Kerala
State Cashew Development Corp. Vs. Shahal Hassan Mussaliar & ANR. [2009]
INSC 524 (16 March 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.8247 OF
2001 Kerala State Cashew Development Corporation ..Appellant Versus Shahal
Hassan Mussaliar & Anr. ..Respondents WITH Civil Appeal No.8249 /2001, Civil
Appeal No.8248/2001 Civil Appeal No.8250/2001 Civil Appeal No.8251/2001 Civil
Appeal No.8252/2001
Dr.
ARIJIT PASAYAT, J.
1.
In all these appeals challenge is to the judgment of a Division
Bench of the Kerala High Court in several writ appeals and original petitions.
2.
The High Court referred to the factual position in Writ Appeal
No.1835/97 which was directed against the judgment of learned Single Judge,
dated 4th September, 1997 in O.P. No.16424/94. The High Court noted that the
factual basis in all the cases is similar except the dates and the areas
involved and the location of the factories.
3.
Since the grounds of challenge raised by the appellant and the responses
of the respondents are common, they are taken up together. The background facts
are to be noted in brief:
4.
The first respondent is the owner of a factory situated in an
extent of 2.29 acres of land in Kotttarakkara Taluk of Kollam District. The
factory comprises several buildings like godown, office, shelling and peeling
sheds, grading shed etc. with necessary machineries and equipments installed 2
therein for facilitating the work of the factory. This factory was being run by
the first respondent, up to the year 1969. Sometime in the year 1969, first
respondent who was managing the factory himself, desired to go abroad.
So, he
leased out his factory to the second respondent-Kerala State Cashew Development
Corporation (hereinafter referred to as the `Corporation'), a statutory
corporation set up in the State of Kerala, for development of the cashew
industry. Ext. P1 is the copy of the lease deed dated 17th July, 1970 by which
the cashew factory of the first respondent was leased out to the second respondent
on a monthly lease rent of Rs.1,500/-. The lease was initially for a period of
three years and, on the expiry of the said terms, a fresh lease deed was
executed, which too expired on 16th July, 1976. It is the case of the first
respondent that, while he was running the factory, he used to provide
employment to the workers for about 300 days in a year.
After the
expiry of the lease deed on 16th July, 1976, the first respondent, being
unwilling to further lease out the factory, called upon the second respondent
Corporation to release and hand over the factory and its assets to him. The
Corporation, however, did not release the factory and, in the meanwhile, the
State of Kerala passed the Kerala Cashew Factories (Requisitioning) Act, 1979
(hereinafter referred to as the `Act'). This act 3 was passed for the following
purpose, as indicted in the preamble which reads as follows:
"Whereas
certain cashew factories had been leased out by the owners thereof to the
Kerala State Cashew Development Corporation Limited, which is a company owned
by the Government of Kerala;
And
whereas such cashew factories were at the time of the lease either closed down
or run by persons other than the owners thereof;
And
whereas the term of lease in respect of some of such cashew factories has
expired and the owners of some of such factories are not willing to extend the
terms of the lease;
And
whereas suits have been filed in the courts by the owners of some of such
cashew factories for delivery of possession thereof;
And whereas
in the interests of the workers of the cashew factories it is considered
necessary to enable the said Corporation to continue in possession and
management of such of those cashew factories which if given back to the owners
thereof could not be run properly and in accordance with law and would either
be sold or leased out to private individuals."
4 The
object of the Act appears to be that, there were large number of such cashew
factories which have been leased out to the second respondent Corporation under
leases which had expired and it was intended to legalise the continuing
possession of the lessee Corporation. The preamble to the Act suggests that the
Act was intended to protect the interests of the workers, for which purpose it
was necessary to enable the second respondent Corporation to continue in
possession and management of those cashew factories and further that, if the
factories were given back to the owners they would not be run properly and in
accordance with law, and would either be sold or leased out to private
individuals. Section 3 of the Act gives power to the Government to requisition
a cashew factory in the possession of Corporation under a lease, even if the
lease is current or time expires. Section 3 of the Act, which is the focus of
attention, reads as under:
"3.
Power to requisition cashew factories:
(1) When
the Government IS satisfied that if the owner of a cashew factory which is in
the possession of the Corporation under a lease, whether current or
time-expires, is put in possession thereof, such owner could not run that
factory properly and in accordance with law and would either sell it or lease
it out to any private individual and there would be large scale 5 unemployment
of the workers of that factory or their conditions of service would be
adversely affected, the Government may, notwithstanding any judgment, decree or
order of any court, by order published in the Gazette, requisition that cashew
factory for such period not exceeding five years as may be specified in the order
and may make such further orders as appear to them to be necessary or expedient
in connection with the requisition;
Provided
that before making an order under this sub-section in respect of a cashew
factory, the Government shall give the owner of that factory and every person
interested in that factory a notice of their intention to take action under
this sub- section and the grounds therefor and consider the objection that may
be preferred in pursuance of such notice.
(2) Where
a cashew factory is requisitioned under sub-section (1), such cashew factory
together with all machinery, other accessories and other movable properties as
were immediately before the date of publication of order under sub-section (1)
in the possession of the corporation and all books of account, registers and
other documents relating thereto shall vest in the Government with effect from
the said date.
(3) The
Government may, by order in writing direct that a cashew factory vested in them
under sub-section (2) shall, instead of continuing to vest in them, vest in the
Corporation with effect from such date, not being a date earlier than the 6
date of publication of the order under sub-section (1), as may be specified in
the order.
(4) Where
an order vesting a cashew factory in the Corporation is made under sub- section
(3), all rights, liabilities and obligations of the Government in relation to
such factory shall, on and from the date of such vesting, be deemed to have
become the rights and liabilities and obligations respectively of the
Corporation.
One
salient factor of Section 3 which immediately strikes the eye is that the power
of the State Government to requisition the factory was for such period
"not exceeding five years". In other words, there was a maximum
period of five years upto which the cashew factory could be requisitioned in
pursuit of the objective with which the legislation was enacted. Section 4 of
the Act provides that the Government may at any time release from requisition
any cashew factory requisitioned under Section 3 and upon this happening the
Government shall restore the factory in as good a condition as it was when
possession thereof was taken by virtue of the lease executed by it with the
owner of the cashew factory, subject to the provisions contained in such lease
and to changes caused by reasonable wear and tear and irresistible force.
Section 4 also requires the Government to restore the cashew factory and its
assets on the factory being released from requisition. Section 5 empowers the
Government to determine the rent for requisitioning the factory, in accordance
with the principles laid down therein. Section 11 of the Act bars the
jurisdiction of the Civil Court in regard to any dispute in respect of any
matter which the Government or the second respondent-Corporation is empowered
to determine under the Act and protects action taken in 7 good faith in
pursuance of any power conferred by or under the Act."
5. The
Kerala Cashew Factories (Requisitioning) Act, 1979 was amended by Act 26 of
1985 (hereinafter referred to as `Amending Act').
Section 2
of Amending Act amends Section 3 of the Act, the effect of which is to remove
the outer limit or five years on requisition, imposed under Section 3 of Act.
As a result of amendment carried out by Amending Act, the Government may by
order published in the Gazette:- (a) requisition that cashew factory for such
period not exceeding five years as may be specified in the order;
(b)
extend the period of requisition by five years at a time;
(c) make
such further orders as appear to them to be necessary or expedient in
connection with the requisition.
6. The
objection of the factory owner apart from substantive challenge to the power of
requisition raised to the challenge stating that there was no material in
existence which is requisitioned for subjective satisfaction of the Government
about different factors as noted in each of the requisitioning orders. To put
differently, the substantive challenge was that the Amending 8 Act enables the
State Government to requisition the cashew factory for an indefinite period of
time; virtually thereby enabling the State Government to acquire the factory
without following the provisions of any law and therefore, was contrary to
Articles 145, 19(1)(g) and 300A of the Constitution of India, 1950 (in short
the `Constitution'). Coming to the factual aspect as noted that while private
cashew factories was giving 250 days of work in year, the Corporation on
account of financial situation was unable to give, on an average, more than 60
days of work in a year for the earlier ten years. With reference to the factual
scenario of 1993 it was pointed out that while the factory was run by the
Corporation and it gave work to the workers for 12 days and during the
subsequent year 1994 only for 13 days. It was pointed out that the factory was
returned, there was scope for greater number of days work for the workers. The
objections were rejected and subsequent requisitioning orders were passed by
merely reproducing the conditions precedent in the Amending Act. It was,
therefore, submitted that the action of the Corporation and the State
Government is illegal and unconstitutional.
7. Before
learned Single Judge stand was that where any statute empowers the State to
continue to extend a requisition order for an 9 indefinite period, it is
nothing but an order for acquisition and, therefore, it is a colourable
exercise of power which is not available to the State under the Act. The
conceptual difference between the requisition and acquisition of property was
highlighted. The stand was opposed by the State and the Corporation. The High
Court after noticing the factual scenario came to hold that power of
requisition granted to the Government under Section 3 of the Parent Act was
limited to a maximum period of five years. By the Amending Act, 1985 this
limitation was removed and the Government was empowered to extend the lease
indefinitely by instalments of five years at a time. The learned Single Judge
held that his power is bad for reasons enunciated in H.D. Vora's case. By this
case, it virtually amount to a power of acquisition.
8. The
stand of the State and the Corporation was that in view of what has been stated
by this Court in Kesavananda Bharati v. State of Kerala (1973 (4) SCC 225) and
Sonia Bhatia v. State of U.P. (AIR 1981 SC 1274) when a law was enacted to
further the directive principles of State policy enumerated in Part IV of the
Constitution then, irrespective of other considerations, it must be upheld. The
High Court did not accept the stand.
It was
noted that the principle of law highlighted in the decisions in 10 Keshvananda
Bharati's and Sonia Bhatia's cases (supra) were not applicable to the facts of
the present case.
9. The
High Court referred to salient features of Section 3 which relates to the power
of the State Government to requisition the factory for such period "not
exceeding five years". In other words, there was a maximum period of five
years up to which the cashew factory in question could be requisitioned in line
with the objective with which the legislation was enacted. Section 4 of the Act
provides that the Government may at any time release from requisition any
cashew factory requisitioned under Section 3 and upon this happening the
Government shall restore the factory in as good a condition as it was when the possession
thereof was taken by virtue of the lease executed by it with the owner of the
cashew factory, subject to the provisions contained in such lease and to
changes caused by reasonable wear and tear and irrespective force. Under the
said provision the Government is required to restore the cashew factory and its
assets on the factory being released from requisition. Section 4 empowers the
Government to determine the rent for requisitioning the factory. While doing
so, the principles laid down therein have to be kept in view. Section 11 of the
Act bars the jurisdiction of the Civil Court in regard to any dispute in
respect of any matter which the Government or the Corporation is 11 empowered
to determine under the Act and protects action taken in good faith in pursuance
of any power conferred by or under the Act.
10. The
grievance of the factory owner was that the authority declined to extend the
lease and refused to renew the lease in favour of the Corporation.
A request
was made to return the concerned cashew factory with all its assets. That
prayer was also not complied with. There were pleas of set up of certain
amounts/dues. Having failed in his attempt to persuade the authorities to
return its factory and its assets, the Original Petition No.16424/1994 was
filed for a direction to the authorities to hand back the possession of the
concerned cashew factory with all its assets. During the pendency of the
original petition, notice was served under Section 3(1) of the Act, notifying
the intention to requisition the concerned cashew factory under the Act for a
further period of five years on the ground that if the owner is put in
possession of the cashew factory, he may not run the factory properly, in
accordance with law and may either sell it or lease it out to private
individuals resulting larger scale unemployment of workers and adversely
affecting their part of service. A statement of objection was filed, inter
alia, taking the stand that the Government has no right to extend the lease for
an indefinite period. It was stated that no such fact existed which 12 could
have enabled the State Government to arrive at a decision that upon return of
the factory, they would not run it or close it down or lease it out to the
private individuals resulting in large scale unemployment of workers or thereby
adversely affecting the conditions of workers. By another notice, the
Government extended the period of requisition for a period of five years.
Objection
was also filed.
11.
Section 3 of the Amending Act validated the continued possession of the cashew
factories requisitioned under Section 3(1) of the Act which had vested in the
second respondent Corporation under sub-section (3) of that Section
notwithstanding the expiry of the lease period and notwithstanding anything
contained in any law, or any decree or order of any court, and notwithstanding
anything to the contrary in the terms of the contract or agreement. The result
of Amending Act was that it validated the action of the appellant and the
second respondent even if contrary to the terms of the lease, even if time had
expired, and even if there was a decree for eviction made by a competent court
of law.
12. The
High Court referred to a decision of this Court in Minerva Mills v. Union of
India (AIR 1980 SC 1789) to hold that a fundamental 13 distinction was drawn by
this Court between the constitutional law and ordinary law as in the criterion
of validity. Learned Single Judge accepted the challenges in the writ
petitions. The writ appeals were also dismissed.
The
Division Bench also took note of the observation of learned Single Judge about
the period of employment offered by the factory under requisition. It also
noted that the financial condition of the Corporation was far from satisfactory
and, therefore, there was no material to show that it was in a better position
to manage and run the factory than the owner himself. Appellants and
respondent-writ petitioner reiterated the stands before the High Court.
13. While
in the case of Constitutional law its validity is inherent, in the case of
ordinary law its validity is to be tested on the touchstone of the
Constitution.
14. It
was noted that in Sonia Bhatia's case (supra) this Court upheld the validity of
the U.P. Imposition of Ceiling on Land Holdings Act, 1961 on the ground that it
was a valuable piece of social legislation with the object of ensuring
equitable distribution of land by taking away land from large tenure holders
and distributing the amount among the landless tenants or 14 using the same for
public utility schemes which was in the larger interest of the community. The
High Court noted that the question to be answered was, however, justifying the
initial requisitioning of the cashew factory was, since requisition by
definition must be of temporary character and it cannot be tuned into a
permanent deprivation of proprietary rights so as to amount to acquisition at
back door. This is precisely what this Court has described as a fraud on the
power in H.D. Vohra's case. It was submitted that the High Court should not
have treated an action of the State Government and of the Corporation to be
actually an opinion or acquisition under the colour of requisition. Learned
counsel for the respondent on the other hand submitted that both the learned
Single Judge and the Division Bench have analysed factual scenario in great
detail keeping in view the statutory provisions. The conclusion as submitted
would not warrant any interference.
15. The
first contention which weighed with the learned Single Judge was that any
statute which empowers the State to continue to extend a requisition order for
an indefinite period was nothing but an order for acquisition, it was a
colourable exercise of power, which the State did not possess under the Act.
The distinction between requisition and acquisition 15 of property has been the
subject matter of several decisions of the Supreme Court and the line of
demarcation between the two is well defined in the celebrated judgment in H.D.
Vora v. State of Maharashtra (AIR 1984 SC 866). In this case this Court had
occasion to consider the validity of repeated continued requisitions of private
premises initially acquired under the emergency powers during war years. This
Court pointed out that the two concepts, one of requisition and the other of
acquisition, are totally distinct and independent. Acquisition means the
acquiring of the entire title of the expropriated owner, whatever the nature
and extent of that title may be. The entire bundle of rights which was vested
in the original holder passes on acquisition to the acquirer, leaving nothing
to the former. The concept of acquisition has an air of permanence and finality
in that there is transference of the title of the original holder to the
acquiring authority. In contradistinction, the concept of requisition involves
merely taking of domain or control over property without acquiring rights of
ownership and must by its very nature be of temporary duration. This Court
summed up by pointing out that, the State cannot under the guise of requisition
continue dominion over some one's property for an indefinite period of time,
because that would be a fraud on the power conferred on the government. If the
Government wants to take over the property for an indefinite period of time, 16
the Government must acquire the property, but it cannot use the power of
requisition which is exercisable by the Government only for a public purpose
which is of a transitory character. If the public purpose for which the
premises are required is of a perennial or permanent character from the very
inception, no order can be passed requisitioning the premises and, in such a
case, the order of requisition, if passed, would be a fraud upon the statute,
for the Government would be requisitioning the premises, when really speaking
they want the premises for acquisition, the object of taking the premises being
not transitory but permanent in character. Where the purpose for which the
premises are required is of such a character that from the very inception it
can never be served by requisitioning the premises, but it can be achieved only
by acquiring the property, which would the case where the purpose is of a
permanent character or likely to subsist for an indefinite period of time, the
Government may acquire the premises, but it certainly cannot requisition the
premises and continue the requisitioning indefinitely.
16. In
Grahak Sanstha Manch v. State of Maharashtra (1994 (4) SCC 192), a Constitution
Bench of this Court approved of the decision in H.D. Vora's case (supra) and
held that the said decision did not require 17 reconsideration. However, the
Constitution Bench did not approve the reasoning in H.D. Vora's case (supra)
that the requisition order cannot be made for a permanent purpose leaving the
question open and holding that the order of requisition can continue for a
reasonable period of time though in H.D. Vora's case (supra) it was considered
to be unreasonable in the facts of the case. In Rajendra Kumar Gupta v. State
of U.P. (1997 (4) SCC 511), the same principle has been reiterated by this
Court.
17. In
Union of India v. Elphinstone Spinning and Weaving Co. Ltd. (AIR 2001 SC 724),
this Court was concerned with a challenge to the Textile Undertakings Act,
under which the Government was empowered to take over the management of certain
textile mills whose financial condition had deteriorated "pending
natioalisation". The question was whether this power was liable to be
challenged on the ground that it amounted to acquisition in reality. Repelling
the challenge, it was held by this Court that power was not even liable to
challenge as abridging Article 31-A (1) of the Constitution introduced by the
Constitution First Amendment Act of 1951, clause (1)(b) of which provides that,
notwithstanding anything contained in Article 13, no law providing for the
taking over of the management of any property by the State for a limited period
either in the public interest or in 18 order to secure the proper management of
the property shall be deemed to be void on the ground that it is inconsistent
with, or takes away or abridges any of the rights conferred by Article 14 and
Article 19. This Court was of the view that parliament had in enacting the
Textile Industries Act, 1983 clearly indicated that the taking over was for a
temporary period "pending nationalization of Textile Mills". Merely
because nationalization would take long time, it cannot be urged that the power
was to be exercised for indefinitely long time since the exercise of the power
was delimited by the happening of a contingency. Thus, the power of
requisitioning is liable to be upheld, if it is to be exercised for a temporary
duration, which is limited either in terms of time or by reason of a
contingency.
18. In
Charanjit v. Union of India (AIR 1951 SC 41) the difference between the
temporary and transitory nature of requisition and permanent nature of
acquisition was highlighted by this Court. It was inter alia held that upon
acquisition the entire bundle of rights which were vested in the former
original holder would pass on to the acquirer leaving nothing in the former,
while requisition would keep merely possession in the person requisitioning
while leaving the title of the owner in tact. In other words, if the possession
of property by exercise of dominion thereupon is continued 19 indefinitely, it
would amount to colourable exercise of or fraud on the power and nothing but a
back door expropriation of property. As was observed in Raghubir Singh v. Court
of Wards, Ajmer (AIR 1953 SC 373) and Corporation of Calcutta v. Cal. Tramways
Co. Ltd. (AIR 1964 SC 1279) that though it is open to the State to impose
reasonable restrictions upon fundamental rights guaranteed under the
Constitution, the nature of the restrictions should not be such that right
guaranteed becomes illusory. If that happens then the restrictions should cease
to be reasonable. We find there is no merit in all these appeals which are to
be dismissed. We direct accordingly. It is, however, brought to our notice by
learned counsel for the appellant that the State Government intends to limit
the period by another ten years. This is a matter about which we express no
opinion. The appeals fail and are dismissed with no orders as to costs.
........................................J. (Dr. ARIJIT PASAYAT)
........................................J.
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