ZAMOOTHIRI RAJA KUDUMBA KENDRA SAMITHY V. UNION OF INDIA

WP(C)/11339/2015

AI Insights

The case involves a writ petition filed by the Zamoomthiri Raja Kudumba Kendra Samithy and others, challenging the rejection of their request for enhancement of Malikhana payments, which are political pensions. The petitioners argued that the rejection was against the doctrine of promissory estoppel and sought a mandamus to implement the enhancement. The respondents, including the Union of India, defended the decision based on the Pensions Act of 1871 and the policy decision of 1952, which did not allow for such enhancements. The court examined the historical context of the Malikhana payments, the legal framework governing them, and previous judicial decisions on similar matters.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 725241 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 26-10-2023
• Assessment Year: misc
• Other Referred Cases: State of Jharkhand and Others v. Brahmputra Metalics Ltd., Ranchi and Another [2020 (13) SCALE], W.P.(C).No.11981/1992, W.A.No.2243/1999, Raghunathrao's case
• Laws Referred To: Pensions Act of 1871, Hindu Succession Act, Indian Evidence Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: DINESH SHENOY
• Assessee Lawyers: K RAMAKUMAR; ASH BABU; AMMU CHARLES; C DINESH; JINNU GEORGE; S M PRASHANTH; T RAMPRASAD UNNI; G RENJITH
• Keywords: Doctrine of Promissory Estoppel; Malikhana; Political pension; Enhancement request; Policy decision of 1952
• Section: 3; 115; 7(2)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 26TH DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945 WP(C) NO. 11339 OF 2015 PETITIONERS: 1 ZAMOOTHIRI RAJA KUDUMBA KENDRA SAMITHY REG. NO.KKD/CA/762/2014, NEAR TALI TEMPLE, TALI,KOZHIKODE-673 002, REP. BY ITS CHAIRMAN SRI.P.K.KERALA VARMA, AGED 78 YEARS, S/O.LATE BALA RAMA VARMA, RESIDING AT 10 F.1., CHINTHAVALAP FLATS, RAM MOHAN ROAD, KASABA AMSOM, KOZHIKODE TALUK, KOZHIKODE-673 004. 2 P.K.KERALA VARMA AGED 78 YEARS, S/O.LATE BALA RAMA VARMA, RESIDING AT 10 F.1., CHINTHAVALAP FLATS, RAM MOHAN ROAD, KASABA AMSOM, KOZHIKODE TALUK, KOZHIKODE-673 004. 3 P.K.KUNJANUJAN RAJA AGED 70 YEARS, S/O.LATE K.C.VISHNU NAMBOODIRI, RESIDING AT PADINHARE KETTU, PANNIYANKARA AMSOM DESOM, KOZHIKODE-673 029. 4 K.C.RAJAGOPAL AGED 64 YEARS, S/O.LATE NEELAKANDAN NAMBOODIRI, RESIDING AT \"SREERANG\" CHAITANYA NAGAR, NUT STREET, BADAGARA AMSOM DESOM, KOZHIKODE-673 104. 5 P.C.ETTANUNNI RAJA AGED 77 YEARS, S/O.LATE K. DAMODARAN NAMBOODIRI, RESIDING AT RAJ BHAVAN, MANKAVU PALACE, VALAYANAD AMSOM AND DESOM, KOZHIKODE-673 007. 6 P.K.MANAVIKRAMAN RAJA AGED 73 YEARS S/O.LATE O.P.NARAYANAN NAMBOODIRIPAD, RESIDING AT VIKRAM, PANNIYANKARA AMSOM DESOM, KOZHIKODE-673 029. 7 K.C.MANAVENDRAN RAJA AGED 78 YEARS, S/O.LATE M.NARAYANAN NAMBOODIRI, RESIDING AT PRANAVAM, NALLALAM AMSOM DESOM, KOZHIKODE -673 027. WP(C) NO. 11339 OF 2015 2 8 P.C.VEERARAYAM RAJA AGED 68 YEARS S/O.LATE HARSHAVARMA RAJA, KOUSTHUBHAM, VALAYANAD AMSOM DESOM, KOZHIKODE-673 007. 9 P.C.UNNIANUJAN RAJA AGED 69 YEARS S/O.LATE E.KESHAVAN NAMBOODIRI, RESIDING AT SUDARMA, KACHERI KUNNU, VALAYANAD AMSOM DESOM, KOZHIKODE-673 013. BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.ASHA BABU SMT.AMMU CHARLES SRI.C.DINESH SMT.JINNU SARA GEORGE SRI.S.M.PRASANTH SRI.T.RAMPRASAD UNNI SRI.G.RENJITH RESPONDENT: UNION OF INDIA REP. BY THE SECRETARY TO MINISTRY OF HOME AFFAIRS, 4TH FLOOR, NDCC-II (OPPOSITE JANTAR MANTAR), JAI SINGH ROAD, NEW DELHI-110 001. BY ADVS. SRI.DINESH R.SHENOY, CGC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 11339 OF 2015 3 JUDGMENT 1. Petitioners, 9 in number, have approached this Court by laying challenge to the order Ext.P11 dated 06.01.2015 rejecting the request for enhancement of Malikhana which has been brought under the definition of pension as per the policy decision of 1952. 2. The facts leading to the filing of the writ petition in brief are that an agreement dated 15.11.1806 was entered between one Zamorin Raja with East India Company whereby, besides certain other conditions, it was incorporated under Article III thereof that the instalments of Malikhana shall be payable only to the receipt of the senior member of each Rajeum. The long and short of grievance of the petitioners in the present petition is that Ministry of Home Affairs vide communication dated 08.10.1958 informed Chief Secretary of the Government of Kerala regarding the entitlement of Malikhana which have been treated as a political pension and WP(C) NO. 11339 OF 2015 4 reviewed in accordance with the cabinet decision of 1952, was liable to be revised at a future date. It was mentioned that as per the Madras Government decision dated 25.01.1954 allowances continued for present on the existing terms and conditions but were liable to be revised at a future date. Considering the aforementioned fact, Government of India was advised that in accordance with the Pension Act of 1871 political pension except those which come within the purview of Section 7(2) of the Act cannot be treated to be property and that the devolution of Malikhana allowances would not be governed by Section 3 of the Hindu Succession Act. Being the bounty of the Government it is open to grant to any one person. Government of India are of the view that Malikhana allowances should continue to senior member of each family concerned. Contents of letter sought to be implemented with the intervention of this Court by issuance of mandamus and quashing of decision Ext.P11 entailed into rejection of the request for enhancement. WP(C) NO. 11339 OF 2015 5 3. Learned Senior Counsel Sri.K.Ramakumar raised the argument that rejection of enhancement of scheme vide Ext.P11 dated 06.01.2015 is hit by doctrine akin to promissory estoppel as provided under Section 115 of the Indian evidence Act. In support of the aforementioned submissions, judgment of Supreme Court in State of Jharkhand and Others v. Brahmputra Metalics Ltd., Ranchi and Another [2020 (13) SCALE] has been cited where the Government, by virtue of a contract/agreement accorded to grant a particular relief but thereafter rescinded, was held to be against the doctrine of promissory estoppel. In the instant case, vide Ext.P11 rejecting the enhancement of Malikhana payment treated to be a pension as per the Pension Act in view of the policy taken as far back as in 1952 attached as annexure -R1(c), there was no such provision of enhancement and it was held that the said benefit would be drawn by the senior member of the family. The policy guidelines were also subject matter of challenge before the High Court of Karnataka in W.P.(C).No.11981/1992. WP(C) NO. 11339 OF 2015 6 Vide judgment dated 11.01.1999 Ext.R1(f) the said relief was rejected and affirmed by the Division Bench in W.A.No.2243/1999 Ext.R1(g). This Court has been informed that the said orders were also challenged before the Supreme Court but of no avail. 4. Learned Senior counsel would submit that the order Ext.P11 is a nonspeaking one without any valid reasons. There is no reference to the contract entered into Ext.P1 or reference to Ext.P2. Petitioners were never communicated with the policy decision taken in 1952 and vide Ext.P6 the Joint Commissioner vide communication dated 01.07.2011 had recommended to the Additional Chief Secretary, Revenue, for revision of enhancement of Malikhana payment. The said letter has not been pondered/deliberated in the impugned order. 5. On the other hand learned counsel appearing on behalf of the respondent submitted that as per the communication Ext.R1(a) of the Government of Kerala dated WP(C) NO. 11339 OF 2015 7 30.05.2007, it has been decided that enhancement of Malikhana Pension would come under the Pension Act or the Central Act and therefore the State Government would not have any role for consideration of enhancement. By relying upon exhibit it was submitted that Ext.P6 thus would not have any effect much less persuasive value. In the absence of any challenge to the policy Ext.R1(c) of 01.04.1952 which do not envisage any enhancement, the writ petition would not be maintainable and liable to be dismissed. 6. I have heard the learned counsel for the parties and appraised the paper book. 7. It would be appropriate for this Court to extract Article III of the Contract Ext.P1 and Clause B(13) of policy 1952 of the CA: Article III of the Contract Ext.P1 ARTICLE III.-To ensure a due degree of subordination among the Junior members of the different Kowilgums and of the latter upon the principal one, the instalments of Malikhana shall be payable only to the receipt of the Senior Member of each Rajeum, unless it shall be otherwise determined by competent authority of the WP(C) NO. 11339 OF 2015 8 Company's Civil officers.” Clause B(13) of policy 1952 B. PENSIONS GRANTED TO PETTY RAJAS AND OTHERS IN COMPENSATION FOR THE SURRENDER OF TERRITORIAL RIGHTS (13) Malabar Malikhana allowances (Rs.2,94,000 approximately) These represent allowances - (I) fixed about the year 1800 when the territories of the Malabar Rajas and Chieftains were taken over by the East India Company for direct management of the revenue administration, and Prima facie the Malikhanas, which were conferred by the British on Chieftains who had been formerly dispossessed of their territories by the Muslim Rulers, cannot be regarded as compensation for territorial rights. The grants are therefore, liable to be terminated after the life-time of the present holders. Before taking a final decision in the matter, the Government of India will WP(C) NO. 11339 OF 2015 9 be glad if necessary particulars (including copies of relevant papers on the subject) could be forwarded to the Government of India with the comments of the State Government. (ii) in a small number of cases, compassionate grants sanctioned to the families of certain chiefs, who were dispossessed of their territories as a punitive measure, for rebellion and disloyalty. 8. Though the petitioners heavily relied upon communication between Ministry of Home Affairs and Chief Secretary dated 08.10.1958 seeking revision of Malikhana, I would be failing in my duty in not extracting the same. The same reads as under: WP(C) NO. 11339 OF 2015 10 “I am directed to state that having regard to the fact that the malikhana allowances were essentially payments in lieu of the rights enjoyed by the Rajas and Chiefs of Malabar and South Canara in the territories ceded to the East India Company after the Mysore vars they have been treated as political pensions and reviewed in accordance with the Cabinet decision of 1952. It was accordingly decided vide Madras Government G.O.No.107 dated the 25th January 1954 that these allowances may be continued for the present on the existing terms and conditions but that they were liable to revision at a future date. The Government of India have been advised that in accordance with the Pensions Act of 1871 political pensions except those/which come within the purview or section 7 (2) of the Act cannot be deemed to be \"property and that the devolution of the malikhana allowances would not be governed by section 7 (3) of the Hindu Succession Act. Being a bounty of the Government. It is open to grant it to any one person. The Government of India are of the view that the malikhana allowances should be continued to the senior member of each of the family concerned.” 9. On perusal of the same, it is evident that there was no such observation with regard to the revision of Malikhana at a future date but it was basically referred to on the basis of decision of Madras Government dated 25.01.1954. Government India had brought Malikhana under the ambit of Pensions Act of 1871 which did not envisage any procedure for WP(C) NO. 11339 OF 2015 11 enhancement. Petitioners aggrieved of such act had approached Commissioner of Land Revenue, Thiruvnanathapuram vide communication dated 01.07.2011 Ext.P6 addressed to Additional Chief Secretary for revision of Malikhana. The contents of the same reads as under : Kind attention is invited to the reference cited. The District Collector, Kozhikkode reports that, Zamorins, the Rulers of Kozhikkode transferred their landed properties and rights to the British East India Company under specific Karar. When the British took over the affairs of East India Company they declared a compensation titled MALIKHANA and continued payments till independence in 1947. After Independence Government of India ordered in year 1952 continuation of the Malikhana as political pension without any change or increase. The establishment of Zamorin Raja and family was located at Kozhikode(Calicut) and this family was the most prominent rulers of Malabar having three branches, two located at Calicut and the third at Kottakkal in Malappuram District. Malikhana payment is given to nine(9) eldest members of the family at present as stated below: 1 Zamorin Raja :Rs.69,663/- 2 Eralpadu Raja 2nd in line :Rs.15,000/- 3 Munalpadu Raja 3rd in line :Rs.7,000/- 4 Edatharalpadu Raja 4th in line :Rs.5,000/- 5 Naduthralpadu Raja 5th in line :Rs.4,500/- 6 Ambadi Kovilakom Valiya Thampuratty :Rs.4,000/- WP(C) NO. 11339 OF 2015 12 7 Puthiya Kovilakom Valiya Thyampuratty :Rs.9,000/- 8 Padinhara Kovilakom Valiya Thampuratty :Rs.9,000/- 9 Kizhakker Kovilakam Valiya Thampuratty :Rs.9,000/- Total :Rs.1,32,163/- The District Collector, Kozhikode also reports that Malikhana payment was fixed on the basis of a Karar entered in the year 1806. The value of properties transferred was the basis for the amount involved in the Malikhana. That is one Indian Rupee equivalent to one British Sovereign Currency. Till then there is no change or increase from the amount fixed in the year 1806. It is also reported that some Central Government establishments and Kerala State Government establishments located in, 9 most important places of Kozhikode city. District Collector also reports that the examination of settlement Register reveals that Zamoorin Raja and family were the landlords of most of the landed properties in the present Kozhikode city. In the Register made in year 1933 all landed properties handed over to Government are recorded in the name of the respective Government officers or establishments and others as puramboke meaning not claimed or no tax paid. 35-45 acres at West Hill in Puthiyangadi Village old Calicut city, Kozhikkode Taluk is now registered as property of Defence Department. The land where the 'Helipad is situated in Kacheri Village of Calicut city extending 8.67 acres which is also recorded in the register as belonging to Ministry of Defence. Other central Government establishments such as Income Tax Offices, Central Excise offices, State Bank of India are located in Nagaram Village of Kozhikkode city in RS 7-2-22, 23, 24 and now shown as WP(C) NO. 11339 OF 2015 13 belonging to respective officer in the Village records. It is difficult to account the value of all these landed properties located in the centre of Kozhikode city. Since the Malikhana payment was fixed in year 1806 based on the value existing then the current values of properties are several times hugher. In the WP(C) 23177/03 filed by the petitioner Sri.P.K.Kerala Varma before the Hon'ble High Court of Kerala contenting for increasing in the Malikhana payment. The Hon'ble High Court had ordered on 4th April 2008 that Government of India to hear the petition and pass orders in this regard. In compliance of the order the District Collector had passed an order that the Malikhana is divisible and all members of the family are entitled for the share. It is also reported that at present there are 857 members in the family and when the Malikhana payment is divided equally the members receive only negligible amount. It is a fact that Malikhana political pension remain same as it was paid in the year 1806. The District Collector also recommended to enhance Malikhana payment. Decision for enhancement should be taken at Government level. Reports from District Collector, Kozjikode and enclosure are also enclosed.” 9. The contention that in view of the observation of State of Kerala as per the Commissioner’s report, rejection of the request vide impugned communication is hit by doctrine akin to promissory estoppel. There is no dispute to the provisions of promissory estoppel enshrined under Section 115 WP(C) NO. 11339 OF 2015 14 of the Indian Evidence Act and as per the ratio decidendi culled out in the judgment cited supra, in order to invoke such provision there has to be some promise. Promise was not extended by Government of India which had in unison decided to give Malikhana and thereafter brought under the provisions of Pension Act. Commissioner's recommendation would not have any effect and rather would pale into insignificance in view of the Government order dated 30.05.2007 Ext.R1(a). The same reads as under: “Kindly refer to you letter cited. The State Government vide its orders dated GO (Ms) 425/99/GAD dated 15-06-2004 has enhanced the rate of all Family & Political Pensions in the State to Rs 300/- based on a High Court direction in an OP. Later on a representation from the Malikhana recipients of the State, Govt. have decided to enhance the rate of Malikhana pension, also to Rs.300/- per month (vide GO (Ms) 620/2000/GAD dated 13-11- 2000) in tune with the enhancement of other F&P pensions. This was done by oversight as the Govt. that stage was not aware of the fact that it had no authority to enhance the Malilkhana Pension. However MHA, Gol (Vide letter no:19/1/2001/Pol IU dated 14-03-2001) and the Accountant General, Kerala have later informed that the State Government has no power to enhance the WP(C) NO. 11339 OF 2015 15 Malikhana pension as this comes under the Pensions Act of 1871. Based on this advice, the State Government vide GO (Ms) 333/01/GAD dated 26-09-2001 cancelled its earlier order enhancing the Malikhana Pension. The President Palakkattussery Sevana Samajam has already been informed about the Govt's inability to enhance the rate of Malikhana Pension. 10. On perusal of the same, it is evident that Government had no role for enhancement of Malikhana pension as it falls within the purview of Pension Act 1871. The aforementioned policy of 1952 came to be pondered before the High Court of Karnataka in W.P.(C)No.11981/92 decided on 11.01.1999 Ext.R1(f) wherein noticing that there was no such provision of enhancement the plea was rejected. The operative part of the order reads as under: “5. . . . . . . . . . . . . . . The norms identified for the purpose amply/that grants in perpetuity could also be reviewed by reference to the purpose for which they were made. The Government appear to have been averse to any such grants continuing beyond the life time of the present grantees, although in exceptional cases, the same could be extended for two or three generations. The decision taken by the Central Government in the WP(C) NO. 11339 OF 2015 16 year 1972, was therefore perfectly in tune with the policy formulated in the year 1952. The occasion to limit the political pensions to the existing beneficiaries arose as a necessary concomitant of the constitutional amendment resulting in abolition of the privy purses. The challenge to the amendment, was examined by the Supreme Court in Raghuna thrao's case, referred to by Mr Haranabally, in which while holding the amendment to be intra vires, the Court in specific tormo repelled the contention that the Amendment was an ugly epitome of immorality perpetuated against the erstwhile Rulers. Morality, the Court declared was entirely different from legal obligation flowing from a constitutional provision. The Courts are not concerned with morality which was the concern of the law makers observed their lordships. Abolition of privy purses thus attained finality. Since Political pensions like the one we are dealing with did not have any constitutional flavour and flowed entirely from an executive order issued by the previous Government, it needed no more then an executive decision to abolish the game. Judged in that context therefore I see no reason how Government decision dated 17th of June, 1972, limiting the pension to the beneficiaries then drawing the penal on could be said to be unfair, irrational or in violation of any right, guaranteed by the Constitution. The writ petition accordingly fails and is hereby dismissed but in the circumstances without any orders as to costs. 11. The said order was affirmed in Writ Appeal Ext.R1(g) vide the following judgment: WP(C) NO. 11339 OF 2015 17 “We agree with the view taken by the Single Judge that the grant of political pension by Britishers during 1832 could be limited by the Executive order issued by the Government of India dated 17.6.1972 limiting the pension to the beneficiaries then drawing the pension.” 12. All these factors in my view lead to the irresistible conclusion that principles akin to promissory estoppel would not be applicable in a case. If it all the petitioners were aggrieved, were required to challenge policy of 1952 and decision taken in 1972. But the same has already been upheld by High Court of Karnataka. The relief as sought in the present petition would not subsist. Writ petition sans merit, accordingly dismissed. Sd/- AMIT RAWAL JUDGE nak WP(C) NO. 11339 OF 2015 18 APPENDIX OF WP(C) 11339/2015 PETITIONER EXHIBITS EXT P1 : TRUE COPY OF AGREEMENT DATED 15.11.1806 ENTERED INTO BETWEEN ZAMORIN RAJA AND THE EAST INDIA CO. EXT P2 : TRUE COPY OF ORDER DATED 5.5.2008 ISSUED BY THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS. EXT P3 : TRUE COPY OF REPRESENTATION DATED 25.11.2002 SUBMITTED BY THE 2ND PETITIONER BEFORE THE RESPONDENT. EXT P5 : TRUE COPY OF THE ACKNOWLEDGMENT DATED 2.3.2010 FROM THE HOME MINISTER, GOVERNMENT OF INDIA. EXT P4 : TRUE COPY OF THE ACKNOWLEDGMENT DATED 5.11.2009 RECEIVED FROM THE PRIME MINISTER'S OFFICE ALONG WITH COVERING LETTER DATED 27.3.2010 OF THE MP. EXT P6 : TRUE COPY OF THE DETAILS FURNISHED BY THE GOVERNMENT OF KERALA TO THE MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI DATED 14.9.2011. EXT P7 : TRUE COPY OF THE SETTLEMENT REGISTER FOR THE YEAR 1902. EXT P8 : TRUE COPY OF THE SETTLEMENT REGISTER FOR THE YEAR 1903. EXT P9 : TRUE COPY OF THE LETTER DATED 23.5.2013 OF THE MINISTRY OF DEFENCE, GOVERNMENT OF INDIA. WP(C) NO. 11339 OF 2015 19 EXT P10 : TRUE COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, NAGARAM VILLAGE TO THE JOINT COMMISSIONER, CENTRAL EXCISE ALONG WITH THE COVERING LETTER DATED 1.9.2014. EXT P11 : TRUE COPY OF THE LETTER DATED 6.1.2015 RECEIVED BY THE 1ST PETITIONER FROM THE RESPONDENT. EXT P12 : TRUE EXTRACT FROM THE MALABAR MANUAL BY W.LOGAN OF GERMANY. "