Land Law – Defence of India Act, 1971 – Section 3 – Defence of India Rules, 1971 – Rule 9 – Protected Area – From the date of the notification, no person, who was not at the beginning of the date of notification, resident in the area specified in the notification, shall enter the area except in accordance with the terms of a permit issued by the competent authority.
# 2011 (1) KLT SN 68 (C.No. 90) : 2011 (1) KLJ 676 : ILR 2011 (1) Ker. 555 : 2011 (1) KHC 461
IN THE HIGH COURT OF KERALA AT ERNAKULAM
The Hon’ble MR. Justice ANTONY DOMINIC
Dated this the 20th day of January, 2011
WP(C).No. 35610 of 2010(A)
SIVANANDA YOGA VEDANTA DHANWANTARI … Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY CHIEF … Respondent 2. THE SECRETARY, IRRIGATION DEPARTMENT, 3. ASSISTANT EXECUTIVE ENGINEER, 4. THE ASSISTANT ENGINEER, 5. THE TAHSILDAR, TALUK OFFICE,
For Petitioner :SRI.S.SREEKUMAR
For Respondent :GOVERNMENT PLEADER
J U D G M E N T
Petitioner is Sivananda Yoga Vedanta Dhanwantari Ashram. In this writ petition, they challenge Ext.P18, an order passed by the first respondent Government.
2. 5 chain belt area of land situated near to the Neyyar Dam was acquired by the Government under the provisions of the Land Acquisition Act on payment of full compensation to the owners and the land so acquired were leased out to the original owners themselves, subject to the condition that they will prevent soil erosion by planting soil binding trees, based on the directions issued by the Soil Conservation Department. In pursuance to the above, 4.5 acres of land belonging to one Ayyappan Pillai was also acquired and the land was given on lease to Ayyappan Pillai himself, subject to the aforesaid conditions. These are evident from Exts.P2 and P3 orders issued in 1961. According to the petitioner, Ayyappan Pillai continued in possession of this land, planted various trees and constructed a small temple and being a devotee of the petitioner Ashram, he was also engaged in its activities. It would appear that after the expiry of Ayyappan Pillai and his son, the petitioner retained possession of the land, maintaining the temple, other structures and the plantation and was using the land for its spiritual activities.
3. According to the petitioner, some time during January, 2010, an attempt was made by the respondents to auction the usufructs in the land. At that stage, petitioner approached the Government objecting to the proposed auction. Having failed to secure any order, they approached this Court by filing W.P.(C) No.3531/2010. In that writ petition, interim orders were passed, restraining the respondents from proceeding with the auction and the case was finally disposed of by Ext.P15 judgment, directing consideration of a representation made by the petitioner to lease the land to them. In pursuance to the directions in the judgment, petitioner was issued Ext.P16 notice for personal hearing. In response to the notice, they appeared and submitted Ext.P1 application requesting to lease the land for a period of 99 years. Their request was considered and was rejected by Ext.P18 order. In Ext.P18, the following findings have been entered into by the respondents:-
“Various aspects pointed out by the petitioner in the representations Exts.P7, P8 and P12, deposition dated 10-08-2010 and all the contentions raised at the hearing dated 10-08-2010 were subjected to indepth examination by Government in consultation with the Chief Engineer, Project II, Irrigation Department and with reference to the connected records and reports of Irrigation Department and Revenue Department, related to this case. The following findings are made:-
(1) The status of the land possessed unauthorisedly by the Ashram is the land ‘acquired’ by Government for the construction and maintenance of the Neyyar Dam.
(2) Sri.Ayyappan Pillai, the original lessee and his successors have no legal authority to transfer Government (acquired) land to the Ashram.
(3) Ext.P2 + Ext.P3 are submitted by the Ashram to claim their right of ownership purchased from Sri.Ayyappan Pillai.
But it is null and void due to the following in items No.(4) and (5):-
(4) Ext.P2 in the W.P. is Letter No.A4/504/62(C) dated 17-11-1962 of the Executive Engineer, Irrigation Division, Thiruvananthapuram to the Superintending Engineer, Irrigation South Circle, giving report on the request of Sri.Ayyappan Pillai for exempting his land from acquisition. It is only for consideration “after contour bunding is completed and Tapioca Cultivation is stopped by the cultivator”. Therefore, this letter is not an order assigning any legal right of ownership over the Government acquired land to Sri.Ayyappan Pillai, his successors or to the subsequent possessor, the Ashram.
(5) Ext.P3 in the writ petition is the copy abstract of G.O.(MS)494/61 dated 19- 05-1961 of th Revenue Department, stipulating guidelines for the conservation of the Neyyar Dam 5 chain belt area and provision of land for the displaced persons. The land is spared on lease basis. For the lessees, the vital condition is that the “land should be planted with soil binding trees to prevent soil erosion”. As this order provides only right of lease, this order is not assigning any legal right of ownership to Sri.Ayyappan Pillai (the original lease holder) or his successors, enabling transfer of ownership and land to the Ashram.
(6) In Ext.P3 i.e, G.O(MS) 494/61 dated 19-05-1961 condition No.IV is that “persons who are not agreeable to the above conditions will be evicted.” Here, as evident from the records there exists 2 buildings bearing building Nos.227/3 and 226/3. This is a clear violation of condition No.IV, for which eviction of unauthorized occupants are to be effected. The District Collector, Thiruvananthapuram will initiative urgent action for the eviction of occupants from the above land.
(7) Ext.P4 and Ext.P5 are submitted by the Ashram to claim their “right of possession”.
But it is null and void due to the following in items (8)and (9):-
(8) Ext.P4 is the extract of building tax register of Kallikkad Panchayat and Ext.P5 is a “certificate of possession” issued by the Kallikad Grama Panchayat. The issuance of building Numbers proved that the Panchayat authorities abetted the crime of unauthorized constructions carried out by the Ashram in the forbidden land.
(9) Ext.P5 is a “Possession Certificate” issued by the Kallikad Panchayat. The Village Officer of the Revenue Department is the Competent Officer to issue possession certificate. Therefore, the “Possession Certificate” issued by the Kallikad Panchayat is highly irregular. Moreover, it is seen issued by the Panchayat President using office seal. Hence corruption and collusion between the Panchayat authorities and Ashram are very visible. Since it is seen that it is after knowing fully well that the Ashram has no legal right of ownership over the land, the Panchayat permitted constructions, assigned building Numbers and even issued Possession Certificate. Therefore, the Director of Panchayat will enquire the irregularities and initiate steps to cancel the Possession Certificate and for the demolition of unauthorized constructions in the forbidden land.
(10) The Tahsildar, Neyyattinkara, Thiruvananthapuram as per Lr.No.G4/22230/01 dated 27-07-2007 has reported with a sketch that Government land to the extent of 1.5 hector in Block 32 of Vazhichal village have been encroached by the Ashram and has recommended to initiate action for the eviction of encroachments. Therefore, the District Collector, Thiruvananthapuram will initiate urgent steps for the eviction of all encroachments.
(11) The Chief Engineer, Project II, Irrigation Department as per Lr.No.WP2/3046/07/D13 dated 03-07-2010 has reported that based on the reports of survey department confirming encroachment, Irrigation Department has numbered the trees in this land and put the auction notice. Then the ashram authorities approached the Hon’ble High Court for staying the auction procedure. But the Hon’ble High Court disposed of the case even without giving any stay, in earlier occasion. Further, the Department issued notice to the Ashram authorities to demolish the unauthorized constructions in the encroached land. Therefore, finding encroachment in the dam site, the Chief Engineer, Project II, Irrigation will initiate action for auction for the usufructs, eviction of encroachments and restoration of land.
(12) The site plan and reports reveal that the encroachment made by the Ashram is not in the 5 chain belt which is beyond saddle. But the Ashram is in between the Neyyar Dam and the Saddle.
(13) Ext.P1 – ie application for assignment of land dated 30-11-2004, the Ashram authorities have admitted that they hold unauthorized possession of land to the extent of 4.5 acres of land. Government land can never be alienated. Therefore, the Director, Survey and land records will conduct survey and report the status of the 4.5 acres of land in RS-1, Vazhichal village, Neyyattinkara Taluk, enabling eviction and restoration.
(14) As per G.O(MS) 329/63 dated 28- 06-1963, issued under Defence of India Rules, 1962, Neyyar irrigation Project area (Item No.4) is a protected area “Area within the boundary fencing put up by the project authorities and the area between the Reservoir and the lands acquired for the Dam and Saddles”. Therefore, no land in the Neyyar Irrigation Project area can be given for long term lease as requested by the Ashram.
(15) The Chief Engineer as per Lr.No.WP2/3046/07/D13 dated 03-07-2010 has reported that a lot of foreigners frequently visit the Ashram. In this protected Area, the Ashram has unauthorizedly constructed a Temple and Mediation room. In view of growing terrorism in India, frequent visits of foreigners cannot be permitted within the Dam site, since any damage to the dam will cause untold misery to the people down stream.
Therefore, based on the above 15 vital findings, it has well been substantiated in evidence that the Sivananda Ashram has no legal right of ownership over the ‘acquired land’ of the Irrigation Department, which is a ‘protected area’ under Defence of India Rules. As such, it is improper for the Ashram to seek stay of the auction proceeding (Exts.P7, P8) initiated by the Irrigation Department for the usufructs, which is presently under the unauthorized Possession of the Ashram. Moreover, the request for long term lease (Ext.P12) cannot be considered, since the land is a protected area. Therefore, Government order that the requests in Exts.P7, P8 and P12 read as 4th paper above does not merit consideration and hence stands rejected. The court order read as 3rd paper above is complied with accordingly.”
4. It is seeking to quash Ext.P18 and to direct the first respondent to consider their representation for long term lease, this writ petition has been filed.
5. Learned counsel for the petitioner reiterated before this Court the contentions urged by them before the Government. According to him, the Ashram was engaged in spiritual activities with particular emphasis on yoga and considering the long and uninterrupted possession and also the fact that the Ashram itself had developed the land in the manner in which it is now seen and constructed the retaining walls, the Ashram should be permitted to retain possession of the land.
6. Learned Government Pleader opposed the prayer of the petitioner. Referring to Ext.R4(d), the notification issued by the Government of Kerala on 28-06-1963, declaring the various irrigation projects as protected areas under the provisions of the Defence of India Rules, 1962, learned Government Pleader contended that, no part of the area covered by the notification could be permitted to be in the possession of strangers. It was also contended that the land in question is admittedly that of the Government and that the petitioner is a stranger, who has no manner of right to retain possession of the land.
7. Admittedly, the land is in the vicinity of the Neyyar Dam. The land was originally acquired from Ayyappan Pillai and was leased out to Ayyappan Pillai subject to the conditions mentioned in Ext.P3 order. Ext.P3 order did not enable the lessee to transfer possession of the land. Therefore, once Ayyappan Pillai has ceased to be in possession, the land ought to have reverted back to the Government, especially when the petitioner has no case that lease was granted in their favour. Therefore, petitioner cannot claim any legal right to retain possession of the land. If so, respondents cannot be faulted if they proposed to auction the usufructs.
8. That apart, Ext.R4(d) is a notification issued under the Defence of India Rules. In the schedule to the notification, Neyyar Irrigation Project has been included as serial No.4 and the description of the area to be protected includes the area within the boundary fencing put up by the project authorities and the area between Reservoir and the land acquired for the Dam and saddles. Admittedly, the land in question situated within the area notified. This notification has been issued under
# Rule 9 of the Defence of India Rules, 1971
which was issued by the Central Government in exercise of its powers under
# Section 3 of the Defence of India Act, 1971.
Rule 9 of the Defence of India Rules, 1971 reads as under:-
# 9. Protected area
(1) If the Central Government or the State Government considers it necessary or expedient to regulate the entry of persons into any area that Government may, without prejudice to the provisions of any other rule, by order declare the area to be a protected of area;and thereupon, so for long as the order is in force, such area shall be a protected area for the purposes of these Rules.
(2) On and after such day as may be specified in, and subject to any exemptions for which provision may be made by, an order made under sub-rule (1), no person who was not at the beginning of the said day resident in the area declared to be a protected area by the said order shall be therein except in accordance with the terms of a permit in writing granted to him by an authority or person specified in the said order.
(3) Any police officer, or any other person authorised in this behalf by the Central Government or the State Government may search any person entering or seeking to enter or being on or in, or leaving, a protected area, and any vehicles, vessel aircraft or article brought in by such person, and may, for the purpose of the search, detain such person, vehicle vessel, aircraft or article : Provided that no female shall be searched in pursuance of this sub-rule except by a female :
(4) If any person is in, or passes over a protected area in contravention of the provisions of this rule, then, without prejudice to any other proceedings which may be taken against him, he may be removed therefrom by or under the direction of any police officer or any member of the Armed Forces of the Union on duty in the protected area.
(5) If any person is in a protected area in contravention of any of the provisions of this rule, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.”
9. Notification itself says that, from the date of the notification, no person, who was not at the beginning of the date of notification, resident in the area specified in the notification, shall enter the area expect in accordance with the terms of a permit issued by the competent authority. Notification is not under challenge. Petitioner also does not dispute the applicability of the notification to the land in question. Admittedly, petitioner came into possession only subsequent to 1963 when the notification was issued. Petitioner has no case of having any permit under Ext.R4(d). If that be so, in view of the provision under the Defence of India Rules, 1971, their occupation cannot be upheld. In such a situation, this Court cannot find fault with the respondents if action is initiated to resume possession of the land. In that view of the matter, I do not find anything warranting interference with Ext.P8.
10. While admitting this writ petition, this Court passed interim order on 29-11-2010 to defer the auction on condition that the petitioner remits ₹1.5 lakhs. Now that this Court has upheld the impugned proceedings, I direct that the amount remitted shall be refunded to the petitioner on the production of a copy of this judgment.
Writ petition fails and it is dismissed.