IMPORTANT POINT
The court established that the State must prove legal possession before exercising summary eviction powers under the Kerala Land Conservancy Act.

JUDGMENT :

A.K. Jayasankaran Nambiar, J.

1. As all these cases involve a common issue, they are taken up together for consideration and disposed by this common judgment. For the sake of convenience, we shall refer to the facts in W.P.(C).No.731 of 2019, from which W.A.No.2227 of 2019 arises.

2. The writ petitioners had earlier approached this Court through W.P.(C).No.9216 of 2011 challenging the notices issued to them by the Tahsildar, Vythiri Taluk in Form 'C' under Rule 11 of the Kerala Land Conservancy Rules [hereinafter referred to as the “Rules”]. By a judgment dated 16.06.2017, the said writ petition was disposed by quashing the impugned notices and directing the Tahsildar to hear the parties concerned, consider their objections and pass a reasoned order adverting to the said objections. It would appear that the Tahsildar thereafter heard the writ petitions and passed an order dated 03.05.2018 followed by fresh notices in Form 'C' under Rule 11 of the Rules. The said order and notices were impugned in the writ petition.

3. The challenge in the writ petition was essentially threefold, in that it was contended (i) that the Tahsildar (LR) had no jurisdiction to act as a “Collector” under Section 15 of the Kerala Land Conservancy Act [hereinafter referred to as the “Act”] and to pass the order that was impugned in the writ petition; (ii) that the Tahsildar had not adverted to the jurisdictional fact required to be established before passing the impugned order; and (iii) that the Government could not disturb the settled possession of the land through the Land Conservancy proceedings without first ascertaining the true nature of such possession.

4. The learned Single Judge, who considered the writ petition, rejected the contention regarding lack of jurisdiction in the Tahsildar, based on Government orders that had been issued which clarified the matter. However, he found in favour of the writ petitioners on the other two grounds of challenge based on the judgments of this Court in Harrisons Malayalam Ltd. v. State of Kerala,2014 (4) KLT 371; Banerjee Memorial Club v. Taluk Tahsildar,2016 (1) KLT 241; Harrisons Malayalam Ltd. v. State of Kerala,2018 (2) KLT 369and Shahul Hassan Musaliyar T.K. v. State of Kerala and Others, 2015 (4) KHC 615and held that, prior to invoking the power to summarily evict under Rule 11 of the Rules, the Government was required to demonstrate that it was in legal possession of the land and that the occupier of the land was in unauthorised occupation. Differentiating between the concepts of 'legal possession' and 'actual possession', it was found while it was clear that the writ petitioners were in actual possession of the land, there was no clarity with regard to the legal possession, and hence, the Government, in the absence of an established legal possession over the land, could not resort to the power under Section 11 of the Act. The writ court also considered the submission of the learned Additional Advocate General that the land in question had been identified for establishing a Government Medical College in Wayanad and that steps were being contemplated for invoking land acquisition proceedings in respect of the same. Taking note of the said submission, the writ petition was disposed with the following directions:

“In such circumstances, I am of the view that if the land is required for public purposes, dispensing other statutory formalities, an Award shall be passed computing the compensation. There is no dispute in this case that the land belongs to the Government. The petitioners could only assert a possessory interest in the land. Therefore, they could only claim compensation on proving the nature of the possessory right over the land. Therefore, the Collector shall pass an award and refer the dispute under Section 64 of the Right to Fair Compensation