G. Santhoshkumar & others v. State of Kerala and The District Collector, Alappuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** ## **THURSDAY, THE 31ST DAY OF MAY 2012/10TH JYAISHTA 1934** ## **WP(C).No. 4208 of 2007 (A)** **--------------------------** **PETITIONER(S):** **-----------------------** **1. G. SANTHOSHKUMAR, PUTHEN PURAYIL HOUSE, THURUTHI BHAGOM, N.NAGAR P.O. AROOKUTTY VILLAGE, CHERTHALA TALUK ALAPPUZHA DISTRICT.** **2. P.G. SALILA KUMAR, -DO- -DO-.** **3. P.G. SUNIL KUMAR, -DO- -DO-.** **4. G. SANJEEV KUMAR, -DO- -DO-.** **BY ADV. SRI. T.R. RAJAN** **RESPONDENT(S): --------------------------** **1. STATE OF KERALA, REPRESENTED BY REVENUE A DEPARTMENT GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DISTRICT COLLECTOR, ALAPPUZHA.** **R1 & R2 BY GOVT. PLEADER SRI. T.R.RAJESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 4208 of 2007 (A)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **EXT.P1 : COPY OF THE ORDER PASSED BY THE REVENUE DIVISIONAL OFFICER DATED 29.8.1992.** - **EXT.P2 : COPY OF THE REPORT SUBMITTED BY TAHSILDAR BEFORE DISTRICT COLLECTOR DATED 4.5.1996.** - **EXT.P3 : COPY OF THE ORDER OF THE GOVERNMENT DATED 30.9.1999.** - **EXT.P4 : COPY OF THE ORDER IN THE PRESCRIBED FORM UNDER RULE 9 OF LAND ASSIGNMENT RULES.** - **EXT.P5 : COPY OF THE COUNTER AFFIDAVIT FILED BY THE GOVERNMENT IN OP 10421 OF 2000.** - **EXT.P6 COPY OF THE JUDGEMENT DATED 27.1.2006 IN OP NO. 10421 OF 2000.** **EXT.P7 COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER BEFORE GOVERNMENT DATED 14.3.2006.** **EXT.P8 COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER BEFORE THE SECRETARY TO GOVT. DATED 7.6.2006.** **EXT.P9 COPY OF THE ORDER DATED 15.1.2007 OF THE GOVERNMENT.** **EXT.P10 COPY OF THE ORDER OF THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT DATED 31.1.2007.** **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.A. TO JUDGE** **Mn** ## **S. SIRI JAGAN, J.** ------------------------------------------- ## W.P.(C) No.4208 of 2007 ---------------------------------------------Dated this the 31[st] day of May, 2012 ## **JUDGMENT** The petitioners claim that the father of the petitioners, one Govinda Panicker, now no more, was in possession of a registered holding measuring approximately 1 Acre and 9 cents comprised in Survey No.197/9 of Panavally Village. An extent of 75 cents of Kayal puramboke comprised in Survey No.236/1 of Palnavally Village lies adjacent to the aforementioned registered holdings in Survey No.197/9 on two sides. The said Govinda Panicker was in possession and enjoyment of the same in succession to the possession of the previous person in possession namely Smt. Karthiyayini Madhavi Amma from 1940 onwards. The said Govinda Panicker filed an application for assignment of the said 75 cents of kayal puramboke. The Government took a decision to assign 75 cents of land in favour of the petitioners in this writ petition as the legal heirs of Govinda Panicker, who died in the meanwhile. While passing the order of assignment, the Government directed recovery of land W.P.(C)No.4208/07 2 value at the rate of Rs.2,000/- per cent without taking into account Ext.P2 report fixing the land value at Rs.150/- per cent. The petitioner challenged Ext.P4 in O.P.No.10421/2006. This Court found that the fixation of the land value in Ext.P3 order at Rs..2,000/- per cent ignoring Ext.P2 report by the Tahsildar was wrong. Consequently, this Court proceeded to set aside Exts.P4 and P5 and directed consideration of the matter afresh. Pursuant to the same, Ext.P9 order has been passed, whereby the Government held that the assignment itself is illegal and consequently the said property was ordered to be resumed. It is challenging Ext.P9 order, this writ petition has been filed seeking the following reliefs: “a. issue a writ in the nature of certiorari quashing Exhibit P.9 b. issue a writ in the nature of mandamus commanding the Government to pass fresh orders in compliance with Exhibit P6 judgment by fixing the land value for the land forming subject matter of Exhibit P.3 order of assignment and Exhibit P.2 report of the Tahsildar.” 2. A counter affidavit has been filed on behalf of the 2[nd] respondent supporting the impugned order. 3. I have considered the rival contentions in detail. I W.P.(C)No.4208/07 3 do not have to think twice to hold that the petitioners are not persons eligible for assignment of land under the Kerala land Assignment Rules, especially the particular land, which is admittedly kayal puramboke. This Court has already held in O.P.No.16077/1996 that the kayal puramboke shall not be assigned by the Government to anybody. The petitioners' case itself is that this property is kayal puramboke. The petitioners themselves admit in the writ petition that they are owning 1 Acre and 9 cents of property. The property sought to be assigned is lying adjacent to that property. Apart from that, in Ext.P1 proceedings of the Sub Collector, it is held that the petitioners' family holds 5 Acres of land. Under Rule 5 of the Kerala Land Assignment Rules, the maximum extent of land, which can be assigned for personal cultivation of a single family is 50 cents, whether wet or dry in the plains and not more than 1 Acre of wet or dry land in hilly tract. Sub Rule 2 of Rule 5 specifically says that when a family owns or holds any land over which it has proprietary right or has security of tenure, only the balance of extent of Government land 4 W.P.(C)No.4208/07 necessary to makeup the extent admissible under sub-rule 1 shall be granted to the family on registry. Therefore, clearly the petitioners are not eligible for assignment of land under the Kerala Land Assignment Rules, since admittedly they own large extents of land. A Division Bench of this Court in _**Varkey Abraham**_ v. _**Secretary to Government**_ [2007(3) KLT 702] categorically held that the land assignment rules are not intended for giving more land to people who already owns land. It is intended for assigning land to landless people. It would be very apt in the context of this case to quote paragraphs 11, 12 and 15 of the said decision which read thus: “11. The next question to be considered is whether the petitioner is entitled to claim assignment of an extent of 3.20 acres and that too when he is holding large extents of land. Ext.P4 order passed by the Taluk Land Board shows that the petitioner was in possession of 34.97 acres including an extent of 22.49 acres of exempted land. In Ext.P1 application, the petitioner stated that he was in possession of 12.48 acres. It is an admitted case that his father got assignment of an extent of 1.15 acres of Government land and he gifted that land to the petitioner. Ext.P6 order passed by the Commissioner of Land Revenue shows that the petitioner and his family members living with him are holding an extent of 13.05.67 hectares (32.27 acres) of land and that his daughter is in possession of 1.04 hectares (2.57 acres) of land. The maximum extent of land that could be W.P.(C)No.4208/07 5 assigned to a person under the Rules is 1 acre, after the amendment of the Rules in 2005. Before the amendment, the maximum extent that could be assigned under R.5 in the plains was two acres. R.5(2) of the Rules reads as follows: 'When a family owns or holds any land over which it has proprietary right or has security of tenure, only the balance of extent of Government land necessary to make up the extent admissible under sub-r (1) shall be granted to it on registry.' Explanation (iii) to R.5(2) is as follows: 'For the purpose of calculating the extent of land that may be assigned to a family, the total extent of land possessed or held with proprietary right or fixity of tenure by the head of the family and also the members of the family both individually and collectively shall be taken into account. Assignment made in favour of a family under these rules shall, for the purpose of calculating the maximum extent that may be so assigned, include assignment made to members of the family both individually and collectively, the total extent so assigned not exceeding the maximum area that may be assigned to that family. The area under encroachment by a member of a family shall, for the purpose of these rules, be deemed as the area under encroachment by the family.' 12. The definition of 'family' under R.2(d) is wide. It includes children and even parents. Children who have attained majority also come within the definition of 'family'. The only requirement is that the children should be either living with the parents or dependant on them. So far as parents are concerned, they must be solely dependant on the person concerned. The definition of 'family' is wider than the family as contemplated in S.82 of the Kerala Land Reforms Act which provides for ceiling area. By the operation of R.5(2) read with Explanation (iii), W.P.(C)No.4208/07 6 the petitioner cannot claim any extent of land on registry since he holds more than the extent which could be assigned under the Rules. Such a person cannot aspire for any assignment of Government land on registry under R.5. It is an admitted case that his father got assignment of 1.15 acres of Government land on registry and that land came to vest in the petitioner. On that count also, the petitioner cannot claim assignment of Government land under R.5. Xxx xxx xxxx xxx xxx xxxx 15. The various provisions in the Kerala Government Land Assignment Act and the Kerala Land Assignment Rules would unmistakably show that the Act and Rules are intended to protect landless people by assigning to them Government lands for cultivation and other purposes. The Act provides for assignment of Government land absolutely or subject to such restrictions, limitations and conditions as may be prescribed. The Rules provides for assignment of lands on registry for purposes of personal cultivation. The Rules also provides for granting assignment of small extents of land for constructing house and for the beneficial enjoyment of adjoining registered holdings. The Rules contain provisions for extending priority to landless people, members of Scheduled Caste and Scheduled Tribes, Ex-servicemen, persons disabled in active military service, persons who are dependants of those who are killed or disabled while in active military service, small holders whose family income is less than Rs.10,000/- certain category of kumkidars etc. The procedure for assignment is also provided in the Rules. Provisions is made for preparing the lists of lands to be reserved for Government or public purposes and the lands to be set apart for assignment on registry. The lists are to be approved by the Government or an authorized authority. The authority to approve the list of lands available for lease or license shall be District Collector. Various authorities are also provided to whom the applications under the W.P.(C)No.4208/07 7 different categories are to be submitted. We are of the view that the Act and Rules are not intended for enriching persons who hold extensive lands. Assignment on Registry of Government lands to such persons would defeat the very purpose of the Act and Rules. There is no vested right in any person to claim assignment on registry of Government land. The claim made by the petitioner originated and continued on encroachment. Such a person cannot have any legal right to claim that land. Provision for assignment of lands to encroachers is with a specific purpose. It is intended to protect such of the encroachers who are landless and downtrodden. They too have no vested right to get assignment on registry. The scheme of the Act and the Rules would unmistakably show it. Mighty people do not come anywhere near the benevolent protective umbrella of the Act and Rules. True, a person may desire to annex to his property the neighbouring lands, though it is Government land. Such a desire is not recognised or protected under the Act and Rules.” It is not a secret that in Kerala, land is very dear. In fact, the Government is finding it very difficult to find land to assign it to Scheduled Tribe members, who have been promised land for decades. In such circumstances, it is against public interest to assign such large extent of land to people, who already own large extent of land. Therefore, the petitioners are not entitled to assignment of the land in question. Of course, the petitioners rely on Ext.P10 order of the learned Single Judge, who disposed of the earlier writ petition, in the Contempt Case W.P.(C)No.4208/07 8 filed by the petitioner where the learned Single Judge observes that what was directed to be considered is only the land value. I am of opinion that when patent illegality has been brought to the attention of this Court notwithstanding the earlier order, this Court should not assist the petitioners to get unmerited benefit, that too of assignment of Government land, which is intended for people, who have no land. Further the facts revealed now may not have been brought to the attention of the learned Judge while passing the judgment and orders, and that judgment does not take into account the judgment of this Court prohibiting assignment of Kayal puramboke. Therefore, I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India, in favour of the petitioners. The writ petition is accordingly dismissed. ## **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.4208/07 9 W.P.(C)No.4208/07 10