K.B. Rohini v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY** ## **&** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNESDAY, THE 19TH DAY OF JUNE 2019 / 29TH JYAISHTA, 1941** **WA.No.1167 of 2015** **AGAINST THE JUDGMENT IN WPC 38012/2003 of HIGH COURT OF KERALA DATED 10.3.2015** ## **APPELLANT/PETITIONER IN OP:** **K.B.ROHINI, W/O.LATE K. KANNAN, R/AT KANNAN NILAYAM, ANANGOOR, KASARAGOD DISTRICT.** **BY ADV. SRI.KODOTH SREEDHARAN** ## **RESPONDENTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, THRIUVANANTHAPURAM - 695 001. 2 THE DISTRICT COLLECTOR KASARAGOD - 671 121. 3 THE SPECIAL TAHSILDAR (LA), LAND ASSIGMENT, KASARAGOD - 671 121. 4 THE COMMISSIONER LAND REVENUE, THIRUVANANTHAPURAM - 695 001. BY SR.GOVT. PLEADER SRI.SURIN GEORGE IPE** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **W.A.No.1167 of 2015** **2** ## **JUDGMENT** ## **A.K.Jayasankaran Nambiar, J.** The petitioner in W.P.(C)No.38012 of 2003 is the appellant herein, aggrieved by the judgment dated 10.3.2015 of the learned single Judge in the writ petition. The brief facts that led to the filing of the writ petition, are as follows: 2. The late husband of the writ petitioner, K.Kannan, had sought for an assignment of 2.55 acres of land in R.S.No.170/1b of Kasaragod Village claiming Kumki rights over the same for the beneficial enjoyment of the Warg lands owned by him, comprising of 9.41 acres of land in the same survey number. The term 'Kumki land' refers to a peculiar land tenure that obtained in the erstwhile District of South Kanara, before the re-organisation of States in 1956. South Kanara was prior to that a part of the State of Madras as were the lands in the Malabar region of present day Kerala. Kumki lands are usually Government owned waste lands within 100 yards of the lands under independent ownership (referred to as Warg lands) and the owners of Warg lands enjoy certain privileges in respect of Kumki lands. Such privileges include the use of Kumki lands for grazing cattle, cutting and collecting leaves, timber and other forest produce for agricultural and domestic purposes of the Kumkidar i.e. the person who is entitled to enjoy Kumki privileges. These lands are not alienable except with the land to which they are attached. It is on account of these features of Kumki land that the Kerala Land Assignment Rules recognises a preferential claim for assignment of Kumki land to the Kumkidar, subject to overriding public interest. **W.A.No.1167 of 2015** **3** 3. The application for assignment submitted by K.Kannan was as early as on 8.6.1964 and is produced as Ext.P1 in the writ petition. It would appear that pending consideration of the application submitted by K.Kannan, steps were taken by the revenue authorities for evicting the family from the said lands in terms of the Kerala Land Conservancy Act, 1957. This led K.Kannan to approach this court through O.P.No.2509 of 1964 challenging the steps for eviction. By Ext.P2 judgment dated 18.6.1965, this court set aside the steps taken for eviction of Kannan and directed that any further steps under the Kerala Land Conservancy Act, 1957 could be initiated only after consideration of the application preferred by the said Kannan, for assignment of the extent of 2.55 acres of Kumki land. 4. Pursuant to the said judgment, and despite the directions therein to consider the application, no steps were taken by the revenue authorities towards that end till 1970. By a communication K.Dis.1011/70 dated 23.11.1970, K.Kannan was informed by the Tahsildar that his application would be considered only after orders were issued by the Government with regard to the assignment of municipal lands. It is relevant to note that between the period from 1965, when Ext.P2 judgment was rendered, and 1970 when the Tahsildar issued the aforesaid communication, Kasaragod, where the land of the said Kannan was situated, became a Municipality with effect from 15.8.1966. Sometime in 1979, when Kannan approached the revenue authorities for follow up action on his application dated 8.6.1964, that was directed to be considered by this court through Ext.P2 judgment, he was informed that the original application was not traceable and accordingly, he submitted a fresh application dated 1.1.1979. **W.A.No.1167 of 2015** **4** 5. During the course of these proceedings, on finding that the application dated 1.1.1979 was not available in the files, we asked the learned Government Pleader to produce the original file which contained the application. On a perusal of the said file, we find that the application dated 1.1.1979 was submitted along with a covering letter of the same date. Paragraphs 5 and 6 of the said covering letter read as follows: “5. The extent of AC 3.10 in R.S.No.170/1 of Kasaragod Village has been under my effective possession and occupation for over fifteen years now I have made valuable improvements in the said land. I am a small holder having only 8 acres of patta land. I have 3 married sons and a married daughter. I am eligible for the assignment of the extent of 3.10 AC in R.S.No.170/1 on registry. I am willing to pay the market value of the land. 6. I therefore pray that the said extent of land in R.S.No.170/1 may be assigned to me. My application for assignment is still pending. I am however enclosing a fresh assignment application for ready reference if the original application is not readily traceable.” (emphasis supplied) 6. It is evident from the extracted portion of the covering letter that the application dated 1.1.1979 was submitted by Kannan only to be treated as a continuation of his original application dated 8.6.1964, and in the event the said original application was not readily traceable. The said application was however rejected by Ext.P4 communication dated 2.11.1991 of the Tahsildar which, being a non-speaking order, was impugned by Smt.K.B.Rohini, wife of Kannan, who by that time had expired, in O.P.No.13342 of 1991. By Ext.P5 judgment dated 30.7.1992, a learned single Judge of this court set aside Ext.P4 order of the Tahsildar and directed the Special Tahsildar, Kasaragod to consider and pass orders on the application dated 8.6.1964 that had been preferred by the late husband of Smt.Rohini, the appellant herein. The fresh consideration of the application was effected by the District Collector on 26.2.1996 when, by Ext.P6 order, he rejected the application for assignment of Kumki land by taking the **W.A.No.1167 of 2015** **5** stand that, in terms of the Government Order dated 30.11.1995, the maximum extent of land that could be assigned in a municipal area was 0.10 acres. On finding that the writ petitioner was not agreeable to the assignment of only 0.10 acres, the application preferred by the late husband of the writ petitioner for assignment of Kumki land to the extent of 2.55 acres was rejected. Although the writ petitioner carried the matter in Appeal before the Land Revenue Commissioner, the said Appeal was also rejected by Ext.P8 order dated 25.1.2002, upholding Ext.P6 order of the District Collector. It is impugning Exts.P6 and P8 orders that the writ petition was preferred before this court. 7. The learned single Judge, who considered the matter, took note of the contention advanced by the learned Government Pleader, on behalf of the respondents, that by virtue of the provisions of Rule 1A of the Kerala Land Assignment Rules, 1964, the lands situated within the limits of a Municipality were excluded from the purview of the Rules. Finding that the land in respect of which assignment was sought was within the limits of the Kasaragod Municipality, the learned single Judge found that the writ petitioner's claim for preferential assignment in terms of Rule 7A of the Kerala Land Assignment Rules could not be legally sustained. It was therefore found that the writ petitioner could not maintain a claim for assignment of Kumki lands after the notification of Kasaragod as a Municipality in 1966. On this basis, the learned single Judge found no reason to interfere with the impugned orders of the District Collector and the Land Revenue Commissioner and accordingly dismissed the writ petition. 8. Before us, it is the contention of the learned counsel for the appellant/writ petitioner Sri.Kodoth Sreedharan that by virtue of the directions in Ext.P2 judgment **W.A.No.1167 of 2015** **6** dated 18.6.1965, the respondents were obliged to consider the application for assignment of Kumki lands, preferred by late husband of the writ petitioner, in accordance with law prevailing as on the date of consideration of the application. It was on account of the delay occasioned by the respondents in considering the application, pursuant to the directions in Ext.P2 judgment, that the application came to be considered only after the notification of Kasaragod as a Municipality with effect from 15.8.1966. It is his submission, therefore, that notwithstanding that in subsequent proceedings before this court, directions were issued to the revenue authorities to consider the application dated 8.6.1964 for assignment of Kumki land submitted by the petitioner's late husband, the respondent revenue authorities applied the changed provisions of the law to determine the entitlement of the applicant for assignment of Kumki lands. This, according to the learned counsel, amounted to an illegal exercise since it is trite that the law governing the entitlement of an applicant to the assignment sought for is the law as on the date when the revenue authorities are legally obliged to consider the application preferred by the applicant. In the instant case, it is contended, the application ought to have been considered immediately after Ext.P2 judgment dated 18.6.1965 and had it been so considered, the objection with regard to the land being within the limits of a municipal area with effect from 15.8.1966, could not have been pressed into service by the respondents. 9. Per contra, it is the submission of the learned Senior Government Pleader Sri.Surin George Ipe that the application that was the subject matter of Ext.P4 order of the Tahsildar was the application submitted by the petitioner's late husband on 1.1.1979. It is contended, therefore, that if one were to apply the law as applicable on the date of **W.A.No.1167 of 2015** **7** this application, then the provisions of Rule 1A of the Kerala Land Assignment Rules would apply to exclude the provisions of Rule 7A of the Kerala Land Assignment Rules in its applicability to the land claimed by the petitioner. It is also the contention of the learned Government Pleader that, at any rate, there is nothing on record to indicate that the land, in respect of which assignment was claimed, actually formed Kumki to the Warg land owned by the petitioner's late husband. 10.1. On a consideration of rival submissions, we find force in the contention of the learned counsel for the appellant that the consideration of the application submitted by the writ petitioner's late husband ought to have been in accordance with the law and factual situation that obtained in the period immediately after 18.6.1965 i.e. the date of Ext.P2 judgment, when the respondents were obliged to consider the application for assignment of Kumki land preferred by the writ petitioner's late husband (see: State of Tamil Nadu v. M/s. Hind Stone and Others [(1981) 2 SCC 205]. While the said application was considered at a later point of time, after Kasaragod was notified as a Municipality, and the application rejected by the revenue authorities on the said ground, the fact remains that the legal provisions relied on by the revenue authorities to non-suit the claimant were not those that were applicable for a consideration of Ext.P1 application submitted by the writ petitioner's late husband. The law applicable had to be the one prevailing on the date the revenue authorities were legally obliged to consider the application which, in this case, arose as early as on 18.6.1965 or immediately thereafter, based on the directions issued in the said judgment. This is more so because it is the admitted case that K.Kannan was in actual possession of the land in question since 1958 and the land continues to be in the possession of the appellant herein even today. **W.A.No.1167 of 2015** **8** 10.2. The issue to be decided by the revenue authorities was whether the possession of the Kumki land by K.Kannan on that date could be regularised through an assignment order under the Kerala Land Assignment Rules. The delay occasioned by the respondents in considering the application cannot operate to defeat the entitlement of the applicant and when so considered, we must find that the provisions of Rule 1A of the Kerala Land Assignment Rules would not be attracted in the instant case. The revenue authorities ought to have considered the application of the petitioner's late husband by considering the subject matter of assignment as land in Kasaragod, before Kasaragod was notified as a Municipality with effect from 15.8.1966. The factual examination as to whether the land in question formed Kumki to the Warg land owned by K.Kannan had to be undertaken at that point in time. Also, merely because Kasaragod was notified as a Municipality subsequently, the entitlement of K.Kannan to the assignment of Kumki land based on his continued possession of the land since 1958 and thereafter till the present, could not be nullified. 10.3. We therefore cannot accept the contention of the learned Government Pleader that the law to be applied while considering the application submitted by the petitioner's late husband was the law as applicable on 1.1.1979, the date of the subsequent application preferred by the petitioner's late husband. As already noted in an earlier part of this judgment, the application dated 1.1.1979 was preferred under circumstances where the original application dated 8.6.1964 was missing in the files of the revenue authorities, and the covering letter to the application dated 1.1.1979 clearly indicates that the latter application was filed only for the purposes of indicating the contents of the earlier application and was to be relied on in the event of the earlier application not being located by the revenue authorities. **W.A.No.1167 of 2015** **9** 11. We also cannot accept the contention of the learned Government Pleader that there is no material to establish that the land, over which the Kumki right was claimed, formed Kumki to the Warg land owned by the petitioner's late husband. In none of the orders impugned before this court in the various rounds of litigation, had the revenue authorities rejected the application of the petitioner's late husband on this ground. As laid down in Mohinder Singh Gill and Another v. The Chief Election Commissioner, New Delhi and Others (AIR 1978 SC 851), the respondents cannot justify the decisions in the impugned orders by supplementing the reasons contained therein with other reasons in affidavits filed before the court that is considering the legality of the said orders. The legality of the impugned orders have to be tested on the basis of the reasons stated therein and the respondents cannot be permitted to urge new grounds at this belated stage. 12. Resultantly, we set aside the impugned judgment of the learned single Judge and allow the Writ Appeal, by quashing Exts.P6 and P8 orders of the revenue authorities. We further direct the respondents to issue formal orders assigning the extent of 2.55 acres of land in Re.Sy.No.170/1b of Kasaragod Village, which has been in her possession for many years, to the appellant/writ petitioner, within a month from today. ## Sd/- **Hrishikesh Roy, Chief Justice** ## Sd/- **A.K.Jayasankaran Nambiar, Judge** **/TRUE COPY/** **vpv** **P.A. TO JUDGE**