Decided on October 06,1993

STATE Respondents


Jagannadha Rao, CJ. - (1.)THE Writ Petitioner, Mr. Kunju Warner, since deceased, and now his legal representatives are seeking to get back possession of 3. 90 acres of land which was taken over in 1944 for the purposes of the Second World war under the Defence of India Act, 1939. On 21-7-1947 the Madras Government gave possession of the property, along with other land to the Metal Industries ltd. , Shornur, on lease. In 1958 the State of Kerala entered into a lease agreement with owners. Rent fell in arrear from the Government to the owners and likewise, the company, which was in the position of a sub-lessee, failed to pay rent to the government, as the company became sick and was declared as such under the kerala Relief Undertakings (Special Provisions) Act, 1961 (Kerala Act 6/62 ). During the period from 1950 to 1971, the State of Madras and then the State of Kerala made various attempts to acquire the land under the Land Acquisition Act, 1894, but either the proceedings were allowed to lapse or were cancelled.
(2.)SO far as the title of the petitioners, successors of mr. Kunju Warrier, for the property is concerned, the position is this. Originally the property belonged in jenm to Kavalappara Moopil Nayar but there was an outstanding kanom in favour of Mr. Kunju Warrier, the deceased writ petitioner. On the commencement of the Kerala Land Reforms Act, 1963 (Act 1 of 1964), the jenm rights of the said Kavalappara Moopil Nayar vested in the State of Kerala while the kanom rights of Mr. Kunju Warrier remained, subject to the provisions of the Kerala Land Reforms Act, 1963. A point has been raised in the counter affidavits of the State of Kerala and of the company (but not argued)that Mr. Kunj u Warrier, the holder of the kanom rights, had not been in possession when Kerala Act 1/1964 came into force, but that the 2nd respondent company was in possession, and that hence the kanom rights of Mr. Kunju Warrier did not get enlarged.
The other aspect that falls for consideration is whether, in view of the written statement filed by the State of Kerala in o. S. No. 7 of 1983, Munsiff's Court, Ottappalam, that being a suit filed by Mr. Kunju Warrier for rent against the State, and the State having admitted the relationship of landlord and tenant, it is open to the State to deny the title of Kunju Warrier. In fact, as stated earlier, between 1950 and 1971, the State of Kerala issued notifications to acquire the property under the Kerala Land acquisition Act, 1961 by notification dated 16-5-1967 and a notice was issued to Kunju Warrier on 9-6-1967 as per Ext. P4 and the latter filed objections as per Ext. P5 dated 27-6-1967. The proceedings lapsed and again fresh notification and notice issued to Kunju Warrier under Ext. P6 dated 4-5-1971. Question is whether the State of Kerala or its lessee can now deny the title of kunj u Warner, the deceased writ petitioner, who was holding the kanom rights before the Kerala Land Reforms Act, 1963 (Act 1 of 1964 ).

Yet another question is whether, on the face of the decision of the Supreme Court in Union of India v. Ramkanwar, AIR 1962 SC247, the State of Kerala can resist to deliver back possession to the petitioners after the war purposes of 1944 ceased.

(3.)THE company (2nd respondent) has raised a contention that it was in possession when the Kerala Land Reforms Act, 1963 (Act 1/1964)came into force, may be, as lessee of the State of Kerala, and hence, it is entitled to remain in possession under S. 106 of the Kerala Land Reforms Act, 1963 as a body which had a lease in its favour (though from Government of kerala) for 'commercial or industrial purpose' and as it is claiming to have constructed buildings for such commercial and industrial purposes before 20-5-1967 and is liable only to pay rent, to be varied once in 12 years. This is the other aspect for consideration. Here, a question also arises whether the decision of the Appellate Land Tribunal (Ext. P16) dated 31-8-1984 does not operate as res judicata against the company.
Summarising the points that arise for consideration, they are as follows: (1) Whether Kunju Warrier (1st petitioner, since deceased) and of his successors have title to the property in view of the fact that the State has accepted in its written statement in O. S. No. 7 of 1983 that mr. Kunju Warrier was its lessor, and the State has issued land acquisition notices on that basis? (2) Whether, after the war purposes of 1944 ceased, and the 1958 lease to State was terminated in 1979, the State was not bound to restore possession to the owners in view of the Supreme Court's decision in union of India v. Ram Kanwar, AIR 1962 SC 247? (3) Whether the 2nd respondent -company can rely on S. 106 of the Kerala Land Reforms Act, 1963 and resist eviction by the owners, even though the company was not a lessee of the owners, but the State of Kerala was the main lessee and the company was only a lessee of the State and whether there is proof of any constructions by the company before 20-5-1967 and whether the decision of the Appellate Land Tribunal (Ext. P16) dated 31-8-1984, does not operate as resjudicata against the company?


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