was not utilised for the purpose for which it was acquired. In this regard reference was made to G.O (MS) No.387/2000/RD dated 22-12-2000. The Government found that the land was acquired for the use of M/s. St. Vincent Industrials. At the time of the acquisition, the Roman Catholic Diocese of Calicut was registered as a society. It was registered on 23rd June 1931. In the Memorandum of Association of M/s. St. Vincent Industrials, registered in 1978, it is clearly stated that it was formed for the take over of various charitable institutions from the Roman Catholic Diocese of Calicut and for maintenance, up keep and development. Therefore it was found that the society was registered before issuance of Section 4 (1) notification. Hence the request of the petitioner for reconveyance of the land was held to be not maintainable. The petitioner is challenging Ext.P2 order of the Government in the subsequent writ petition. He also challenges the Government order dated 02-02-2007 which is impugned in the first case.
11. Contentions in the subsequent case is mainly that the acquisition proceedings was vitiated by fraud. Petitioner pointed out certain discrepancies in the Section 4 (1) notification, in the Section 6 declaration, and in the agreement executed under Section 41. It is pointed out that the purpose shown in Ext.P4 (Section 4 (1) notification) is, “for the Industrial Training Centre, St. Vincent's Industrials, Kozhikode”. Whereas in Ext.P5 (Section 6 declaration) it is mentioned that the entire amount is to be paid out of the funds of “St. Vincent's Industrials, Charitable Institutions, Calicut.” The agreement (Ext.P6) was executed by the Government with “St. Vincent's Industrials, Charitable Institutions, Calicut owned by the Roman Catholic Diocese of Calicut, a society registered under Societies Registration Act XXI of 1860 and having its registered office at Bishop's House, Malaparamba, Calicut-9”. The petitioner, who appeared in person, contended that the discrepancies in the above said documents itself will reveal the fraud committed. It is contended that the Government was taking different stand at different point of time with respect to the acquisition. According to the petitioner, the acquisition was for M/s. St.
Vincent Industrials, Kozhikode. Referring to various provisions in the Land Acquisition Act it is contended that, the acquisition could have been made only if the “public purpose” included any educational scheme, either sponsored by the Government or run with prior approval of the Government by a society registered under the Societies Registration Act, 1860 or registered under any corresponding law for the time being force in the State. Referring to Section 3 (cc) of the Land Acquisition Act, 1894 it is further contended that the expression “corporation owned or controlled by the State” will include only a Society registered under the Societies Registration Act, 1860 or under any corresponding law for the time being in force in State. Since M/s. St. Vincent Industrials was not a society registered at that time and since the acquisition was not for any educational purpose approved by the State Government, the 'public purpose' mentioned in section 4 (1) notification was not a public purpose coming within the purview of the Land Acquisition Act.
12. Per contra, learned counsel for the petitioner appearing for M/s. St. Vincent Industrials contended that they were functioning under the Roman Catholic Diocese of Calicut which was a society registered as early as in the year 1931 and hence M/s. St. Vincent Industrials can be considered as a society registered even at the time of acquisition. Further it is contended that the acquisition proceedings cannot be challenged by the petitioner at this point of time since the predecessor in interest had failed in such challenges raised before this court.
13. Before considering merits of the contentions on the aspects, raised in the subsequent writ petition, a more basic question regarding maintainability of the said writ petition need to be considered. The acquisition was during the year 1962. The owners of the property from whom the land was acquired had challenged the proceedings in OP No.943/1963 filed before this court. This court found that there is no substantial infirmity in the acquisition proceedings. Agreement executed under Section 41 was also subjected to challenge in that writ petition. This court found that there was substantial compliance of the provisions of Section 41. Subsequent to dismissal of the said writ petition the original owners have accepted compensation with respect to the acquisition. Further, in the year 1989 one among the original owners (additional 6th respondent) had approached this court seeking resumption of the property based on an allegation that there is non- untilization of the land for the purpose for which it was acquired, in violation of the terms of the agreement. The relief sought therein was only for resumption of the property and to give back the property to the person from whom it was acquired. Evidently, one can seek resumption of the property as its original owner, only if it is accepted that the land was acquired and it stood vested in the Government. In a subsequent writ petition filed by the additional 6th respondent and another (O.P No.17377/1993) they again sought for return of the property on the basis that it remained unutilized for the purpose for which it was acquired and also on the basis that there occurred violation of the terms of the agreement. The Government have taken an ultimate decision in the said matter by virtue of Ext.P7 order passed on 02-02-2007, declining the request for return of the land.
14. With respect to petitioner in the subsequent case, even if he got any interest or claim in the property, it is only by virtue of the fact that he is a legal heir of the original owners from whom the land was acquired. Whether any actionable claim against the acquisition proceedings existed and got inherited to the petitioner, is the crucial question. Sri. Aboobacker Koya along with the additional 6th respondent were unsuccessful in their challenges against the acquisition proceedings. All such challenges were concluded against the owners of the property in 1964 itself and judgment in that respect had attained finality. When the additional 6th respondent had sought for resumption and return of the property, can the petitioner now raise a contention challenging validity of the acquisition is the issue to be decided. More than 52 years have lapsed since the acquisition. The challenge raised by the original owners against the acquisition proceedings had attained finality by virtue of judgment of this court in OP No.943/1969, dated 31-08-1964. This court is of the considered opinion that the issue remains settled in the said decision and remains barred by principles of res judicata. The petitioner is totally estopped from raising any challenge against the acquisition proceedings. More over, it is pertinent to note that in the judgment in W.P (c) No.23285/2012 (Ext.P1) there is a specific finding that the land was acquired during the year 1962 and the acquisition proceedings were completed long back, and that the land stands vested in the Government. Therefore the petitioner could not agitate the same issue, once again.
15. The petitioner argued that, challenge against the acquisition is still left open because the proceedings is vitiated by fraud committed by M/s. St. Vincent Industrials. Contention is that any proceedings which is vitiated by fraud will become a non-est in the eye of law, notwithstanding confirmation of such proceedings through verdicts of court or notwithstanding lapse of any considerable time. For alleging fraud in the acquisition, the petitioner is relying on the fact that M/s. St. Vincent Industrials was not a registered society at the time of acquisition and hence there was no public purpose existed as contemplated under the Act. Further it is pointed out that the Government had not acted in any legal and proper manner as evident from Exts.P4, P5 & P6, in which the name and description of the party for whom the acquisition was made, deferred considerably. According to him, for arriving at a conclusion regarding existance of fraud, the court need only to consider the circumstantial evidence and the court can take judicial notice of the fraud committed, for the purpose of setting right such proceedings vitiated.
16. The factual circumstances as narrated above will indicate that, the original owners have failed in their challenge, despite all possible contentions raised, and that they have subsequently accepted the compensation for the acquisition. They have sought for resumption and return of the property after accepting the acquisition and after accepting the fact that the property stood vested in the Government by virtue of the acquisition. This court do not find any convincing materials to quash the acquisition proceedings which took place in the year 1962 holding that such proceedings was vitiated by fraud. The petitioner who appeared in person had produced various decisions of the hon'ble Supreme Court in which it is held that if fraud had vitiated any particular action it will nullify such action notwithstanding confirmation given by any verdicts of court and that principles of res judicata or estoppal or limitation will not stand in the way of the courts interfering with such proceedings. But on the facts as mentioned above, this court is not satisfied that there existed any convincing circumstances to hold that the entire proceedings of the land acquisition which completed in the year 1962 was vitiated by fraud. Further, the challenge raised by the petitioner himself was already negatived by this court in Ext.P1. Hence this court is inclined to hold that the issue is barred by principles of res judicata and the petitioner is estopped from raising any challenge against the proceedings of acquisition.
17. Coming back to the question regarding resumption and return of the land, this court is inclined to accept the contention raised by the petitioner in the first case. Before ordering resumption of the land from M/s. St. Vincent Industrials, none of the procedure contemplated under clause (3) of Ext.P1 agreement was complied with by the Government. More over the contention that the resumption was not possible based on payment of the entire land value and assignment of title in view of clause (1) and (2), has not been considered by the Government. Hence the findings contained in Ext.P7 order cannot be sustained as legal and valid.
18. Therefore W.P (c) No.36318/2008 is allowed to the extent of quashing Ext.P7 order passed by the Government. Since this court had set aside the said order dated 02-02-2007, challenge raised in W.P (c) No.30665/2013 against the subsequent order passed on 04- 11-2013 (Ext.P2 in that writ petition) also fails. This court is not at all persuaded to accept any of the contentions to hold that the acquisition proceedings completed in the year 1962 is vitiated in any manner. In the result, W.P (c) No.30665/2013 is hereby dismissed.
19. However, it is made clear that, the above judgment will not stand in the way of the Government taking any appropriate action for resumption of the land based on violation of the terms of the agreement if any, committed by M/s. St. Vincent Industrials, to the extent it is permissible under law and under the terms of the agreement.
AMG Sd/-
C.K. ABDUL REHIM JUDGE True copy P.A. to Judge