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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ashok Bhushan and A.M. Shaffique, JJ.
Banerjee Memorial Club - Appellant
Versus
Taluk Tahsildar – Respondent
W.A. No. 2423 of 2008 (C) in W.P.(C). 28735 of 2008.
Decided on : 25-11-2015
Kerala Land Conservancy Act, 1957 - Sections 5, 11 - Land Conservancy Act, 1951 (T.C.) - Section 10(1) - Constitution of India, 1950 - Article 226 - Property - Ownership of - Whether petitioner was unauthorisedly occupying land - Presumption of - Possession of - Summary proceedings - Unauthorized - Findings of - Held, It shall be sufficient to decide as to whether possession of petitioner was unauthorised so as to initiate proceedings under 1957 Act - Provisions clearly indicate that for occupation of property of Government it is not necessary that person or entity should prove ownership of land which is occupied by him - What was prohibited was that no one shall occupy a Government land without permission - With permission of Government any land could have been occupied - For initiating proceedings under Section 11 of the 1957 Act question to be considered was as to whether petitioner was unauthorisedly occupying the land - Collector and Land Revenue Commissioner thus were unduly carried away by above fact - Mere fact that after issuance of notice under 1957 Act, petitioner adopted course of making an application for assignment cannot lead to presumption that petitioner accepted that their possession was unauthorized - Step of making an application for assignment can at best be treated as an additional course of action - It is held that bona fides of the occupant's claim can be inferred from his occupation for a long period - When a person is in continuous possession of a property for a considerable long time under an assertion of title without any challenge, said possession has to be ascribed of a legal origin
Ashok Bhushan, J.
This Writ Appeal has been filed against the judgment and order dated 16.10.2008 by which W.P(C) No. 28735 of 2008 filed by the appellant has been dismissed. Writ Petition was filed by the petitioner, Banerji Memorial Club (for short, "the Club") challenging orders passed for eviction of the Club from the premises in question under the Kerala Land Conservancy Act, 1957 (hereinafter referred to as "the 1957 Act"). The parties shall be hereinafter referred to as described in the Writ Appeal.
2. Following facts of the case emerge from the pleadings of the parties: The Club, now registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 was established in Thrissur Town on two plots, i.e. 51 5/8 cents in Sy.No. 246/1 and 13 cents in Sy. No. 246/2 of Thrissur Village in the year 1914. The petitioner claimed that the land was gifted by His Highness, the Maharaja of Cochin State for construction of the Club. The first meeting of the Club was held on 17.05.1914 (4th Edavam 1089). The Club was named in memory of the Diwan of Cochin State, A.R.Banerjee, ICS. The first president of the Club was J.W.Bhor, ICS, Diwan of the Cochin State. Construction of the Club building was completed on the aforesaid two plots within a year and the second Board meeting of the Club was held in the Club building on 29.06.1090 (08.02.1915). The Club started functioning since 1914. The Thrissur Municipal Council proposed construction of a Sathram (Inn) by taking a part of the land on which the Club was functioning, i.e., 13 cents by exchanging another plot of land from the Devaswom Board. Petition was sent by the Club to the Government of His Highness, the Maharaja of Cochin State on 08.06.1124 (22.01.1949). The Commissioner, Thrissur Municipality, also sent a letter dated 02.02.1949 to the Government of His Highness, the Maharaja of Cochin State. The Government recorded its proceeding on 17.02.1949 that if the Club site is included in the Sathram, it cannot be helped. The Commissioner of Thrissur Municipality on 19.10.1953 wrote to the Honorary Secretary of the Club asking the Club to give consent for exchange of 13 cents of land in Sy.No. 246/2 with another 13 cents of land owned by the Devaswom on the southern side of the Club building contiguous to the Club compound. The Club communicated its concurrence by letter dated 30.01.1954. The Devaswom Board asked the Secretary of the Club to sent copy of the letter dated 29.10.1953 of the Municipal Commissioner, Thrissur. After several correspondences between the Thrissur Municipality and the Club, ultimately by letter dated 29.06.1956 the Commissioner communicated to the Club about the approval by the Municipal Chairman and Devaswom Board regarding exchange of 13 cents of land with Sy.No. 247/1. The Devaswom Board has also communicated that the Club shall be paid compensation of Rs. 2,500/- towards demolition of the construction and other improvements in the 13 cents of land in its possession. Consequently, 13 cents land was exchanged and the Club was given another 13 cents of land in plot No. 247/1 which the Club continued to be in enjoyment of the aforesaid plot of land with the Club building existing thereon. The Club had also sent a letter to the Municipal Board dated 26.07.1954 seeking sanction of a safety tank in the Club premises. The Municipal Board communicated the said sanction by letter dated 27.08.1954. The Club has been paying water charges and electricity charges to the Thrissur Municipality. The Club premises was also connected with telephone connection by the Department of Posts and Telegraph, Government of India with regard to which payments were also made by the Club. The Club celebrated its Platinum Jubilee in the year 1990. Various correspondences acknowledging celebration of Platinum Jubilee have been brought on record. The Club continued to function in the building situated on the aforesaid plots without any objection
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