Hosdurg Service Co-Operative Bank Ltd. v State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 WP(C) NO. 18018 OF 2013`** ## **`PETITIONER:`** ``` THE HOSDURG SERVICE CO-OPERATIVE BANK LTD. KANHANGAD, KASARAGOD DISTRICT, KERALA STATE REPRESENTED BY IT'S SECRETARY ``` ``` BY ADVS. SRI.K.G.ANIL SRI.BEPIN VIJAYAN ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM ,PIN 695 001.` - `2 PRINCIPLE SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM ,PIN 695 001.` - `3 THE DISTRICT COLLECTOR KASARAGOD DISTRICT,PIN 671123` - `4 THE TAHASILDAR KANHANGAD TALUK, KASARAGOD DISTRICT ,PIN 671 123. SRI.B.S.SYAMANTAK` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.18018/2013 **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.18018 of 2013** **---------------------------------------------Dated this the 05[th] day of February, 2024** ## **JUDGMENT** Petitioner, a Co-operative Bank, is the owner and in possession of 9 cents of land in Re.Sy.No.204/1A1A1A2 of Hosdurg Village, Kanhangad Taluk, Kasaragod District. The main office of the petitioner bank is situated in the above property and there are also other appurtenant constructions in the property belonging to the petitioner, is the submission. This land was alienated to the petitioner bank vide order dated 15.6.1939 by the District Collector, South Canara. Initially 5 cents of land was available in the front portion of the petitioner’s land and in between the road for which the petitioner had sought assignment. Out of this 5 cents, 2 cents was assigned by the 1[st] respondent to Khadi & Village Industries Board. Challenging the said decision, the petitioner approached this Court by filing O.P.No.8472/1989. WP(C).No.18018/2013 **3** 2. During the course of hearing of the said Original Petition, the petitioner confined the request to 3 cents and this Court, as per judgment dated 10.04.1990, disposed of O.P.No.8472/1989, directing the respondent to consider the same. But the request of the petitioner was rejected by the 1[st] respondent and the petitioner again challenged the same before this Court by filing O.P.No.7908/1990. This Court disposed of that case as per Ext.P1 judgment dated 20.03.1997, holding that the respondents have not considered the relevant aspects of the matter vis-a-vis, the provisions of the Land Assignment Act and directed the respondents to consider the issue with respect to the contentions raised by the petitioner including the occupation of the land since 1939. 3. Though Ext.P1 judgment was rendered in the year 1997, there was no follow up action from the part of the respondents, is the submission. Hence, the petitioner approached the 3[rd] respondent and the 3[rd] respondent again forwarded the request of the petitioner and WP(C).No.18018/2013 **4** consequently, the 1[st] respondent finally sent a communication to the 3[rd] respondent to sent a proposal for assigning the land to the petitioner. Ext.P2 is the communication. After Ext.P2 communication, there was again delay in the matter and the petitioner approached the respondents and finally, the 3[rd] respondent issued Ext.P3 letter to the Tahsildar, Hosdurg, requiring him to initiate proceedings for assigning 3 cents of land sought for by the petitioner and to submit a report in the matter. 4. The Tahsildar, after conducting a site inspection submitted a report recommending assignment of 2 cents of land in which improvement like parking shed was already there. Petitioner again submitted a representation for assigning the entire 3 cents including the 1 cent portion forming the way to the bank and the proposal was returned for rectification. After further inspection by the Sub Collector, Kasaragod, along with the Village Officer, recommendation was submitted on 2.11.2011 by the Sub Collector, Kasaragod to assign the 3 cents of land to the WP(C).No.18018/2013 **5** petitioner at the market rate. Ext.P4 is the proceedings of the Sub Collector, Kasaragod. Thereafter, the 3[rd] respondent sent a communication, as evident from Ext.P5, to the 2[nd] respondent, recommending assignment of land at the market value but took a stand that the occupation is illegal and therefore, 1 ½ times amount of the market rate has to be realized from the petitioner for assignment. In the said communication, the 3[rd] respondent stated that the fair market value has been calculated at Rs.8 lakhs per cent by the Tahsildar and the Sub Collector has also concurred with the said value fixed. Arriving at the finding that the total fair market value for the 3 cents will come to Rs.24 lakhs, the 3[rd] respondent recommended assignment at an amount of Rs.36 lakhs stating that there is illegal encroachment. 5. On receipt of Ext.P5, petitioner submitted representation to the 2[nd] respondent, as evident by Ext.P6, pointing out that the land being notified as Government WP(C).No.18018/2013 **6** land and the price was fixed at Re.1 and even if the fair market value was taken, the price at which the immediate adjacent land was sold was Rs.4,20,000/- and that should have been taken as fair market value. The petitioner also submitted a representation to the Minister for Revenue, as evident by Ext.P7. Thereafter the 2[nd] respondent issued a communication as evident by Ext.P8, stating that, it has been decided that 3 cents of land in Resurvey No.204/1A1A1A1A1A of Hosdurg Village need not be assigned to the petitioner. The fact was communicated to the petitioner by the 3[rd] respondent as per Ext.P9 communication. Aggrieved by the same, this writ petition is filed with following prayers: - i. Issue a writ of certiorari or such other appropriate writ or order quashing Exht P8 and P9 orders passed by the 2[nd] and 3[rd] respondents respectively denying assignment of the 3 cents of land in R.S.No.204/1A1A1A1A1A of Hosdurg village to the petitioner. - ii. Issue a writ of mandamus or such other appropriate writ or order directing the respondents 1 to 3 to assign the 3 cents of land in WP(C).No.18018/2013 **7** - R.S.No.204/1A1A1A1A1A of Hosdurg village to the petitioner forthwith. - iii. Issue a writ of mandamous or such other appropriate writ or order directing the 2[nd] respondent to call for reports from the 3[rd] and 4[th] respondents and thereafter to reconsider Ext.P6 representation submitted by the petitioner and pass fresh orders thereon taking into consideration the directions given by this Hon'ble Court in Ext P1 Judgment and the reports of the 3[rd] and 4[th] respondents on the subject. - iv. Issue any other writ order direction as this Hon'ble Court deem fit in the facts and circumstances of the case. - v. To award the cost of this writ petition to the petitioner. (SIC) 6. Heard the learned counsel for the petitioner and the learned Government Pleader. 7. The contention of the petitioner is that Exts.P7 and P8 orders are passed without considering the directions issued by this Court in Ext.P1 judgment. The Government Pleader submitted that there is nothing to interfere with Exts.P8 and P9. 8. This Court perused Exts.P8 and P9. Ext.P9 is a WP(C).No.18018/2013 **8** consequential order based on Ext.P8 order. First of all, there is nothing in Ext.P8 to show that it is an order passed after giving an opportunity of hearing to the petitioner. This Court, in Ext.P1 judgment, issued certain directions. It will be better to extract the relevant portion of the above judgment: “This is not a consideration of the petitioner's case with reference to the necessary requirement under Land Assignment Act and Rules framed there under. It is mentioned in Rule 4 of Kerala Land Assignment Rules, 1964 that Govt. lands may be assigned on registry for the purpose of personal cultivation, house sites and beneficial enjoyment by adjoining registered holdings. The petitioner comes certainly within the 3[rd] category. Rule 7 deals with priority to be observed for assignment. It is stated in the said rule that whether any person is in occupation of the Govt. lands under the lease, whether current or time expired, or by way of encroachments not considered objectionable such land if such occupation is before the first day of August, 1971 shall be assigned to him on registry. The petitioner had claimed before Govt. that the petitioner society had been in possession of land since 1939 onwards. Ext.P8 does not disclose any consideration on this aspect. If this aspect is there, WP(C).No.18018/2013 **9** assignment to any other party does not arise in terms of the Rules. The relevant aspect has not been thus considered by Govt. A relevant aspect is not considered is a sufficient reason for interference under Article 226. Accordingly, Ext.P8 is quashed directing to consider the issue with reference to the counter raised by the petitioner including the occupation of the land since 1939 and the relevant aspect as contained in the Land Assignment Act and Rules. Original Petition is allowed to the above extent.” 9. A perusal of Ext.P8 would not show that it is an order passed consequent to Ext.P1 judgment. Even though some other proceedings are issued after Ext.P1, which is produced as exhibits in this writ petition, the Government took a different stand in Ext.P8, that also without following the directions in Ext.P1 judgment. Therefore, I am of the considered opinion that Exts.P8 and P9 are to be set aside and the Government should reconsider the matter in the light of the direction in Ext.P1 judgment. Therefore, this writ petition is disposed of with WP(C).No.18018/2013 **10** ## following directions: 1. Exts.P8 and P9 are set aside. 2. The 1[st] respondent is directed to reconsider the matter in the light of the specific directions in Ext.P1 judgment, as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment, after affording an opportunity of hearing to a representative of the petitioner. 3. The petitioner shall produce a certified copy of this judgment before the 1[st] respondent for compliance. SVD/JV sd/- **P.V.KUNHIKRISHNAN JUDGE** WP(C).No.18018/2013 **11** ## **`APPENDIX OF WP(C) 18018/2013`** ## `PETITIONER EXHIBITS` ``` EXHIBIT P1 A TRUE COPY OF THE JUDGMENT DATED 20/3/1997 IN OP NO.7908/1990 OF THIS HON'BLE COURT ``` ``` EXHIBIT P2 A TRUE COPY OF THE COMMUNICATION NO.78942/L2/96/RD DATED 12/12/2002 ISSUED BY THE IST RESPONDENT TO THE 3RD RESPONDENT ``` ``` EXHIBIT P3 A TRUE COPY OF LETTER NO.C1.14949/97 DATED 8/2/2006 ISSUED BY THE 3RD RESPONDENT TOO THE TAHSILDAR, HOSDURG TALUK ``` ``` EXHIBIT P4 A TRUE COPY OF THE REF.G.8403/10 DATED 2/11/2011 ISSUED BY THE SUB COLLECTOR,KASARAGOD AT KANHANGAD TO THE 3RD RESPONDENT ``` ``` EXHIBIT P5 S TRUE COPY OF THE COMMUNICATION NO.C1 4603/10 DATED 26/5/2012 SENT BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT ``` ``` EXHIBIT P6 A TRUE COPY OF THE REPRESDENTATION DATED 2/6/2012 SENT BY THE PETITIONER TO THE 2ND RESPONDENT ``` ``` EXHIBIT P7 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE HON'BLE MINISTER FOR REVENUE ``` ``` EXHIBIT P8 A TRUE COPY OF THE COMMUNICATION ``` ``` NO.36875/L2/2012/RERV.DATED 8/10/2012 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT ``` ``` EXHIBIT P9 A TRUE COPY OF LETTER NO.C1- 46036/10/K.DIS DATRED 30/1/2012 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER ```