Point of Law: Cultivating tenant basically contending that the tenancy is exempted in view of Section 3(i)(viii) of Chapter II of the Act, 1963 and therefore, the lessee is not entitled to fixity of tenure.

JUDGMENT :

Shaji P. Chaly, J.

The appeals are materially connected in respect of land acquisition proceedings initiated against an extent of 5.6680 hectares of land (75 acres) situated in Survey No. 5/2 of Periya Village, Mananthavady Taluk, Wayanad District as per a notification dated 03.06.2013 issued under Section 4(1), after invoking the urgency clause under Section 17 (4) of the Land Acquisition Act, 1894 ('Act, 1894' for short), on the direction of the State Government for the establishment of the campus of Sree Chithira Thirunal Institute of Medical Sciences; retraction from the same by the State Government stating that the Government is entitled to resume the land from the cultivating tenant by virtue Section 72 of the Kerala Land Reforms Act 1963 (‘Act, 1963’ for short); and the rival claims raised by the cultivating tenant and landlord for compensation on acquisition.

2. Therefore, we heard them together and proposed to pass this common judgment. Appellant in W.A.No. 196 of 2016 is the lessee, a company incorporated under the Companies Act, 1956 and claims protection and benefits of the Act 1963, and the appellants in W.A.No. 500 of 2016 are the landlords. They are filed challenging the common judgment of the learned single Judge dated 28.10. 2015, dismissing W.P.(C) Nos. 28694 and 28831 of 2015 respectively, but leaving open the liberty of the parties to approach the competent civil court. Exhibits relied upon for disposal of the appeal are as marked in W.P.(C) 28694 of 2014, filed by the appellant/tenant. For convenience, the parties in appeals are referred as lessee and landlords respectively.

3. Shorn of unnecessary details, basic facts required for disposal of the appeals are as follows:-

It seems, sanction was accorded by the State Government to the District Collector, Wayanad as per a Government Order dated 02.11.2012 to invoke the urgency clause under Section 17(4) of Act, 1894, and acquire the land in question; and accordingly preliminary notification under Section 4(1) of the Act, 1894 was issued; however, quite contrary to the same, as per Ext. P7 letter dated 19.08.2014, the Principal Secretary to Government, Revenue (B) Department, Government of Kerala, directed the District Collector, Wayanad to resume the land and take advance possession without paying any compensation for the land, but after paying the value of improvements to the lessee, the appellant in W.A.No. 196 of 2016, which has purchased the leasehold right of 99 years over the property from one V.J. Joseph, the original tenant under the landlords, since the Jenmom right is vested with the Government. Thereafter, Ext.P8 letter dated 30.08.2014 was issued by the Secretary directing the District Collector to send a proposal for allotment of fund, to the Health and Family Welfare Department after calculating the value of improvements alone, since the land is to be resumed under Section 72 of the Act, 1963.

4. At the outset, it is clarified that the writ petitions leading to the appeals were dismissed by a learned single Judge as per the common judgment dated 28th October, 2015 in W.P.(C) Nos. 28694 and 28831 of 2014 holding that the issues raised in the writ petitions by and between the landlords and the lessee are disputed questions of fact, which are unable to be decided in a proceedings under Article 226 of the Constitution of India, however permitting the parties to approach the competent civil court seeking appropriate relief in respect of their claims with the Government as well as inter se and further directing the State Government to deposit the entire amount relating to the value of the improvements before a Nationalized Bank in a Fixed Deposit and to produce the Fixed Deposit receipt before the court, in the suits to be filed by the appellants as permitted. The judgment of the learned single Judge was affirmed by a Division Bench of this Court as per a judgment dated 4th April, 2018, which was challenged before the Apex Court by the lessee.

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