Jiji Zacharia and Anitha Jiji v. The Commissioner, Land Revenue, Thiruvananthapuram; The District Collector, Idukki; The Deputy Collector, Devikulam; The Tahsildar, Udumbanchola; Joy Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945** ## **WP(C) NO. 6954 OF 2010** ## **PETITIONERS:** |1|JIJI ZACHARIA| |---|---| ||VELLOOKUNNEL, SURYANELLI P.O., IDUKKI.| |2|ANITHA JIJI| ||WIFE OF JIJI SCARIA| ||VELLOOKUNNEL, SURYANELLI P.O., IDUKKI.| ||BY ADV SRI.P.RAMAKRISHNAN| ## **RESPONDENTS:** |1|THE COMMISSIONER, LAND REVENUE| |---|---| ||THIRUVANANTHAPURAM.| |2|THE DISTRICT COLLECTOR, IDUKKI.| |3|THE DEPUTY COLLECTOR, DEVIKULAM.| |4|THE TAHSILDAR, UDUMBANCHOLA.| |5|JOY THOMAS| ||SON OF THOMAS| ||THAZHEMANNIL, KANAKAPPALAM, ERUMELI P.O.| ||BY ADVS.| ||GOVERNMENT PLEADER| ||ADVOCATE GENERAL OFFICE KERALA| ||SRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL()| ||SRI.Y.JAFFAR, SPECIAL GOVERNMENT PLEADER (ADDL.AG)| THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 WP(C)No.6954/2010 ## **JUDGMENT** Ext.P18 order of the Tahsildar, Udumbanchola dated 12.05.2008 and Ext.P22 proceedings of the Commissioner of Land Revenue, Thiruvananthapuram dated 18.02.2010, are under challenge in the present Writ Petition. 2. The petitioners are alleged to be owners in possession and enjoyment of 2.62 Acres of land and two residential building in Sy.No.34/1 of Chinnakkanal Village, Udumbanchola Taluk. The land originally belonged to the 5th respondent Joy Thomas. He was assigned the land measuring 2.62 Acres under the Kerala Land Assignment Rules, 1964 as per the land assignment proceedings No.65/1977 evident from Ext.P1, copy of the application for assignment submitted under the provisions of the Act and Rules and Ext.P2 notice under Rule 12(1) of the aforementioned Rules and Ext.P6 patta dated 20.03.1993. Petitioner No.1 purchased the above said patta in the year 1995 as per document No.3038 of Rajakumary Sub Registry office from the 5[th] respondent and subsequently transferred to the 2[nd] petitioner as per document No.2315/2004 vide Exts.P7 and P8 respectively. The Tahsildar, Udumbanchola, 4[th] respondent, issued 3 WP(C)No.6954/2010 a notice to the 5[th] respondent and asked the details of Ext.P6 patta. On acquiring the knowledge, the petitioners made representations before the 4[th] respondent for seeking an opportunity and when reluctance was shown, approached this Court vide Writ Petition No.4138 of 2008. The said Writ Petition was closed vide judgment dated 18.02.2008 on the ground that the petitioners would be given opportunity of hearing. Accordingly, petitioners were given show cause notices under Section 12 of the Land conservancy Act, 1958 alleging encroachment of 0.1421 Hectares of land and another on the allegation of cancellation of patta being bogus. The aforementioned notices were challenged before this Court vide Writ Petition No.12977 of 2008 which was disposed on 11.04.2008 and the petitioners were given liberty to raise all contentions before the 4[th] respondent. The 4[th] respondent summoned the petitioners and the 5[th] respondent in the office on 09.04.2008 and sought the copy of the report on the basis of which notices Exts.P10 and Ext.P11 were issued. Thereafter, the petitioners and 5[th] respondent were issued Ext.P13 letter dated 10.04.2008 alleging various irregularities in issuance of Ext.P6 patta. The petitioners submitted Ext.P14 statement dated 17.04.2008 and 4 WP(C)No.6954/2010 also enclosed applications seeking copy of the finalised resurvey sketch of the property and copy of the sketch prepared by the special survey team. Similar application was also made by the 5[th] respondent. However, without considering the aforementioned documents, 4[th] respondent i.e., Tahsildar vide impugned order dated 12.05.2008 found that there were irregularities in the patta and cancelled the patta. The aforementioned order Ext.P18 was challenged in Writ Petition No.15064 of 2008 which was disposed of granting liberty toavail alternative remedy before the competent authority. An appeal Ext.P20 was preferred and during the pendency of the appeal, submitted an application seeking production of No.2 Land Assignment register, report of the Deputy Collector dated 17.03.2008 and letter dated 03.04.2008 of the District Collector referred to in Ext.P18, resulted into impugned order dated 18.02.2010 Ext.P22. 3. Sri.P.Ramakrishnan, learned counsel appearing on behalf of the petitioners, submitted that Exts.P18 and P22 are illegal and arbitrary. Patta has been cancelled on the following grounds : - (i) the application details were not found in the application register and assignment register. 5 WP(C)No.6954/2010 - (ii) No challans or other receipts towards the payment of land revenue and other charges were found in the file. - (iii) Date was not entered into the office copy of the patta - (iv) Published copy of 12 (1) notice at taluk office was not available in the file. - (v) Land is described as CHR - (vi) patta was issued after 15 years of assignment on registry. - (vii) Claim of the 5[th] respondent was that he was in possession of the land from 1966 was found to be incorrect and false. - (viii) 5[th] respondent was in possession of 3 Acres of property at Erumely in 1993. - (ix) 5[th] respondent did not cultivate the land and obtained the patta by submitting false declaration. - (x) Petitioner was running a resort in the land in contravention of Rule 8(2) of the Kerala Land Assignment Rules. - (xi) The Kerala Land Assignment (Regularisation of Occupation of Forest Land prior to 01.01.1977) Special Rules, - 1993 were promulgated for assignment, settlement and 6 WP(C)No.6954/2010 regularization of forest land under the occupation prior to 01.01.1977. The Rules were issued only as per the Government Order dated 19.03.2003. The order of registry Ext.P5 was issued much earlier i.e., in the year 1978. Thus in any case Rule 1993 would have no application in Chinnakkanal Village since there was no forest land in the said village. (xii) The Kerala Land Assignment Rules, 1964 do not stipulate that the land assigned under the Rules is to be used only for cultivation purposes because Rule 8(1) clearly provides that such land is heritable and alienable. Petitioners are the bonafide purchasers of the property as per the provisions of Section 41 of the Transfer of Property Act. 4. On the other hand, learned Government Pleader appearing on behalf of State submitted that the property in question belong to the Government considering the commercial potentiality of the property, the 5th respondent Joy Thomas with the help of the petitioners created a fraudulent document for the purpose of encroachment of Government land. Noticing the fact that there was violation in the assignment rules, steps to cancel the patta were initiated. Rule 4 of the Kerala Land Assignment 7 WP(C)No.6954/2010 Rules, 1964 clearly provides the purpose of assignment, that the Government can assign the land only for residential, agricultural and beneficial enjoyment of adjoining registered holdings. There is no provision for running the commercial activity which is totally illegal and impermissible. Notice Ext.P2 under Appendix V alleged to be issued by the then Tahsildar on 12.03.1978 could not have been issued as the said date was Sunday. The name of the 4[th] respondent was never found in place to show that he had occupied the property as per the land register maintained in the office of Tahsildar. 5. Patta No.65/77 was verified by the 4th respondent thoroughly and the following irregularities were found. - (a) Entry was not made in No.II register - (b) Value of land, tree value and other charges were not remitted by the assignee. - (c) There was a time gap of 15 years between the dates of order of Assignment Registry and issuance of patta. - (d) There was a delay in remitting the charges as stated by the assignee. But, the delay was not condoned by the Government or any authority. - (e) Assignee Joy Thomas submitted a false information in 8 WP(C)No.6954/2010 the application about the land in Sy.No.34/1 of Chinnakkanal Village. 6. In fact the application for assignment was submitted on 19.09.1977 whereas the date of order of assignment on the Registry was 22.04.1978. Patta was alleged to have been issued only on 20.03.1993. In the absence of the order for condonation of delay, there was no evidence to prove the innocence of the assignee and thus the 4th respondent arrived at the conclusion that LA No.65/77 is a bogus one. The petitioners were served with notice as per the provisions of Rule 8(3) of the Kerala Land Assignment Rules, 1964 to appear before the 4th respondent on 07.04.2008 as well as to produce documents, if any, before the cancellation of patta. They appeared only on 09.04.2008 and submitted an application for obtaining the details of the charges levelled against them much less the reasons for cancellation of patta. Certain defects in respect of patta No.65/77 were detected which were brought to the notice of assignee and the petitioners vide letter No.K2-100/08. The petitioners and assignee failed to rebut satisfactorily regarding the discrepancies and irregularities. The impugned order was passed on verification of records and after giving sufficient opportunity to the petitioners which are 9 WP(C)No.6954/2010 justiciable and legal. The whole purpose and intention of the petitioners is to drag the matter one way or other for the purpose of retaining illegal possession. 7. The assignee Joy Thomas for the purpose of obtaining the assignment of the land had given a false information in the application. Actually he was subsequently found to be in possession of 4 Acres of family property in Taluk Kanjirappally, which was sold in the year 1979 and one Acre land was purchased in Punalur Village. Thereafter, he had gone to Saudi Arbia for occupation and returned to India only in 1989. The land in Village Punalur was sold and another land measuring 3 Acres in Erumely was purchased. During all these period, neither the assignee resided or cultivated the land. All these factors were intentionally concealed from the authorities. The petitioners have constructed two concrete buildings in the land in question and had given the name “Green Jungle” and utilised for running a star type resort. The TR 5 receipt was received by the 5[th] respondent was neither purchased by the assignee or by the petitioners. 8. In support of the above contentions, the following case laws have been cited _**Haridas.R. v. State of Kerala and others** [2016 (5) KHC 615]_ , it was held that when a land is 10 WP(C)No.6954/2010 assigned to pattadar for personal cultivation, subsequent assignees would not be entitled in law to make any construction of commercial activity. The aforementioned judgment of the Single Bench was upheld by the Division Bench in **Mahindra Holidays & Resorts India Ltd. v. State of Kerala and others** [2019 (3) KHC 233], wherein the Government had cancelled the registry and assignment on finding that the land assigned for cultivation was being used for commercial purposes, for running a resort. The aforementioned judgment affirmed by the Division Bench was taken to the Supreme Court, wherein SLP is stated to have been withdrawn. 9. I have heard the counsel for the parties and appraised the paper book. 10. The various provisions in the Kerala Land Assignment Act and Kerala Land Assignment Rules, were intended to protect landless people by assigning to them Government land for cultivation and for other purposes. The Act and Rules are not intended for enriching persons who hold extensive land. In other words, there is no vested right in any person to claim assignment on the registry of Government land. The Rules contain the provisions for extending priority to landless people, members of 11 WP(C)No.6954/2010 Scheduled Caste and Schedules Tribes, ex-service men, persons disabled in active military services, who are dependents of those who were killed or disabled while in military service, small holders whose family income is less than Rs.10,000/-, certain categories of Kumkidars etc. The procedure for assignment is also provided in the Rules. Provision is made for preparing the lists of land to be reserved for Government or public purposes and the land to be set apart for assignment on registry, which are approved by the Government or authorised authority. 11. The 5[th] respondent as well as the petitioners failed to prove on record that at any point of time after the alleged assignment which was _prima facie_ found to be based on forged documents, ever cultivated or resided in the property. No proof in this regard was placed on record. This Court particularly asked the question to the counsel representing the petitioners whether for construction for running a commercial activity i.e., a resort under the name and style “Green Jungle” any permission for change of land has been sought from the competent authority, the answer was in negative. The authorities found that the entire documents did not actually bear the date nor were found in the records of authority competent to issue concerned documents for 12 WP(C)No.6954/2010 the purpose of assignment. The 5[th] respondent had not been fair and honest while submitting application for assignment of the land as he was found to be in ownership of major chunk of land and was thus disqualified. Similar controversy was also noticed in the judgment cited on behalf of the respondent wherein it was categorically held that commercial activity cannot be permitted to be carried out even if the rule permits alienation and heritance of land given on patta. The purpose is only for cultivation and by upbringing of the landless people as referred to above, but not to the benefit of rich people who hold extensive land like the one respondent No.5. This view of mine is derived from the judgment of this Court in **Varkey Abraham v. Secretary to Government (Revenue Department) and others** [2007 (3) KHC 365], paragraph 15 of which reads as under : _“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 Governnment 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 houses 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_ 13 WP(C)No.6954/2010 _are dependents 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. Provision 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 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.”_ 12. In _**Haridas**_ 's case (supra), subsequent assignees also, with the intervention of this Court claimed the right other than what conferred on the original assignee. The activity being carried out by the petitioners is violation of specific terms of the assignment. Therefore, the said illegality cannot be permitted to be perpetuated with impugnity through the intervention of this Court under Article 226 of the Constitution of India. Passage of 14 WP(C)No.6954/2010 time would not also change the character or assignment nor would any subsequent assignee claim any rights of enjoyment of the property on account of reason the property during the interregnum changed hands. Once the conditions are incorporated as conditions in the patta, running of a resort would be construed to be any other use, which the land is put, thus it would be in violation of the assignment. The Government is thus entitled to take the land back so assigned in the manner as has been noticed. 13. No permission or justification has been placed on record or assigned carrying on the commercial activity. Sub-rule (2) of Rule 8 of the Land Assignment Rules provide that the assignee or a member of his family or his successor in interest shall reside in the land if it is granted as house site or shall personally cultivate the same. If it is granted for cultivation, such residence or cultivation shall commence within a period of one year from the date of receipt of patta. It also envisages the condition that registry would be liable to be cancelled for contravention of any of the provisions. The violation of the provisions as per the notice was writ large, therefore, there cannot be any equity in favour of the petitioner to protect the possession of land carrying out a commercial activity i.e. a resort under the 15 WP(C)No.6954/2010 name and style “Green Jungle”. Orders are perfectly legal and justified, do not call for interference while exercising powers under Article 226 of the Constitution of India. Writ Petition sans merit, accordingly dismissed. Sd/- **AMIT RAWAL, JUDGE** csl 16 WP(C)No.6954/2010 ## **APPENDIX OF WP(C) 6954/2010** PETITIONERS' EXHIBITS: EXT.P1 : COPY OF APPLICATION FOR ASSIGNMENT OF THE LAND SUBMITTED BY THE 5TH RESPONDENT. EXT.P2 : COPY OF NOTICE UNDER RULE 12(1) OF THE LAND ASSIGNMENT RULES IN RELATION TO THE PROPERTY EXT.P3 : COPY OF THE MAHAZAR DATED 23.3.1978 - EXT.P4 : COPY OF STATEMENT DATED 29.3.1978 GIVEN BY THE 5TH RESPONDENT. EXT.P5 : COPY OF ORDER OF ASSIGNMENT ON REGISTERING UNDER RULE 9(1) OF THE LAND ASSIGNMENT RULES, IN 5TH RESPONDENT'S NAME EXT.P6 : COPY OF PATTA DATED 20.3.1993 EXT.P7 : COPY OF DOCUMENT NO.2315/04 DATED 11.10.04 EXT.P8 : COPY OF DOCUMENT NO.758/05 DATED 16.3.05 EXT.P9 : COPY OF JUDGMENT DATED 18.2.08 IN WP(C) NO.4138/08 EXT.P10 : COPY OF NOTICE DATED 3.4.08 ISSUED BY THE 4TH RESPONDENT EXT.P11 : COPY OF NOTICE DATED 4.4.08 ISSUED BY THE 4TH RESPONDENT EXT.P12 : COPY OF JUDGMENT DATED 11.4.08 ISSUED BY THE 4TH RESPONDENT EXT.P13 : COPY OF LETTER DATED 10.4.08 ISSUED BY THE 4TH RESPONDENT EXT.P14 : COPY OF STATEMENT DATED 17.4.08 SUBMITTED BY THE PETITIONERS AND ENCLOSED DOCUMENTS EXT.P15 : COPY OF THE STATEMENT SUBMITTED BY THE 5TH RESPONDENT WITH DOCUMENTS EXT.P16 : COPY OF LETTER DATED 17.4.08 FROM THE PETITIONER TO THE 4TH RESPONDENT 17 WP(C)No.6954/2010 EXT.P17 : COPY OF APPLICATION DATED 17.4.08 SUBMITTED BY THE 5TH RESPONDENT EXT.P18 : COPY OF THE ORDER DATED 12.5.08 ISSUED BY THE 4TH RESPONDENT EXT.P19 : COPY OF JUDGMENT DATED 22.5.2008 IN WP(C)NO.15064/08 EXT.P20 : COPY OF MEMORANDUM OF APPEAL DATED 9.6.08 SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT EXT.P21 : COPY OF APPLICATION DATED 17.2.2010 SUBMITTED BY THE PETITIONER'S COUNSEL BEFORE THE 1ST RESPONDENT EXT.P22 : COPY OF ORDER DATED 18.2.2010 PASSED BY THE 1ST RESPONDENT ADDITIONAL EXHIBITS : EXT.P23 : PHOTOGRAPHS SHOWING ACTUAL LIE AND NATURE OF THE LAND OWNED BY THE PETITIONER EXT.P24 : COPY OF RELEVANT PAGE OF NO.2 REGISTER SHOWING THE ISSUANCE OF LA 65/77 RESPONDENTS' DOCUMENTS: EXT.R4(a) : COPY OF PHOTOGRAPHS |EXT.R4(a) : COPY OF|PHOTOGRAPHS| |---|---| |Annexure R4(a)|COPY OF PROPERTY TAX PERTAINING TO<br>BUILDING NO.321| |Annexure R4(b)|COPY OF THE PROPERTY TAX PERTAINING<br>BUILDING NO.320| |Annexure R4(c)|COPY OF THE AFFIDAVIT SUBMITTED BY THE<br>PETITIONER| |Annexure R4(d)|COPY OF THE NOC ISSUED CHINNAKKANAL<br>GRAMA PANCHAYAT| |Annexure R4(e)|COPY OF THE JUDGMENT IN HARIDAS V. STATE<br>OF KERALA [2016(5)KHC 615]| |Annexure R4(f)|COPY OF THE JUDGMENT IN 2019 (3) KHC 233| 18 WP(C)No.6954/2010 |Annexure R4(g)|COPY OF THE JUDGMENT IN 2018(4)KHC 827| |---|---| |Annexure R4(h)|COPY OF WP(C) NO.26746/2020 ALONG WITH<br>EXHIBITS| |Annexure R4(i)|COPY OF THE ORDER DATED 2.12.2020 IN<br>WP(C)NO.26746/2020| |Annexure R4(j)|COPY OF THE LICENCE DATED 23.11.2021<br>ISSUED BY CHINNAKKANAL GRAMA PANCHAYAT|