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IN THE HIGH COURT OF KERALA
A. MUHAMED MUSTAQUE, J.
Harrisons Malayalam Ltd. - Petitioner
Versus
State of Kerala and others - Respondents
W.P.(C) No. 4877 of 2014
Decided On : 15-10-2014
The right of an encroacher to continue possession of land under the Land Conservancy Act is limited and contingent upon certain legal and procedural conditions. According to the legal principles outlined in the provided document, the following points are relevant:
Distinction Between Occupation and Possession: Occupation refers to actual use or physical occupation of the land, whereas possession involves control and interest in the land. The mere occupation does not automatically establish legal possession (!) .
Jurisdictional Facts: Proceedings under the Land Conservancy Act can only be initiated if the land in question qualifies as "Government land" and if the government is in legal possession of that land. The determination of whether the land is "Government land" and whether the government is in legal possession is crucial before any eviction or dispossession can occur (!) (!) .
Preliminary Objections and Jurisdiction: Encroachers or occupants can raise preliminary objections regarding the jurisdiction of the authority to initiate proceedings. Such objections must be considered, and the authority is directed to decide on these objections before proceeding with eviction (!) .
Final Decision and Eviction: The encroacher's continued possession is protected only until a final decision is made by the competent authority regarding the jurisdiction and the legality of the occupation. The authority must address the preliminary objections and determine whether proceedings are valid. Only upon a final decision establishing the illegality of the occupation can eviction be ordered (!) .
Protection During Proceedings: During the pendency of the proceedings, including the consideration of jurisdictional objections, the encroacher cannot be evicted. The court or authority has directed that eviction should only occur after a final decision confirms the illegality of the occupation (!) .
In summary, an encroacher's right to continue possession is protected during the initial stages of legal proceedings, provided they raise valid jurisdictional objections and the authority properly considers these before issuing any eviction order. The encroacher's possession can only be legally terminated following a final, lawful decision confirming the occupation's illegality and the authority's jurisdiction to act.
A. MUHAMED MUSTAQUE, J.
1. These writ petitions are filed by M/s. Harrisons Malayalam Limited challenging various actions initiated by the State under the Kerala Land Conservancy Act, 1957 (for short, Land Conservancy Act). The writ petitions 4877/2014 7516/2014 and 13037/2014 are filed challenging notices issued under the Kerala Land Conservancy Act and threatened dispossession from the properties mentioned in the notices. W.P.(C). No.17351/2014 is filed seeking a direction commanding the third respondent-Special Officer and Collector, the authority appointed under the Land Conservancy Act by the Government to initiate action against petitioner in terms of Section 15 of the Land Conservancy Act to consider the issue regarding jurisdiction. Therefore, all issues are pertaining to the actions initiated under the Land Conservancy Act and this Court finds that it is appropriate to dispose these writ petitions by a common judgment.
2. The petitioner is a company incorporated under the Companies Act. The company claims to have acquired large extent of properties in the State of Kerala and Tamil Nadu which are mainly rubber and tea plantations. According to the petitioners, they have acquired these properties in the year 1800 and early 1990s and they claim that these are freehold land or leasehold land. Petitioner also claims that in respect of leasehold land, they have fixity of tenure in terms of Kerala Land Reforms Act, 1963.
3. Two writ petitions were filed before this Court as Public Interest Litigation, namely, W.P.(C). No.14251/2012 and 213/2013 seeking for a direction to the Government to resume the lands in possession of the petitioner in terms of Land Conservancy Act. This Court by common judgment disposed the writ petitions on 28/02/2013 with the following directions:
"10. We may also record the submission of the learned senior counsel for HML that in cases where LC Act proceedings are to fail on a jurisdictional issue, the Company or the person notified of such proceedings would have the authority to challenge such proceedings on a jurisdictional issue and that in given situations, it would be for the State to sue and seek for declaration and other reliefs through the civil court rather than initiate proceedings under the LC Act.
11. ......if the competent authority or authorities in the State Administration as are authorised in terms of the provisions of the LC Act, decide to initiate action against any of the properties in the possession of HML or any of its transferees or persons in occupation, they may be do so strictly in accordance with law. If such authority concludes that action has to be so taken, let steps be initiated within a period of two months from the date of receipt of a copy of this judgment. ...."
While disposing it was observed that if the proceedings are initiated under the Land Conservancy Act and the authority feels that proceedings under the Land Conservancy Act are liable to fail on jurisdictional issues, it would be for the State to sue and seek other relief through the civil court rather than initiating proceedings under the Land Conservancy Act.
4. Ext.P9 in W.P.(C).No.17351/2014 is a copy of the written argument advanced from the side of petitioner before the Special Officer and Collector questioning jurisdiction. It is raised on a preliminary issue. It is alleged by the petitioner that the Special Officer has no jurisdiction to decide the nature of the issue involved in the matter. The essential argument is that there must be a jurisdictional fact which empowers the Authority to proceed under the Land Conservancy Act.
5. In these writ petitions, petitioner apprehends that without considering the preliminary objections raised on jurisdiction, the petitioner will be dispossessed from the properties mentioned in the notices. The State has filed a detailed counter affidavit in this matter adverting to jurisdiction and questioning the maintainability of the writ petition. According to the State
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