K.J. Alexander v. Grama Panchayath, Kozhencherry; District Collector, Pathanamthitta; Tahsildar, Kozhencherry; Government of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 31ST DAY OF MARCH 2016/11TH CHAITHRA, 1938** ## **OP.No. 21189 of 2001 (V)** **-------------------------** ## **PETITIONER(S):** **---------------------** **K.J.ALEXANDER, KOIKKAPARAMBIL, KOZHENCHERRY, REPRESENTED BY M.J.ABRAHAM, NAMAKKUZHIKKAL HOUSE, THEKKUMALA P.O., KOZHENCHERRY, BY POWR OF ATTORNEY DATED 16.03.1990.** **BY ADVS.SRI.R.RAGHUNANDANAN SRI.P.V.JYOTHI (PALAKKAPPILLIL)** **RESPONDENT(S):** **------------------------** **1. GRAMA PANCHAYATH, KOZHENCHERRY, REPRESENTED BY SECRETARY,** **2. DISTRICT COLLECTOR, PATHANAMTHITTA.** **3. TAHSILDAR, KOZHENCHERRY.** **4. GOVERNMENT OF KERALA, REPRESENTED BY CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, THIRUVANANTHAPURRAM.** **R1 BY ADV. DR.K.P.SATHEESAN (SR.) R1 BY ADV. SRI.K.K.GOPINATHAN NAIR R2-R4 BY GOVERNMENT PLEADER SRI.P.V.ELIAS** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 31-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P.No. 21189/2001** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **P1. COPY OF THE GENERAL POWER OF ATTORNEY DTED.16.3.1990** - **P2. COPY OF THE PATTA DTD.9.5.1967.** - **P3. COPY OF THE PROPERTY TAX RECEIPTS FOR 96-97 TO 98-99.** - **P4. COPY OF THE PROPERTY TAX RECEIPTS FOR 99-2000 TO 2001-02.** - **P5. COPY OF THE APPLICATION DTD.12.4.1999 BEFORE R1.** - **P6. COPY OF THE APPELLATE ORDER DATED 23.2.2001.** - **P7. COPY OF THE APPLICATION.** - **P8. COPY OF THE PROCEEDINGS DTD.10.12.1996.** - **P9. COPY OF THE JUDGMENT IN O.S.No. 271/2001 OF MUNSIFF'S COURT, PATHANANTHITTA, DTD.15.3.2007.** - **P10. COPY OF THE TAX RECEIPT DTD.14.10.05.** - **P11. -DO- DTD.24.12.07.** - **P12. -DO- DTD.24.2.2010.** - **P13 -DO-.DTD.8.11.2010.** - **P14 COPY OF THE CERTIFICATE DTD.28.12.998 BY R3.** - **P15. COPY OF THE PHOTOGRAPHS OF PROPERTY COVERED BY Ext.P.2.** - **P16. COPY OF THE JUDGMENT IN O.P.No. 27597/2000 DTD.28.9.2000.** - **P17. COPY OF THE ORDER OF THE DISTRICT COLLECTOR, PATHANAMTHITTA, DTD.24.5.1996.** - **P18. COPY OF THE LETTER DTD.18.8.98 BY DISTRICT COLLECTOR, PATHANAMTHITTA.** **P19. COPY OF THE LEGAL OPINION DTD.22.12.98 ISSUED BY THE DISTRICT GOVT. PLEADER, PATHANAMTHITTA.** - **P20. COPY OF THE COMMON JUDGMENT IN APPEAL SUIT NO.77/2007&128/2014 OF DISTRICT COURT, PATHANAMTHITTA.** - **P21. COPY OF THE THANDAPER ACCOUNT DATED.13.7.2015 ISSUED BY THE VILLAGE OFFICER, KOZHENCHERRY.** - **P22. COPY OF THE COMMISSION REPORT IN THE MUNSIFF'S COURT, PATHANAMTHITTA.** - **P23. COPY OF THE JUDGMENT IN W.A.No. 2380/998 OF THIS COURT DTGD.6.2.2001. 24. COPY OF THE LETTER BY THE LAND ACQUISITION OFFICER (GENERAL), PATHANANTHITTA, DTD.22.8.2015.** - **P25. COPY OF THE DISCHARGE CERTIFICATE.** **P26. COPY OF THE SKETCH OF THE PROPERTY SY.NO.281/6-1 AND 281/6-3 OF MALLAPUZHASSERY VILLAGE.** - **P27. COPY OF THE PHOTOGRAPHS OF THE PROPERTY.** - **P28. COPY OF THE SKETCH PREPARED BY THE PETITIONER.** ## **RESPONDENT(S)' EXHIBITS:** ## **R1** **A COPY OF THE JUDGMENT DTLD.6.2.1001 IN W.A.No. 2112/1997 OF THIS COURT.** **B. COPY OF THE ORDER OF THE SUPREME COURT IN SPECIAL LEAVE APPEALS (CIVIL) NOS.8078, 8079/2001 DTD.11.5.2001. C. COPY OF THE MAHAZAR DTD.4.7.2001 PREPARED BY THE VILLAGE OFFICER. D. COPY OF THE SKETCH GIVE BY THE VILLAGE OFFICER, KOZHENCHERRY E(SIC). COPY OF THE ORDER DATED 30.11.2010 IN R.P.NO.927/2009 IN O.P.No. 21189/2001.** ## **R3** - **A. COPY OF THE RELEVANT PAGES OF THE PURAMBOKE REGISTER. B. COPY OF THE ROUGH SKETCH DTD.17.3.2016. C. COPY OF THE ROUGH SKETCH. D. COPY OF THE RELEVANT PAGE OF THE BASIC TAX REGISTER. E. COPY OF THE RELEVANT PAGE OF THE PURAMBOKE LAND MAINTAINED IN the NARANGANAM VILLAGE.** **F. COPY OF THE LOCATION SKETCH DTD.8.3.2016 PREPARED BY THE VILLAGE OFFICER NARANGANAM.** **G. COPY OF THE ORDER OF THE DISTRICT COLLECTOR, PATHANANTHITTA DTD.8.12.2015.** **H. COPY OF THE REPORT OF THE VILLAGE OFFICER, ARANMULA DATED 4.3.2016.** **I. COPY OF THE REPORT OF THE VILLAGE OFFICER, MALLAPUZHASSERY DTED.3.3.2016.** **J COPY OF THE REPORT OF THE VILLAGE OFFICER, KIDANGANNOOR DATED 4.3.2016.** sdk+ ///True copy/// P.S. to Judge ALEXANDER THOMAS, J. ================== ## O.P.No. 21189 of 2001 ================== Dated this the 31[st] day of March, 2016 ## J U D G M E N T The petitioner is an Ex-Service man, who was assigned Ext.P-2 patta in land assignment proceedings in L.A.No.123/1967 dated 9.5.1967 as a house site as per the provisions contained in Rule 7(2) (i) of the Kerala Land Assignment Rules, 1964 in respect of 5.924 cents of dry land in Sy.Nos.281/6-1, 281/6-2 and 281/6-3 of Kozhenchery Vilage, Kozhenchery Taluk. The said assignment was made in accordance with the priority and preference granted to ExService men in the matter of assignment of land. The petitioner has been in enjoyment and possession of the said property without any interruption and has been regularly paying the land tax for the land. As evident from Exts.P-3 and P-4 he had paid the land tax for the years from 1996-97 upto 2001-02. It is averred that the petitioner has constructed a small building in the said property and when it was in a dilapidated condition, he wanted to construct a new building and he submitted an application dated 16.2.1999 before the 1[st] respondent-Kozhenchery Grama Panchayath praying for O.P.21189/2001 - : 2 :- grant of building permit. By Ext.P-5 order dated 12.4.1999 the said application was rejected by the 1[st] respondent-Panchayath. In Ext.P-5 it has been stated that some of the lands adjacent to the petitioner's land falls in the “Kozhenchery- Vandippetta Revenue puramboke” and that as the Panchayath requires the said land for the public purpose of developing the bus stand of the locality, they have taken up the matter with the Governmental authorities concerned for evicting persons who are in possession of such land and that the land of the petitioner mentioned in the application for building permit covered by Sy.Nos.281/6-1, 281/6-2 and 281/6-3 which fall within the assigned patta lands and therefore the Panchayath has decided to request the Governmental authorities concerned for acquisition of the petitioner's land and that therefore the petitioner's request for grant of building permit cannot be granted, etc. The petitioner filed appeal against the impugned Ext.P-5 rejection order before the Deputy Director of Panchayaths. As no action was forthcoming on that behalf, he had filed a Writ Petition, as O.P.No.27597/2000 before this Court praying for directions to quash the impugned rejection order and for a mandamus to direct the appellate authority concerned to dispose of O.P.21189/2001 - : 3 :- the above said appeal and for a direction in the matter of grant of building permit, etc., and this Court as per Ext.P-16 judgment dated 28.9.2000 had disposed of O.P.No.27597/2000 with direction that the competent Deputy Director of Panchayaths, who is the appellate authority, shall consider the appeal of the petitioner and dispose of the same on merits within two months from the date of receipt of a copy of the judgment. The Deputy Director of Panchayaths, after affording a reasonable opportunity to the petitioner and the 1[st] respondent-Panchayath, had disposed of the appeal as per Ext.P-6 order dated 23.2.2001 allowing the said appeal and finding that the petitioner is the absolute owner of the property and that he has no other land and that the Panchayath has not taken any steps to acquire the said land, there is no justification to deny building permit to the petitioner and accordingly the Panchayath was directed as per Ext.P-6 to consider the application of the petitioner for grant of building permit and grant permission to construct the building subject to the provisions contained in the Building Rules. To effectuate the directions in Ext.P-6 appellate order, the petitioner has submitted Ext.P-7 application before the 1[st] respondent for issue of building permit. However, no action was O.P.21189/2001 - : 4 :- forthcoming from the Panchayath and his application was kept pending without passing orders thereon. It appears that about 9 persons who were in occupation of the land adjacent to the petitioner's land, were kuthakappattam lessees and steps were taken by the Governmental authorities for eviction of those lessees and other persons in unauthorised occupation of the puramboke land based on the request of the Panchayath and it is averred that the 1[st] respondent had removed some of the structures thereon and that while doing so, destroyed part of the building situated in the petitioner's property as well. Apprehending that some of the officials concerned may take unlawful action to evict the petitioner from his land, the petitioner preferred the instant Writ Petition on 13.7.2001 with the prayers for a direction to the 1[st] respondentPanchayath to issue building permit to the petitioner as ordered in Ext.P-6 and for a direction not to disturb the possession and enjoyment of the property of the petitioner, covered by Ext.P-2, etc. Later, some of the officials concerned of the respondents have evicted not only the kuthakapattam lessees but also the grantees of the land assignment patta like the petitioner and another person. Thereupon, the petitioner had amended the Writ Petition to include O.P.21189/2001 - : 5 :- a prayer for a direction to the respondents to restore the possession of the property to the petitioner in the original condition, etc. The 1[st] respondent-Panchayath filed a counter affidavit dated 15.3.2004 in this case in which it has been clearly admitted in para 3 thereof that the averment of the petitioner in para 2 of the petitioner that he is the beneficiary of Ext.P-2 land assignment patta is true but that since the land was later found required for public purpose, the patta was cancelled as per Ext.R-1(a) dated 10.12.1996 and pursuant to Ext.R-1(a), the Village Officer concerned had taken possession of the petitioner's land on 4.7.2001 and handed over the same to the 1[st] respondent-Panchayath as per Ext.R-1(b) mahazar, etc. That petitioner's land along with certain other adjacent lands were handed over to the Panchayath on 4.7.2001 and the same is being utilised for public purposes like expansion of bus stand, widening of road, etc. As regards the directions issued in Ext.P-6 appellate order, it is stated that since Ext.P-2 patta has been cancelled as per Ext.R-1(a) he is no longer the owner of the same and therefore he is not entitled to secure the building permit. It is further contended that the 3[rd] respondent-Tahsildar had rightly cancelled Ext.P-2 patta as per Ext.R-1(a) and that the land is now in the possession of the O.P.21189/2001 - : 6 :- 1[st] respondent-Panchayath as per Ext.R-1(b) mahazar and that therefore the petitioner cannot have any claim over the said land, etc. 2. The Writ Petition came up for final hearing before this Court on 11.7.2006 and thereupon this Court passed judgment dated 11.7.2006 in this Writ Petition which reads as follows: “It is submitted that the writ petition has become infructuous. It is accordingly dismissed.” It is pointed out by the learned counsel for the petitioner that the petitioner was abroad during the above said period and therefore he was not in a position to instruct his counsel as to the up-to-date developments in the case and later on enquiry he came to know about the dismissal of the O.P on 11.7.2006 and thereafter it was realised that the counsel for the petitioner never made any submission before this Court on 11.7.2006 that the Writ Petition has become infructuous and that the dismissal of the Writ Petition was plainly wrong and tenable, etc. Aggrieved by the dismissal of the Original Petition, the petitioner had filed a Review Petition as R.P.No.927/2009 and after hearing the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 2 to 4 and the learned counsel for the 1[st] respondent- O.P.21189/2001 - : 7 :- Grama Panchayath, this Court was convinced that the impugned judgment dated 11.7.2006 dismissing the O.P.No.21187/2001 is liable to be reviewed and recalled and that so long as one of the main points in the dispute in the Original Petition was relating to the issuance of the building permit which has not so far been issued to the petitioner, this Court was convinced that the judgment dismissing the Writ Petition as infructuous is liable to be recalled. Accordingly, this Court as per order dated 30.11.2010 had allowed R.P.No.927/2009 and recalled the judgment dated 11.7.2006 dismissing the Original Petition and thus restored the Writ Petition and posted it for hearing. 3. Thereafter, the petitioner has filed I.A.No.17408/2010 in the Writ Petition along with affidavit dated 9.12.2010 praying for amendment of the Writ Petition by incorporating additional facts, grounds and reliefs. The order cancelling Ext.P-2 patta has been produced as Ext.P-8 in that amendment application. This Court had taken up the said application for amendment on 21.12.2010. This Court after hearing all the parties concerned had passed the following order on the said application for amendment:- “Heard. This is an application to amend the Original Petition by incorporating additional facts, grounds and reliefs. Not opposed. O.P.21189/2001 - : 8 :- Allowed. Petitioner to produce copies of the amended writ petition on or before 3.1.2011. Post the Original Petition on 4.1.2011 as per roster.” Thus, it can be seen that none among the respondents including the 1[st] respondent-Panchayath had opposed the said application for amendment and the same has been allowed. Therefore, needless to say the amended prayers will relate back to the date of filing of the Original Petition on 12.7.2001. 4. In the amended pleas, the petitioner has made elaborate contentions that the impugned Ext.P-8 cancellation of assignment was ultra vires the provisions in Rule 8(3) of the Kerala Land Assignment Rules, 1964, which deals with the strict provisions in the matter of cancellation of grant of land assignment. In the amended pleas it is also stated that Ext.P-8 cancellation of assignment is in respect of not only the petitioner herein but also in respect of another assignee in land assignment proceedings LA No.3/1971 (pertaining to one Sri.Mathai Thomas) and that the successor in interest of the said Sri.Mathai Thomas had challenged Ext.P-8 herein in O.S.No.271/2001 before the Munsiff's Court, Pathanamthitta, and as per Ext.P-9 judgment and decree rendered on 15.3.2007 in O.S.No.271/2001 on the file of the Munsiff's Court, O.P.21189/2001 - : 9 :- Pathanamthitta, it was found after full-fledged trial that the said impugned cancellation proceedings dated 10.12.1996 (Ext.P-8 herein/Ext.B-1 in the suit) is illegal and that the said order has been passed by the Tahsildar violating the principles of natural justice. It is further averred in the amended pleas that the impugned Ext.P-8 proceedings have been issued in flagrant violation of the principles of natural justice and that the petitioner was not granted a reasonable opportunity before the issuance of the impugned cancellation order. It is further stated that the sole ground cited in the impugned Ext.P-8 is that the said land is required for the public purpose of widening of the road in the heart of the town and that the said ground is not one of the permissible or relevant grounds contemplated in Rule 8(3) of the Kerala Land Assignment Rules. It is also urged therein that the impugned Ext.P-8 has been issued by the 3[rd] respondent Tahsildar on account of the dictation imposed on him by the 2[nd] respondent District Collector, who is his superior, as per the proceedings dated 24.5.1996 cited in Ext.P-8 order and that therefore the impugned decision at Ext.P-8 is also tainted by the dictation imposed by the superior officer, etc. The petitioner had later filed an additional affidavit dated 27.1.2014 producing O.P.21189/2001 - : 10 :- therewith Exts.P-10 to P-13 tax receipts and Ext.P-14 possession certificate. Exts.P-10 to P-13 are the land tax receipts for the abovesaid property of the petitioner issued by the Village Officer concerned for the periods 2002-2003 to 2010-2011 respectively. Ext.P-14 is the certificate dated 28.12.1998 issued by the 3[rd] respondent Tahsildar, Kozhencherry, certifying that the petitioner is having ownership and possession of the aforestated property mentioned Ext.P-2 patta and that the said certificate is issued for production before the Kozhencherry Grama Panchayat. It is relevant to note that Ext.P-14 certificate dated 28.12.1998 has has been issued by the 2[nd] respondent Tahsildar much after the date of issuance of the impugned Ext.P-8 dated 10.12.1996. The petitioner has also filed an additional affidavit dated 9.1.2015 producing therewith Ext.P-15 series, which are photographs of the locality, in which the land in question is situated. 5. The 1[st] respondent Grama Panchayat had later filed an additional counter affidavit dated 20.2.2015 to the amended pleas in the Writ Petition. Though the 1[st] respondent Panchayat has specifically admitted in the impugned Ext.P-5 order dated 12.4.1999 as well as in the first counter affidavit dated 15.3.2004 O.P.21189/2001 - : 11 :- that the land in question is patta land assigned to the petitioner, etc. and that it was later cancelled as per the order dated 10.12.1996 of the 2[nd] respondent Tahsildar, etc. Whereas in the additional counter affidavit dated 20.2.2015, the 1[st] respondent Panchayat has taken a volte-face in their stand by taking up a new contention that the land claimed by the petitioner in Ext.P-2 is only a kuthakappattam lease land granted by the Governmental authority concerned and that all the kuthakappattam lessees in the disputed area in question including the petitioner were sought to be evicted therefrom, which resulted in various Writ Petitions like O.P.Nos. 4195/1996, 4177/1996, 4183/1996, etc. which were dismissed by this Court as per the judgment dated 20.3.1996 and that the petitioner is also one of the parties thereto and that the dismissal of his Original Petition has been again affirmed by the Division Bench in Ext.R-1(a) judgment dated 6.2.2001 in W.A.No. 2112/1997 and connected Writ Appeals and that subsequently the Apex Court had also affirmed the same in Ext.R-1(b) SLP order dated 11.5.2001, etc. and that along with the other kuthakappattam lessees, the petitioner was also a party in some of the proceedings before the District Collector, etc. and that as the stand of the Panchayat and O.P.21189/2001 - : 12 :- the Government that all the kuthakappattam lessees in that area are liable to be evicted was upheld by all the courts, all such kuthakappattam lessees including the petitioner were evicted lawfully from their lands concerned on 4.7.2001. It is also pointed out that the petitioner has suppressed these crucial aspects and that the issue as to whether the petitioner is to be evicted from the land as a kuthakappattam lessee has been fully affirmed by this Court in a series of Writ Petitions as in the aforementioned O.Ps. which were later confirmed by the Division Bench in Ext.R-1(a) and which was also affirmed by the Apex Court in Ext.R-1(b) SLP order and that therefore the said issue has become final and conclusive and the eviction of the petitioner and other similarly placed kuthakappattam lessees already effected on 4.7.2001 has become final and conclusive and that the petitioner cannot re-agitate the same in any manner. It is true that the holder of a kuthakappattam lessee is a lessee in respect of a lease granted by the Governmental authority concerned and therefore such a lessee is liable to be evicted in accordance with the provisions contained in the rules governing the kuthakappattam lease as held by Division Bench of this Court in Ext.R-1(a) judgment, etc. Whereas, on the other hand, O.P.21189/2001 - : 13 :- if a person is the recipient of a land assignment patta in terms of the Kerala Government Land Assignment Act and the Kerala Land Assignment Rules framed thereunder, then the grant of such an assignment can be cancelled only by virtue of the limited grounds envisaged as in Rule 8(3) of the Kerala Land Assignment Rules, 1964. Therefore, if the contention of the 1[st] respondent Panchayat that the petitioner herein is also a kuthakappattam lessee is correct, then he cannot have any case whatsoever to urge before this Court, as that issue has already been factually and legally concluded, if as a matter of fact, the petitioner was also one of the parties to those Writ Petitions, as alleged by the Panchayat. 6. In order to rebut these new pleas of the 1[st] respondent Panchayat, the petitioner has filed a detailed reply affidavit 24.9.2015 producing therewith Exts.P-15 to P-24 additional documents. As stated earlier, Ext.P-16 is the judgment dated 28.9.2000 of this Court in O.P.No.27597/2000, which led to the issuance of Ext.P-6 appellate order by the Deputy Director of Panchayats. The petitioner has produced Ext.P-17 proceedings dated 24.5.1996 of the 2[nd] respondent District Collector, which are in relation to the proceedings issued against the kuthakappattam O.P.21189/2001 - : 14 :- lessees concerned. The names and details of each of the nine kuthakappattam leasees, who were occupying lands adjacent to the petitioner's land are given in Ext.P-17. On a perusal of Ext.P-17 it can be seen that the petitioner's name does not figure among any one of the kuthakappattam lessees specifically covered in Ext.P-17. Ext.P-18 is also yet another proceedings dated 18.8.1998 of the 2[nd] respondent District Collector against such kuthakappattam lessees and a mere perusal of Ext.P-18 proceedings would make it clear like the day light that the petitioner is not one among the kuthakappattam lessees. True that there is an incidental observation towards the conclusion of Ext.P-17 proceedings that the land already assigned, if required by the Panchayat can be got back by issuing proceedings for cancellation of the assignment order. A reading of Ext.P-17 would make it clear that the same was directly and substantially in respect of the kuthakappattam lessees concerned and not as against the assignees of land like the petitioner and Sri.Mathai Thomas, who were covered by Ext.P-8. A mere observation by the District Collector in Ext.P-17 that land already assigned, if required by the Panchayat can be got back by issuing proceedings for cancellation of the assignment O.P.21189/2001 - : 15 :- order will not in any way imply that the petitioner herein is a kuthakappattam lessee. On the other hand, that would conclusively show that even the 2[nd] respondent District Collector was conscious that there were other assignees of land, other than the kuthakappattam lessees in that area and that as against such assignees of land, the eviction proceedings directed against kuthakappattam lessees will not be applicable and that it is for the authorities concerned to take appropriate action that may be necessary, if so warranted for the cancellation of the land assignment granted to persons like the petitioner, as envisaged in the Rules. Moreover, the petitioner has clearly averred that the petitioner herein was neither a petitioner nor a respondent either in any of the various Writ Petitions which led to Ext.R-1(a) judgment or in any of the Writ Appeal, covered by Ext.R-1(a) judgment. It has also been asserted that the petitioner was not a party in Ext.R-1(b) SLP proceedings before the Apex Court, as he was not a kuthakappattam lessee. Ext.P-19 is the legal opinion given by the District Govt. Pleader on 28.12.1998, which led to the issuance of Ext.P-14 ownership and possession certificate dated 28.12.1998. A mere perusal of Ext.P-19 would make it clear that even the O.P.21189/2001 - : 16 :- Revenue authorities concerned have clearly admitted that earlier when the petitioner had an apprehension that he may be evicted from the land by the authorities concerned, he was constrained to institute a civil suit as O.S.No. 104/1992 before the Munsiff's Court, Pathanamthitta, seeking appropriate injunction to restrain the defendants therein (State of Kerala & others) from trespassing into his abovesaid property and committing waste. Therein, the defendant State authority admitted in the written statement filed in O.S.No. 104/1992 that the plaint schedule in question (Ext.P-2 herein) was assigned in favour of the petitioner herein as per land assignment proceedings LA No.123/1967 and he was allotted thandapper account No.3372 and that the Governmental authorities have no intention to evict the petitioner herein and that therefore the plaintiff has no cause of action to institute the said suit. In view of the specific stand taken by the defendants therein, the Munsiff's court concerned was constrained to dismiss O.S.No. 104/1992 as per the judgment and decree rendered on 24.6.1994 on the ground that the plaintiff has no cause of action in view of the said stand taken by the defendants State authorities. In view of these aspects, the District Govt. Pleader opined in Ext.P-19 that possession O.P.21189/2001 - : 17 :- certificate can be issued to the applicant, etc. Ext.P-20 is the appellate judgment (In A.S.Nos.77/2007 and 128/2014 on the file of the District Court, Pathanamthitta) as against Ext.P-9 judgment and decree in O.S.No.271/2001. Therein, the appellate court has fully concurred with the considered finding of the trial court that the cancellation of the patta granted in respect of the other beneficiary (Sri.Mathai Thomas) was illegal and legally wrong and that the plaintiff therein is liable to be put back possession in the said land. The first appellate court has made variations only in respect of the other findings of the trial court regarding the liability of the defendant authorities concerned to face proceedings for the disobedience of the interim order passed by the trial court. Ext.P21 is true copy of the thandapper account No.3372 allotted to the petitioner in respect of Ext.P-2 land and Ext.P-21 has been issued by the Village Officer concerned on 13.7.2015. Ext.P-22 is the Advocate Commissioner's reported dated 19.2.1992 including the mahazar submitted in the aforestated O.S.No.104/1992 before the Munsiff's Court, Pathanamthitta, wherein inter alia the Advocate Commissioner has clearly reported the existence of a building having age more 25 years as on that date in the land in question O.P.21189/2001 - : 18 :- and the said building is in dilapidated condition. Therefore, Ext.P-22 is a clear material before the civil court concerned, which has clearly disclosed that there was in fact a building in Ext.P-2 land as on 1967. Ext.P-23 is the judgment of the Division Bench in Writ Appeal, W.A.No. 2112/1997, which has already been produced as Ext.R-1(a) in the additional counter affidavit of the Panchayat. Ext.P-24 series consisting of 8 documents are materials furnished to the petitioner by the authorities concerned, under the Right to Information Act, wherein it has been clearly stated that the 1[st] respondent has not taken any steps whatsoever for setting in motion any acquisition proceedings as against the petitioner's land at any point of time during the period 9.5.1967 upto 16.5.2015. 7. The 1[st] respondent Panchayat has subsequently filed a supplemental counter affidavit dated 25.2.2016, wherein the 1[st] respondent Panchayat has again taken an entirely different change of stand. In the said supplemental counter affidavit, the 1[st] respondent has fully given up the their previous plea taken up in the aforestated counter affidavit dated 20.2.2015 and it has been clearly admitted therein that the land in question covered by Ext.P-2 is land assigned to the petitioner under the Kerala Government Land O.P.21189/2001 - : 19 :- Assignment Act and Kerala Land Assignment Rules, concerned. The Panchayat has fully given up their plea that the petitioner is a kuthakappattam lessee and that his kuthakappattam lease has already been duly terminated along with the termination of the leases granted to other lessees, etc. One of the main grounds urged in the said supplemental counter affidavit is that the prayer to quash the impugned Ext.P-8 proceedings dated 10.5.1996 is barred by delay and laches. Another ground urged is that the petitioner has an alternative remedy under Sec.6 of the Kerala Government Land Assignment Act, 1960 and that the amended plea taken up by the petitioner to challenge Ext.P-8 is barred by limitation contemplated in the proviso to Sec.6 of the said Act, etc. Further it is also urged by the 1[st] respondent Panchayat that Ext.P-2 patta was granted to the petitioner for setting up of a house site and that he had never set up a residential facility in the said land within the period of one year as mandated in Rule 8(2) of the Kerala Land Assignment Rules, 1964 and therefore there is violation of the conditions of assignment of the patta and that therefore the assigning authority was well within its right to cancel Ext.P-2 patta as per Ext.P-8 in view of the said violation of the Rules, etc. The O.P.21189/2001 - : 20 :- petitioner has filed additional affidavit dated 4.3.2016 producing therein Ext.P-25, which is the discharge certificate dated March, 1994 issued to the petitioner by the Indian Air Force. The petitioner herein was mustered in the Indian Air Force in the trade of Meteorological Assistant on his completion of 52 weeks' Meteorological Assistant's Course and that he held various appointments during his career and was a Senior Noncommissioned Officer, who served in the supervisory capacity and that he had 16 years of service and was discharged on 7[th] of July, 1974 and that his character and general behaviour during service was very good, etc. Various meteorological duties, administrative duties, etc. performed by him in the the Air Force service have also been dealt with. It has also been certified therein that the petitioner has rendered war service in the 1962 war with China, 1965 war with Pakistan and the 1971 war with Pakistan. It has been averred by the petitioner that by virtue of his service in the Indian Air Force that he was considered as a preferential category for assignment of land by the State Government, which resulted in Ext.P-2 patta. 8. The 3[rd] respondent Tahsildar has filed a counter affidavit O.P.21189/2001 - : 21 :- dated 27.7.2012 in the matter. It is clearly admitted therein that the petitioner was the grantee of land assignment proceedings in L.A. 123/1967 in respect of 5.924 cents of land in the aforestated survey numbers, etc., which led to Ext.P-2 and that the same was subsequently cancelled as per Ext.P-8 order dated 10.12.1996 of the 3[rd] respondent. It is further stated in para 4 thereof that the about one acre of puramboke land was available in survey No.281/6, in which various kuthakappattam leases were granted to other parties in kuthakappattam proceedings in KP 1/85, 2/85, 3/85, 1/88, 72/88, 3/88 and 4/88 of Kozhencherry village, but that in 9.649 cents out of the said one acre, was the subject matter of land assignment made in land assignment proceedings in L.A.No.123/1967 (having an extent of 5.924 cents) and L.A.No. 3/1971 (having an extent of 3.725 cents). It is further averred therein that the 1[st] respondent Kozhencherry Grama Panchayat found that the above one acre of puramboke land is suitable for developmental activities in Panchayat for widening of the road and bus stand at Kozhencherry town and that on their request, the Government ordered to evict the occupants of the kuthakappattam land and the land under assignment and that in view of the urgent O.P.21189/2001 - : 22 :- necessity of utilizing puramboke land for improvement of the bus stand, the 3[rd] respondent had issued notices to the kuthakappattam holders and land assignees directing them to vacate the land, etc. it is accordingly, averred that this has led to the impugned Ext.P-8 cancellation of the land assignment and that earlier there was a direction of the 2[nd] respondent District Collector as per Ext.P-17 dated 24.5.1996 that the land already assigned, if required for the Panchayat, can be got back by issuing proceedings for cancellation of the assignment order, etc. It is also stated that pursuant to the Ext.P-8, the land was taken possession by the 1[st] respondent on 4.7.2001, etc. 9. Heard Sri.R.Reghunandana Menon, learned counsel appearing for the writ petitioner, Dr.K.P.Satheesan, learned Senior Counsel instructed by Sri.M.R.Jayaprasad, learned counsel appearing for the 1[st] respondent Kozhencherry Grama Panchayat and learned Government Pleader appearing for respondents 2 to 4. 10. At the outset it is to be noted that the locus of the 1[st] respondent Panchayat is confined only in the matter of defence against the prayer put up in the Writ Petition for mandamus to direct the 1[st] respondent Panchayat authorities to grant building permit to O.P.21189/2001 - : 23 :- construct a building in the land in question and that the locus in the matter of defence against the prayer for quashment of the impugned Ext.P-8 land assignment cancellation proceedings is only for respondents 2 to 4. This is because the assignment of land in favour of the petitioner was done only by the Governmental authorities concerned and not by the 1[st] respondent Panchayat. So also, the impugned Ext.P-8 cancellation proceedings has been issued by the Governmental authority concerned (R-3) and not by the Panchayat. Merely because, consequent on Ext.P-8 cancellation proceedings, the land in question has been given to the possession of the 1[st] respondent Panchayat, will not be a ground for the Panchayat to urge that they have a locus to defend the matter in relation to Ext.P-8. However, since the 1[st] respondent Panchayat has made elaborate contentions in their various pleadings to justify the issuance of Ext.P-8, this Court will initially deal with those contentions of the Panchayat first before dealing with the contentions urged by the 3[rd] respondent Tahsildar. 11. It has been clearly admitted by the Panchayat in the impugned Ext.P-5 proceedings dated 12.4.1999 as well as in their first counter affidavit dated 15.3.2004 that the land in question was O.P.21189/2001 - : 24 :- assigned in favour of the petitioner as per Ext.P-2 patta by the 3[rd] respondent Tahsildar as per the provisions contained in the Land Assignment Act and the Rules framed thereunder. It is only in their second counter affidavit that the Panchayat has made a volte-face in their stand by taking up the new contention that the petitioner was only the holder of a kuthakappattam lease and that he was never a holder of land assignment patta and that the termination of kuthakappattam lease has already been fully concluded by virtue of Ext.R-1(a) judgment of the Division Bench and Ext.R-1(b) SLP order of the Apex Court. From a perusal of the various pleadings and materials on record, it can be seen that the petitioner was never a party in any of the proceedings that involved the kuthakappattam lessees in the area in question. The petitioner was neither a petitioner nor a respondent in any of the Original Petitions, which led to Ext.R-1(a) Division Bench judgment. He was also not a party in any of the Writ Appeals covered by Ext.R-1(a) or Ext.P-23. Still further, the petitioner was also not a party to Ext.R-1(b) SLP proceedings. Exts.P-17 and P-18 proceedings would also clearly show that the petitioner was never a party in those proceedings before the 2[nd] respondent District Collector, which was confined O.P.21189/2001 - : 25 :- only in relation to various kuthakappattam lessees. Presumably, it is in view of this difficulty, the 1[st] respondent Panchayat has wriggled out of this new stand and has again come back to the original stand by filing a third counter affidavit by stating that the petitioner is indeed the grantee of a land assignment patta as per Ext.P-2. But that the same has already been cancelled by Ext.P-8 and that therefore nothing survives in the matter and that the same has been done validly by the Governmental authority. The issue as to whether Ext.P-8 has been validly and properly effected, will be considered later while taking up the contentions of respondents 2 to 4. During the course of the submissions, Dr.K.P.Satheesan, learned Senior Counsel appearing for the 1[st] respondent Panchayat fairly submitted that the 1[st] respondent Panchayat has only three grounds to urge before this Court. The first contention is that the petitioner has an alternative remedy by virtue of the provisions contained in Sec.6 of the Kerala Government Land Assignment Act, 1960. The second contention is that the amended plea of the petitioner to challenge Ext.P-8 cancellation proceedings is barred by long delay and laches and further that it is also specifically barred by the limitation contemplated in the proviso to Sec.6 of the Kerala O.P.21189/2001 - : 26 :- Government Land Assignment Act, 1960. The third and final contention urged by Dr.K.P.Satheesan, learned Senior Counsel appearing for the 1[st] respondent Panchayat is that the petitioner was granted Ext.P-2 patta only for setting up of a house site and that he had never set up a residential house in that land site within the period of one year from the date of issuance of the grant as mandated in Rule 8(2) of the Kerala Land Assignment Rules, 1964 and that therefore the 3[rd] respondent is fully justified to issue Ext.P-8 cancellation order as the petitioner has violated the aforestated mandatory condition of the grant. 12. As regards the first contention advanced by the 1[st] respondent Panchayat, it is to be noted that Sec.6 and its proviso of the Kerala Government Land Assignment Act, 1960 reads as follows: “Sec.6. Bar of suits.- No suit against the Government shall be entertained in any Civil Court in respect of any order passed under this Act except upon the ground that- - (a) the order is in breach of any completed agreement to assign, or - (b) the land in respect of which such order has been passed is not Government land: Provided that any such suit by a person who was a party or privy to and had due notice of the proceeding under this Act shall be instituted within two years from the date of service of the notice of such order.” The suit contemplated in Sec.6 of the Act is only in a case where (a) O.P.21189/2001 - : 27 :- the order that is sought to be impugned by the grantee is one which is alleged to be in breach of any completed agreement to assign or (b) that the land in respect of which such impugned order has been passed is not Government land. An elementary scrutiny of the basic facts and circumstances of this case would clearly reveal that the main ground urged by the petitioner herein to challenge Ext.P-8 cancellation proceedings is that the said cancellation proceedings is ultra vires and beyond the scope of the mandate of Rule 8(3) of the Kerala Land Assignment Rules, 1964, which exclusively deals with a situation of cancellation of grant of land assignment. According to the petitioner, the only ground cited in Ext.P-8 is that the land is required for a public purpose in the matter of widening of the road and the bus stand in the town and that therefore the land assigned as per Ext.P-2 stands cancelled, etc. Therefore, the order that is impugned by the petitioner herein is not one which is alleged to be in breach of any completed agreement to assign. The petitioner remotely does not even a case that the land in respect of which the impugned order has been passed is not Government land. Therefore the situation contemplated in Sec.6 of the Act does not even remotely arise in the facts and circumstances of this case. Hence it O.P.21189/2001 - : 28 :- cannot be said by any stretch of imagination that the petitioner has an alternative remedy by way of Sec.6 of the Act and that therefore he should necessarily relegated to that remedy. Even otherwise it is trite law that the Constitutionally guaranteed remedy of judicial remedy empowered under Art.226 of the Constitution of India cannot be abridged, taken away or excluded even by a Constitutional amendment as the power of judicial review is an elementary aspect of the concept of basic structure of the Constitution. Therefore, at best there can be a situation that where an effective remedy by way of suit or such other alternative remedy before a statutory functionary is provided or conceived of in an Act or in a Rule and if the court is satisfied that it is an efficacious alternative remedy, then this Court in its discretion may order that the aggrieved person may be relegated to seek such efficacious remedy provided in the Act or Rules. Such a situation does not arise in the facts and circumstances of this case. Therefore, the first contention of the Panchayat is only to be overruled and it is so accordingly ordered. 13. As regards the second plea of the Panchayat based on limitation as contemplated in the proviso to Sec.6, it is only to be O.P.21189/2001 - : 29 :- held that since the operative portion of Sec.6 of the Act does not even remotely arise in the facts and circumstances of this case, there is no question of invoking the proviso envisaged in Sec.6 of the Act. It is only in a case where the main operative portion of Sec.6 is attracted in the facts of a case, that the proviso will also be attracted therein. Therefore, the contention of the 1[st] respondent Panchayat that the amended plea of the petitioner to challenge Ext.P-8 is barred by the limitation envisaged in proviso to Sec.6 of the Act is also untenable and the same stands overruled. 14. The next issue as part of this contention is as to whether there is long and unexplained delay and laches on the part of the petitioner in challenging Ext.P-8. Going by the recitals in Ext.P-8 it is issued on 10.12.1996. It is the specific case of the petitioner that the petitioner was never given a reasonable opportunity of being heard or prior notice before the issuance of Ext.P-8 cancellation proceedings and that he came to know of Ext.P-8 only when the 1[st] respondent Panchayat had filed their first counter affidavit dated 15.3.2004, when they had produced the said order. Though there is a recital in Ext.P-8 that the parties have been given a reasonable opportunity of being heard, the specific O.P.21189/2001 - : 30 :- averment of the petitioner that he was not afforded any such reasonable opportunity, has not in any way been denied or rebutted in the counter affidavit filed by the 3[rd] respondent Tahsildar, who is the author of Ext.P-8. There is not even a remote averment in the said counter affidavit of the 3[rd] respondent that a copy of Ext.P-8 was served to the petitioner or to the other person concerned at any point of time before the filing of the counter affidavit in March, 2004. 15. When the matter had come up for consideration before this Court on 10.2.2014, this Court had passed the following order: “When the matter came up for hearing, the learned Government Pleader submitted that the file in O.P.No.21189/2001 relating to the cancellation of the assignment in the name of the petitioner was not available in the office. However, the Government Pleader sought time to ascertain the present stage of the appeal against Ext.P-9 judgment. The same shall be made available within a period of two weeks. ## 16. Again this Court on 19.11.2013 had passed the ## following order in this case: “Heard the petitioner and the learned Senior Counsel for the respondent Panchayat. The learned Senior Government Pleader seeks time to produce the files relating to the cancellation of assignment in the name of the petitioner. The respondent State shall produce the file relating to the cancellation of the assignment in the name of the petitioner and state the present stage of the appeal against Ext.P9 judgment within a period of three weeks from today. Post after three weeks in the disposal list as part heard.” O.P.21189/2001 - : 31 :- 17. In spite of such various orders passed by this Court, the 3[rd] respondent had not made available the files in relation to Ext.P8. Therefore, the learned Government Pleader was again requested by this Court to ensure that the entire files and records in relation to Ext.P-8 are made available for the perusal of the Court. The learned Government Pleader, on the specific instructions of the 3[rd] respondent, has submitted that despite the diligent and consistent efforts, the files in relation to Ext.P-8 are not traceable and that the same are not now available with the official respondents concerned. Incidentally, it may also be mentioned that the civil court has also found in Ext.P-9 judgment and decree in O.S.No.271/2001 filed by the successor in interest of the other assignee affected by the impugned Ext.P8, that principles of natural justice have been blatantly violated in the issuance of the impugned cancellation order (Ext.P-8 herein), in spite of specific statutory mandate as per the first proviso in Rule 8(3) of the Kerala Land Assignment Rules, 1964, that no registry of land shall be cancelled without giving the party or parties affected thereby, a reasonable opportunity of being heard, etc. In the light of all these aspects, it is only to be held that the petitioner was never given a reasonable opportunity of being heard O.P.21189/2001 - : 32 :- before the issuance of Ext.P-8 and that he was never served with a copy of Ext.P-8 order before March, 2014, when a copy of the said cancellation order dated 10.12.1996 was produced as Ext.R-1(a) in the counter affidavit dated 15.3.2004 filed by the Panchayat and the said counter affidavit was filed by the Panchayat on 17.3.2004. 18. In Ext.P-8 dated 10.12.1996, it is also shown that a copy thereof was marked to the President of the 1[st] respondent Kozhencherry Grama Panchayat. In the impugned Ext.P-5 dated 12.4.1999, the 1[st] respondent Grama Panchayat has no case that by then Ext.P-8 was issued cancelling Ext.P-2 and that the same has come to the knowledge of the Panchayat, etc. Even in Ext.P-6 appellate proceedings, the Panchayat has no case about the issuance or on the knowledge about Ext.P-8. On the other hand, in Exts.P-5 and P-6, the specific stand of the 1[st] respondent Panchayat is that the land in question in the survey numbers concerned was assigned to the petitioner and that as it is required for a public purpose, the Panchayat has decided to request the Governmental authorities for acquisition of that land. Therefore, it is crystal clear that even the 1[st] respondent was totally in the dark about the issuance of Ext.P-8 dated 10.12.1996 even at the time of issuance O.P.21189/2001 - : 33 :- of Ext.P-5 on 12.4.1999 and Ext.P-6 dated 23.2.2001. Moreover, it is also to be noted that the 3[rd] respondent Tahsildar himself had issued Ext.P-14 certificate dated 28.12.1998 certifying that the petitioner is having ownership and possession over the land covered by Ext.P-2 patta, etc. Ext.P-4 series would show that the Revenue authorities had voluntarily accepted land tax upto 2001-2002. If Ext.P-8 had in fact been served to all concerned, that certainly it would have been served to the 1[st] respondent Panchayat also, in which case, they would have pointedly urged about such aspect in Ext.P-5 dated 12.4.1999 and Ext.P-6 dated 23.2.2001. From all these aspects, the irresistible conclusion that can be reached by this Court is that Ext.P-8 was never served either to the petitioner or even to the 1[st] respondent Panchayat at any point of time before March, 2001. The petitioner's further version that he came to know about the issuance of Ext.P-8 for the first time only when the counter affidavit of the 1[st] respondent was filed on 17.3.2004, may be quite believable and credible. Moreover, it is also to be borne in mind that the petitioner was abroad at the relevant time. But there is another crucial aspect of the matter inasmuch as the successor in interest of the other assignee covered by Ext.P-8, had filed a Civil O.P.21189/2001 - : 34 :- Suit as O.S.No. 271/2001 before the Munsiff's Court, Pathanamthitta, in July 2001, challenging the aforesaid assignment cancellation order dated 10.12.1996 (Ext.P-8 herein/Ext.B-1 in the suit) and also alleging therein that he was unlawfully evicted from his land on 4.7.2001. Therefore, irrespective of the fact as to whether the petitioner was abroad or not, there are reasons for any prudent man to believe that the petitioner would have got some information about the eviction that took place on 4.7.2001 and about the issuance of the cancellation order dated 10.12.1996. Even if he had been abroad at that time, the petitioner should be legally imputed with the knowledge about the issuance of Ext.P-8 at least on 4.7.2001, when the petitioner and the other assignee were dispossessed from their assigned lands on account of the enforcement of Ext.P-8. Therefore, even if, as a matter of fact, the petitioner had actually received a copy of Ext.P-8 herein only when the counter affidavit of the 1[st] respondent was filed on 17.3.2004, this Court has no hesitation to hold that he should be imputed with the knowledge about the existence of that order at least on 4.7.2001 or immediately after the filing of O.S.No 271/2001 in July, 2001. O.P.21189/2001 - : 35 :- 19. Since that is the position, the matter to be now examined is as to whether, there has been long, unexplained and unreasonable delay on the part of the petitioner in challenging Ext.P-8 in these writ proceedings having regard to the aspect that he should be legally imputed with the knowledge about the existence of Ext.P-8 at least on 4.7.2001/July 2001. The instant Writ Petition was filed on 13.7.2001. If, as a matter of fact, the petitioner was actually served with a copy of Ext.P-8 at least in July, 2001, then certainly he would have incorporated a challenge against Ext.P-8 in the original memorandum of Writ Petition so filed on 13.7.2001. Therefore, taking into account the fact that the petitioner was abroad at that time and he had filed the Writ Petition through a power of attorney, it cannot be said to be unreasonable to infer that the petitioner would not have been served with a copy of Ext.P-8 at that time, as otherwise since he had already come forward to litigate the matter before this Court, then certainly he would have raised a challenge against that, if he had been served with a copy of those proceedings. It is later that the Writ Petition was dismissed by this Court as infructuous on 11.7.2006, which is evidently based on a factually wrong submission. When the O.P.21189/2001 - : 36 :- petitioner had come to know of the same, he had taken steps to institute a Review Petition as R.P.No.927/2009 before this Court and this Court in the judgment dated 30.11.2010 was fully convinced that the dismissal of the Writ Petition as being infructuous, was on the basis of a wrong submission and had thereupon immediately recalled the impugned judgment dated 11.7.2006, which led to the earlier dismissal of the Writ Petition. It is thereafter that the petitioner had filed the application for amendment (to incorporate the challenge against Ext.P-8 herein), which was allowed by this Court as per order dated 21.12.2010. It can be seen from a mere reading of the said order dated 21.12.2010 that none of the respondents including the 1[st] respondent Panchayat had raised any objections whatsoever before this Court in the amended pleas urged before against Ext.P-8 herein. Therefore, as noted hereinabove, the said amendment will necessarily relate back to the date of the institution of this Writ Petition, viz., 13.7.2001. Moreover, the said order dated 21.12.2010 passed by this Court allowing the amendment of the pleadings, has not been challenged by anyone in the manner known to law. In these circumstances, it is only to be held that, in view of the said order dated 21.12.2010 of this Court, O.P.21189/2001 - : 37 :- the said amendment will relate back to the date of institution of the Writ Petition, viz., 13.7.2001. Therefore, it cannot be said that there has been any undue delay or laches on the part of the petitioner in raising the challenge against Ext.P-8 in the present writ proceedings. There is yet another aspect of the matter. The petitioner was abroad and he came to know about the dismissal of the O.P. as per the earlier judgment dated 11.7.2006 only later and thereupon, he had filed Review Petition on 7.7.2007, which was later allowed as stated above, etc. The petitioner is also an exserviceman, who had served the Indian Air Force for more than 16 years and had rendered war service in three wars and Ext.P-2 assignment of patta was on account of his preferential entitlement as a personnel, who had served the Indian Air Force. His specific case is that he has been illegally and unlawfully evicted and dispossessed from the assigned land and that Ext.P-8 cancellation order is per se illegal and ultra vires the provisions contained in the Kerala Land Assignment Rules, 1964, more particularly, Rule 8(3) thereof, etc. Keeping in view these aspects, this Court has no hesitation to hold that as a Constitutional court, which is reposed with the judicial duty to safeguard the Constitutionally guaranteed O.P.21189/2001 - : 38 :- rights and other legal rights of citizens, this Court is obliged to exercise its discretion in such a manner so that the grievances of the present nature are duly considered and adjudicated in the public law remedy of judicial review proceedings. Therefore, this Court will be fully justified to take the view that the doors of this temple of justice should not be shut to a litigant like the petitioner, who had served as a Senior Non-Commissioned Officer of the Indian Air Force. In the light of these aspects, this Court is constrained to overrule the objections of the respondents, more particularly that of the 1[st] respondent, that there has been long and unexplained delay on the part of the petitioner in raising the present challenge. 20. The third and the last contention raised by Dr.K.P.Satheesan, learned Senior Counsel appearing for the 1[st] respondent Panchayat is that there has been violation of the mandatory condition stipulated in Rule 8(2) inasmuch as the petitioner had not set up a house site in the property in question within the period of one year from the issuance of Ext.P-2 dated 9.5.1967 and that therefore the assignment is liable to be cancelled for violation of that condition, etc. 21. This contention is sought to be raised by the 1[st] O.P.21189/2001 - : 39 :- respondent Panchayat for the first time in its third counter affidavit filed as late as on 26.2.2016. Even if it is assumed that the 1[st] respondent has locus to raise such contention, it is to be held that the following aspects are noteworthy. 22. As can be seen from Ext.P-19, earlier when the petitioner had an apprehension that steps will be unlawfully taken by the Governmental authorities to evict him from the above land, he had filed a civil suit as O.S.No.104/1992 before the Munsiff's Court, Pathanamthitta, seeking the prayer of injunction to restrain the defendants (State of Kerala & others) from trespassing into the said plaint schedule property and committing waste therein. Therein a written statement was filed by the State of Kerala, wherein it is admitted that the said plaint schedule property was assigned to the petitioner as per LA 123/1967 and thandapper account No.3372 was allotted to him and further that no steps whatsoever have been contemplated by the Governmental authorities to evict the petitioner from the said land and that the plaintiff lacks cause of action. The said suit was dismissed on 24.6.1994. In the said suit, the civil court had appointed an Advocate Commissioner to make an inspection of the property in question and the Advocate O.P.21189/2001 - : 40 :- Commissioner submitted Ext.P-22 report dated 19.2.1992, wherein it is clearly stated that the building of the age of at least 25 years is situated in the said land. Therefore, there is ample material on record to show that a building was in existence in the petitioner's land at least in 1967 at the time of issuance of Ext.P-2 patta dated 9.5.1967. It is not known as to how the 1[st] respondent Panchayat could allege that there was no house site in the land assigned to the petitioner. Without credible and objective materials, a local self Governmental body like the 1[st] respondent, cannot be permitted to make such an allegation in the first place. Having regard to the cogent materials placed on record as per Ext.P-22, this Court has no hesitation to hold that aforesaid allegation raised by the Panchayat that there was no building/house in the said land, is absolutely without any factual foundation and the same also stand overruled. Moreover, the petitioner has clearly averred in his Writ Petition that at the time of issuance of Ext.P-2 patta , he has been in possession of the said property. It is to be noted that Ext.P-2 was issued on 9.5.1967 and that he had constructed a small building in the said property, etc. This averment of the petitioner has not been denied in the earlier two counter affidavits filed by the O.P.21189/2001 - : 41 :- Panchayat. There is yet another crucial aspect of the matter. Moreover, any contention regarding alleged violation of Rule 8(2) can be validly urged and established only by the assigning authority (third respondent) and not by a third party like the 1[st] respondent Panchayat. If at all, the assigning authority had such a case about the alleged violation of Rule 8(2), then it was for the assigning authority to issue a show cause notice to the petitioner raising such allegation and granting him reasonable opportunity to rebut such allegation and then take a considered decision in accordance with Rule 8(3). A reading of Ext.P-8 would show not even a whisper anywhere therein has been raised about the alleged violation of Rule 8(2) or that the petitioner has not constructed any residential house in the said property within one year, etc. The only ground urged by Ext.P-8 is that the land in question is required for the public purpose of widening of the road and development of the bus stand. In the absence of even an allegation to that effect in Ext.P-8, none of the respondents can urge any contentions based on such an allegation. Accordingly, the above said contention raised by the 1[st] respondent also stands overruled. 23. Now, the crucial issue to be considered is as to the O.P.21189/2001 - : 42 :- legality, propriety and reasonableness in the issuance of the impugned Ext.P-8 cancellation order. All the respondents have not clearly and categorically admitted the fact that Ext.P-2 is assigned patta granted to the petitioner in accordance with the provisions contained in the Kerala Government Land Assignment Act, 1960 and the Kerala Land Assignment Rules, 1964 framed thereunder. The only ground urged in Ext.P-8 is that the land in question is required for public purpose in the development of bus stand, widening of road, etc., and therefore the patta is cancelled, etc. The cancellation of patta granted in accordance with the provisions contained in the Act and the Rules is dealt with in Rule 8(3). For the sake of completeness and clarity, it will be profitable to refer to the entire provisions in Rule 8 which reads as follows: “Rule 8:Conditions of assignment on registry.- (1) Lands, granted on registry shall be heritable and alienable. Provided that the assignee may mortgage such lands(a) to the Government or Co-operative Institutions or Tea Board or the Rubber Board or any other financial institutions recognised by the Government in this behalf, as security for obtaining loan for agricultural or land improvement purposes or for growing tea or rubber; and (b) to the Government or Co-operative Institutions as security for obtaining loans for house construction under the Village Housing Project Scheme or any other housing schemes sponsored by the Government, if such house is required for the occupation of the assignee or his family. (1A) Notwithstanding anything contained in sub-rule (1) in the land O.P.21189/2001 - : 43 :- assigned on registry as per sub-rule (1) of Rule 7 shall be heritable and alienable. (2) 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; and such resides or cultivation, as the case may be, shall commence effectively within a period of one year, from the date of receipt of the patta or of the provisionals patta in cases where a provisional patta is issued in the first instance: Provided that- (i) in the case of assignment to military personnel or their dependents as the case may be, the assignee may cultivate the land by his own labourer by the labour of any member of his family and with the occasional assistants, if any of hired labour or servants on wages payable in cash or in kind but not in crop share; (ii) the military personnel may apply for land anywhere in the State irrespective of the State to which they belong; and in the matter of assignment preference shall be given to persons belong to Kerala; (iii) the military personal may lease for cultivation purposes the lands assigned to them whilst they are away on active services. (3) The registry shall be liable to be cancelled for contravention of the provisions in sub-rule (1A) or sub-rule (2). The registry may be cancelled also, if it found that it was grossly inequitable or was made under a mistake of facts or owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure. In the event of cancellation of the registry, the assignee shall not be entitled to compensation for any improvements he may have made on the land. The authority competent to order such cancellation shall be the authority which granted the registry, or one superior to it; Provided that no registry of land shall be cancelled without giving the party or parties affected thereby, a reasonable opportunity of being heard: Provided further that no assignment of Land shall be cancelled if the annual family income of the transferee occupant does not exceed Rs. 10,000 (Rupees Ten thousand only) and who does not own or possess any landed property, anywhere in the State: Provided also that in the case of a transfer of Land covered by the above Proviso the assignee shall not be eligible for further assignment of Land anywhere in the State.” Sub-rule (3) of Rule 8 states that the Registry shall be liable to any sub-rule (1) or sub-rule (2). Further it is stipulated therein that the O.P.21189/2001 - : 44 :- registry may be cancelled also, if it found that it was grossly inequitable or was made under a mistake of facts or owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure, etc. The competent authority to order such cancellation shall be the authority which granted registry or one superior to it. The impugned Ext.P-8 proceedings reads as follows: ## “PROCEEDINGS OF TAHSILDAR KOZHENCHERRY, (Present Sri A.M.Philip) A10-14072/96 Dtd. 10.12.96 Sub: KLC rules - Eviction - Kozhencherry Village Sy.No.281/6 - cancellation of Patta No.LA3/71 & 126/67 orders issued. Ref: R8 48502/92 dt. 24.5.96 of District Collector, Pathanamthitta. Orders were issued as per reference cited to evict encroachment in Sy.no.281/6 of Kozhencherry Village and to cancel the assignment order no.LA 3/71, 126/67 of Kozhencherry Village. It was also ordered that the land already assigned if required for Panchayat can be got back by issuing proceedings for the cancellation of assignment order as per rules. The parties have been given opportunity for being heard. The matter has been examined in detail and it is satisfied that the land in Sy.No.281/6 of Kozhencherry Village is required for public purpose and for widening the road in the heart of Kozhencherry Town. In this circumstances sanction is hereby accorded to cancel two (2) Pattas as detailed below:- |1.<br>2.|Name<br>K.J.Alexander<br>Mathai Thomas|L.A.No.<br>LA 123/67<br>LA 3/71|Sy.No.<br>Ext.<br>281/6-1<br>05.924<br>6-2, 6-3<br>cents<br>281/6<br>03.725<br>cents| |---|---|---|---| Necessary alternation will be made in Village records and Taluk records. O.P.21189/2001 - : 45 :- Sd/Tahsildar Kozhencherry” A mere perusal of Ext.P-8 would make it clear like the day light that there is not even a remote whisper anywhere therein that the petitioner has contravened any of the provisions in sub-rule (1) or sub-rule (2) of Rule 8. Equally, there are no averments therein that the original grant of assignment to the petitioner was grossly inequitable or was made under a mistake of facts or owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure, etc. The factual foundation of any of these aspects covered in sub-rule (3) are not even remotely or indirectly disclosed in Ext.P-8. There is no averments therein that any prior show cause notice was issued to the petitioner. In view of the aspects dealt with hereinabove, there has been gross patent violation of the principles of natural justice in as much as no reasonable opportunity of being heard was granted to the petitioner, it is in flagrant violation of not only the principles of natural justice but also the mandate of first proviso to sub-rule (3) of Rule 8. O.P.21189/2001 - : 46 :- 24. It is also be to be noted that Ext.P-4 would show that the land tax was accepted by the Revenue authority upto 2001-02 and Exts.P-10 to P-13 would show that land tax have been received by the Revenue authorities even for the subsequent period from 200203 to 2010-11. Ext.P-21 is issued on 13.7.2015 regarding the Thandaper account allotted to the petitioner in respect of Ext.P-2 land. 25. The matter in issue in this regard is no longer res integra and directly covered against the respondent by a ruling of this Court in the case Latheef v. State of Kerala reported in 1992 (2) KLT 285, para 5. Moreover, inspite of specific direction issued by this Court repeatedly, now it is stated on behalf of respondents 2 to 4 that the entire files on record in relation to Ext.P-8 are no longer available or traceable. Therefore, this Court has no hesitation to hold that the impugned Ext.P-8 cancellation order is plainly illegal and ultravires the provisions contained in the Act and the Rules framed thereunder and that it is highly arbitrary, unreasonable, perverse and improper. 26. Having regard to the submission made by the respondents that Ext.P-2 land is situated in the heart of the Town Ship and very near to the bus stand facility and as the other O.P.21189/2001 - : 47 :- kuthakappattam lessees have already been evicted from that area, this Court is not inclined to straight away order the quashment of Ext.P-8 or to order the forthwith restoration of the possession of land to the petitioner. Respondents 2 to 4 should make a serious endeavour to find out whether alternate land coming to 6-8 cents situated atleast within 5-8 kms. from the Kozhenchery Bus Stand could be allotted to the petitioner in lieu of Ext.P-2 land. Such alternate land should necessarily have road access and smooth vehicular access as the petitioner intends to construct a building therein. During the pendency of this Writ Petition, certain interim orders were issued directing respondents 2 & 3 to make enquiry in this regard and report to this Court on the feasibility of such allotment of alternate land. The said respondents have reported that the only alternate land that they could immediately locate is one which is more than 14 kms. away and that too in a different Panchayath wherein an encroacher is occupying in the said land even though steps are being taken to evict him, etc. Petitioner's counsel made a suggestion that an alternate land is available very close to the present land in question as can be seen from Ext.P-26. Respondents 2 & 3 will consider whether it is feasible to allot any O.P.21189/2001 - : 48 :- such alternate land as pointed out in Ext.P-26 and such assignment of land should be to the reasonable satisfaction of a prudent person. Accordingly, the following directions are issued:- - (i) It is declared that the impugned Ext.P-8 cancellation order is plainly illegal and ultravires the provisions contained in the Kerala Government Land Assignment Act, 1960 and Kerala Land Assignment Rules, 1964 and that it is highly arbitrary, unreasonable, perverse and improper. - (ii) Respondents 2 to 4 will take serious endeavours and consider whether alternate land as suggested above could be assigned to the petitioner in lieu of Ext.P-2 land. It should also be specifically considered whether it is feasible to assign alternate land as pointed out in Ext.P-26. The entire steps in the matter of consideration and finalisation of assignment of alternate land to the petitioner in lieu of Ext.P-2 should be completed by respondents 2 to 4 within a period of 6 months from the date of production of a certified copy of this judgment. In the eventuality of assignment of such alternate land to the petitioner within the above time limit, then the petitioner need not be given restoration of possession of Ext.P-2 land and then that land could be given to the 1[st] respondent Panchayat for its developmental activities. - (iii)(a) In case alternate land in lieu of Ext.P-2 is not assigned and granted to the petitioner within the aforestated period of 6 months, then Ext.P-8 and all consequential proceedings arising therefrom will stand automatically rescinded and set aside. In such eventuality, respondents 2 to 4 shall then forthwith restore possession of Ext.P-2 land to the petitioner and respondents 2 & 3 will take the assistance of the Taluk Surveyor concerned to demarcate and fix the boundary of the land covered by Ext.P-2 so that there is no dispute regarding the identity and boundaries of the said property. In such eventuality the process in this regard shall be completed within a period of one month from the date of expiry of earlier stipulated period of 6 months. - (iii)(b) In the eventuality covered by direction (iii)(a) (supra), the petitioner will be at liberty to then submit an application for grant of building permit in accordance with the provisions contained in the applicable Rules before the 1[st] respondent-Grama Panchayath and O.P.21189/2001 - : 49 :- the same shall be considered and decision taken thereon in accordance with law within a period of 6 weeks from the date of receipt of such application. It is made clear that in such eventuality, the 1[st] respondent shall not unnecessarily harass or victimise the petitioner and shall take a decision on the request for building permit of the petitioner in accordance with law. If the officials of the 1[st] respondent-Panchayath unnecessarily harasses the petitioner in that regard, this Court will be constrained to take a very serious view in the matter. It is also made clear that none of the observations, findings or directions in this judgment will any way preclude the respondents from taking lawful steps for acquisition of petitioner's land covered by Ext.P-2, in accordance with law. With these observations and directions, this Writ Petition (Civil) stands finally disposed of. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True copy/// P.S. To Judge.