M.K. Paulose v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **TUESDAY, THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940** ## **WP(C).No. 4222 of 2019** ## **PETITIONER:** **M.K.PAULOSE, S/O.KURIAKOSE,AGED 61 YEARS, MUNDAKAL HOUSE, PUTHENCRUZ P.O., ERNAKULAM DISTRICT-682308, REP. BY HIS POWER OF ATTORNEY HOLDER GEORGE MUNDAKAL,S/O.KURIAKOSE, MUNDAKAL HOUSE, PUTHENCRUZ P.O., ERNAKULAM-682308.** **BY ADVS.** **SRI.K.S.HARIHARAPUTHRAN, SRI.JOJI GEORGE JACOB SRI.RAAJESH S.SUBRAHMANIAN** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**DEPARTMENT OF REVENUE, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**DISTRICT COLLECTOR,**| ||**COLLECTORATE, ERNAKULAM-682030.**| |**3**|**REVENUE DIVISIONAL OFFICER,**| ||**MUVATTUPUZHA, ERNAKULAM DISTRICT-686 661.**| |**4**|**TAHSILDAR, KUNNATHUNADU,**| ||**ERNAKULAM DISTRICT-683 542.**| |**5**|**VILLAGE OFFICER,PUTHENCRUZ VILLAGE,**| ||**PUTHENCRUZ, ERNAKULAM-682308.**| |**6**|**VILLAGE OFFICER, THIRUVANIYOOR VILLAGE,**| ||**THIRUVANIYOOR, ERNAKULAM-682308.**| |**7**|**SPECIAL TAHSILDAR (LA), KOCHI REFINERIES LTD.,**| ||**NORTH FORT GATE, THRIPUNITHURA,**| ||**ERNAKULAM DISTRICT-682301.**| ||**SRI.K.J.MOHAMMED ANZAR, SPL.GOVT.PLEADER(REVENUE)**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ---------------------------------- ## W.P.(C) No.4222 of 2019 ---------------------------------Dated this the 12[th] day of February, 2019 ## J U D G M E N T The prayers in the above Writ Petition (Civil) are as follows:" - _i. To set aside Exhibit P15 proceedings of 3[rd] respondent and to issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2[nd] , 3[rd] and 4[th] respondents that the land sought for assignment in LA 32/91 on the files of 4[th] respondent, i.e., land comprised of one acre and eighty cents in survey number 948/2 (Block 39 Sy.No.315/1) in Puthencruz Village, Ernakulam District, which is subject matter of Ext.P1, shall be assigned to the petitioner on registry and issue patta without any further delay._ - _ii. To grant other such reliefs as sought from time to time including the cost. "_ 2. Heard Sri.K.S.Hariharaputhran, learned counsel appearing for the petitioner and Sri.K.J.Mohammed Anzar, learned Special Government Pleader for Revenue, appearing for the respondents. 3. According to the petitioner his father was in enjoyment, possession and occupation of an extent of land comprising 1 Acres and 18 cents since the year 1968, where he had undertaken various cultivation, agricultural operations including planting and growing of rubber trees. Later, the petitioner's father had transferred the possessory rights in respect of the said W.P.(C).No.4222/2019 **==> picture [19 x 9] intentionally omitted <==** property in favour of the petitioner, who in turn had submitted Ext.P-1 application dated 20.12.1985 before the 4[th] respondentTahasildar for granting assignment of land in respect of the subject property in terms of the provisions contained in the Kerala Land Assignment Rules, 1964. Ext.P-2 Mahazar report dated 16.10.1991 was submitted by the revenue officials concerned and Ext.P-2A land assignment proforma report was also submitted in respect of the said application in the year 1991. After stating about the tenure of the possession, the agricultural activities undertaken in the land and the financial status and details of the other land owned by the petitioner, 4[th] respondent had recommended that the land should be assigned to the petitioner. But inspite of the lapse of long time nothing substantial has transpired due to the inaction on the part of the respondent authorities concerned. Later in the year 2018, the 4[th] respondent- Tahasildar had closed the 33 year old file in respect of the said proceedings under Ext.P-1 application without hearing the petitioner, inspite of the directions issued by this Court in Ext.P-9 judgment dated 11.03.2016 in W.P.(C).No. 9395/2016 filed by the W.P.(C).No.4222/2019 **==> picture [19 x 9] intentionally omitted <==** petitioner. Since the proceedings were closed without hearing the petitioner, he had approached this Court by filing W.P.(C) No. 5524/2018 in which this Court have rendered Ext.P-10 judgment on 20.06.2018 by holding the said rejection order is illegal and directed the 4[th] respondent- Tahasildar to re-open the proceedings and then consider the request of the petitioner and after affording a reasonable opportunity of being heard to the petitioner should pass orders on Ext.P-1 application in accordance with law. The grounds sought to justify the rejection order has also been dealt with in para 3 of Ext.P-10 judgment. 4. Thereafter, petitioner had submitted Ext.P-11 written submissions before the 4[th] respondent- Tahasildar and now the 4[th] respondent has issued the impugned Ext.P-12 proceedings dated 27.7.2018 rejecting the claim of the petitioner for assignment of the land as mentioned in Ext.P-1 application. Being aggrieved thereby, the petitioner had preferred Ext.P-13 appeal before the 3[rd] respondent RDO, who in turn has also now rejected the said appeal as per the impugned Ext.P-15 order dated 19.12.2018. It is these W.P.(C).No.4222/2019 **==> picture [18 x 9] intentionally omitted <==** proceedings at Exts.P-12 and P-15 are under challenge in this writ petition. 5. One of the prime contentions urged by the petitioner is that, the respondents have not even remotely considered his contention that he is fully entitled for assignment of the subject property on the basis of the provisions contained in the Rule 7(1) of the Kerala Land Assignment Rules 1964, inasmuch as the land was under his unopposed possession and occupation since 01.08.1971 as stipulated in the said Rule. Therefore the said statutory right conferred on account of the possession of the petitioner cannot be divested in the manner, as has been ordered by the impugned Exts.P-12 and P-15 orders by citing subsequent and supervening events. It is pointed out that the main ground of rejection in Exts.P-12 and P-15 is that subsequently the land area is sought to be set apart for development of a project of BPCL and the said decision was taken only on 2017 which is more than 33 years after the submission of Ext.P-1 application dated 20.12.1985, and that all the reports submitted by the subordinate officials have W.P.(C).No.4222/2019 ..6.. unequivocally pointed out to the indisputable facts that the petitioner was in unobstructed possession and occupation of the subject property as on the cut off date on 01.08.1971 as mentioned in the Rule 7(1). Therefore such statutory rights conferred on him as per Rule 7(1) may not be divested by subsequent and supervening events which has taken place in 2017 and also when the application submitted as per Ext.P-1 as early as on 20.12.1985 was not finalized by the respondents only because of their unreasonable delay and the laches on their part. So it is pointed out that the subsequent and supervening events of the year 2017 cannot be the basis for rejecting the petitioner's application so as to defeat the statutory right as per Rule 7(1). As otherwise, it would amount to permitting the respondents to defeat the said right on the basis of the wrong committed by the respondents in the long delay on their part in finalizing the application and that no authority can be permitted to take advantage of their own wrong in denying the statutory right of the petitioner. 6. The petitioner has also urged grounds as in grounds 'B' and 'C' of the writ petition, which reads as follows:- W.P.(C).No.4222/2019 ..7.. _“B. As evident from exhibit P15 order, the reasons for the 3[rd] respondent to dismiss exhibit P13 appeal are as follows:_ - _i. Rule 7(1) of the Kerala Land Assignment Rules 1964 deals with 'occupation of government land by way of encroachment not considered objectionable'. Rule 2(cc) defines 'encroachment not considered objectionable'. The applicant's case will not fall under this definition. So as to invoke Rule 5(1)(b)(ii), there should be land available for assignment and the applicant should be eligible for assignment too. As the land sought for assignment by the applicant lies in the area where developmental activities of the Kochi refineries is carried out, it is not preferable to assign the said land. Apart from this, the applicant along with his wife owns 17.83 and 6.62 ares of land in Thiruvaniyoor Village._ - _ii. As per G.O.(MS) No.280/11/RD, dated 27.7.2011, land shall be assigned only to the landless for constructing house. Eligibility for assignment is fixed according to the prevailing rules._ - _iii. Large number of application could not be considered because of non availability of land. Government is in the earnest effort of finding land to re-settle those who have lost their house and land during the flood of 2018._ - _iv. As per report of the Tahsildar the applicant is financially well off and also, there is no land left for assignment. The findings of the Tahsildar that the applicant is not eligible for assignment seems to be acceptable._ - _v. Even if the claim of the applicant that he has occupied the land since long back and is still in possession of the land is accepted, as per rules it is not mandatory that the said land shall be assigned to the occupant._ _None among the above five grounds raised by the 3[rd] respondent in denying appeal are on appreciation of facts or proper interpretation and application of law, hence has no legal legs to stand._ _C. Findings of the 3[rd] respondent in exhibit P15 as shown in Ground B(i) above that_ _The applicant is not eligible under Rule 7(1) of the Kerala Land Assignment Rules 1964 as the land sought for assignment will not fall within the definition of Rule 2(cc) as it lie in the area where developmental activities of the Kochi refineries is carried out; and as the applicant owns other lands, he is not eligible under rule 5(1)(b)(ii) is wrong interpretation and non application of proper law._ _Rule 7 deals with the priority to be observed in assignment. The Exhibit P15 proceedings has no findings against the eligibility of this petitioner under Rule 7(1) other than the reason that the land sought for assignment will not_ W.P.(C).No.4222/2019 ..8.. _fall within the definition of Rule 2(cc) so as to attract the benefit of Rule 7(1)._ _Rule 2(cc) defines 'encroachment not considered objectionable'. Definition in Rule 2(cc) has got two parts. First being, Land should be 'available for assignment' and second, 'person or family should have eligibility'. The 3[rd] respondent's finding against this petitioner as to nonapplicability of Rule 2(cc) is regarding 'land available for assignment'. As per Exhibit P15 the 3[rd] respondent has relied on the report of 4[th] respondent Tahsildar in arriving at a decision that the land sought for assignment cannot be treated as 'land available for assignment' for the purpose of rule 2(cc) , reasoning, that the said land lies in the area where developmental activities of the Kochi refineries is carried out._ _It is humbly submitted that when OP No.33331/2001 was in consideration by this Honourable Court the 4[th] respondent raised the same objection regarding 'developmental activities of the Kochi refineries' in the said land. A letter from the Kochi Refineries Ltd, stating that the land in survey number 315 in block number 39 of Puthencruz Village is not being considered for acquisition, was submitted before this Honourable Court. The same letter is produced herewith and marked as Exhibit P4. It was after considering Exhibit P4 letter, this Honourable Court in OP.No.33331/2001 ordered the respondents to consider the Exhibit P1 application expeditiously. Once the argument of 4[th] respondent is overlooked by this Honourable Court relying on Exhibit P4 letter of the Kochi refineries Ltd, the 4[th] respondent ought to have issued the patta then only._ _It is humbly submitted that the petitioner herein has preferred the Exhibit P1 patta application in 1985. The Exhibit P2 mahazar report and Exhibit P2A land assignment proforma report prepared in accordance with law in the year 1991 by the competent authority has no mention in it about the proposed development activities to be carried out by the Kochi refineries in the said land. The Exhibit P4 letter of the Kochi refineries Ltd makes it clear that even in 2001, i.e., after 10 years of mahazar report, the land sought for assignment was not included in the development activities area. It was only in 2017 the said land was included in the developmental activities of the Kochi refineries Ltd by virtue of G.O.(Rt) No.1595/17/RD dated 3.4.2017. Moreover, in the provision reserved for the report of the village officer in the Exhibit P2A land assignment report proforma, it is very clearly stated that the land can be included in the assignment list and may be assigned in on registry in favour of the_ W.P.(C).No.4222/2019 ..9.. _applicant. Based on the recommendation and findings in the statutory reports. Viz, Exhibit P2 mahazar and Exhibit P2A assignment proforma reports, that the land sought for assignment was occupied before 1[st] day of August 1971, the 4[th] respondent ought have assigned the land on registry without delay as per Rule7(1) of the Kerala Land Assignment Rules 1964. The inaction and willful laches of the 3[rd] and 4[th] respondents amounts to deprival of statutory rights of this petitioner._ _Despite the contention by 4[th] respondent since 2001, that the land sought for assignment lies in the area where developmental activities of Kochi refineries is carried out, the 4[th] respondent himself has issued pattas in favour of survey numbers 312/3 (40.90 ares), 316/16 (21.45 ares), 315/3(23.20 ares), 316/16 (25.55 ares) and 311/9 (29.82 ares) in block number 39 of the Puthencruz village after 2002. Many applicants were given patta even before 2002 also. The land so assigned is lying adjacent to the land sought for assignment by this petitioner. Exhibit P5 and P5A are pattas issued in 2003 and 2004 to the co-applicants of this petitioner who were also co-petitioners in an earlier writ petition. The 4[th] respondent, being a public servant ought to have considered the applications before him in a fare and square manner based on merits and would have treated equals alike. The act of 4[th] respondent in not doing so is violative of Article 14 of the Constitution of India. The 3[rd] respondent ought to have appreciated this aspect and allowed the Exhibit P13 appeal in the interest of justice. He went wrong in rejecting the appeal hence prejudicially affecting the right of this petitioner under Art 14 of the Constitution of India._ _Another ground relied by the 3[rd] respondent in rejecting appeal is that this petitioner is not eligible under Rule 5(1)(b)(ii)._ _Rule 5 is about the maximum limit of land to be assigned for cultivation. This petitioner's claim under Rule 5(1)(b)(ii) was denied on the reason that this petitioner and wife together own 1.83 and 6.62 ares of land._ _It is evident from Exhibit P2 prepared in 1991 that the land sought for assignment has 350 rubber trees of five-year old along with other trees. Rubber trees are covered under explanation (ii) of Rule 5 for the purpose of 'vaulable improvements' under Rule 5(1)(b)(ii). If 3[rd] respondent would have applied his mind and verify the facts in Exhibit P2, there is nothing to stop him from a invoking Rule 5(1)(b)(ii) assigning the balance extent of land necessary to make up the_ W.P.(C).No.4222/2019 ..10.. _extent admissible under sub rule (1). The 3[rd] respondent failed both to verify facts and apply proper law.”_ 7. On a reading of the impugned orders at Exts.P-12 & P-15, this Court is of the considered view that none of the abovesaid crucial and relevant aspects urged by the petitioner has been properly appreciated and considered by the respondents while arriving at the impugned decision to reject the claim of the applicant for land assignment. The specific contention of the petitioner that he was in possession as on the cut off date of 1.8.1971 as per Rule 7(1) and therefore he has the statutory right as per Rule 7(1) for securing the assignment of land and that the supervening event which has happened in the year 2017 cannot be the basis for rejecting his statutory right and that too on the basis of delay of the respondents, etc. has not been properly considered by the respondents. 8. A reading of the impugned orders would also disclose that the very same grounds which are urged before this Court in Ext.P-10 writ proceedings have been more or less reiterated in those proceedings. Hence the matter requires serious W.P.(C).No.4222/2019 ..11.. reconsideration at the hands of the competent respondent authorities concerned and the matter requires a remit. For effectuating such a remit the impugned Exts.P-12 and P-15 proceedings will stand set aside and the application of the petitioner as per Ext.P-1 will stand remitted to the 4[th] respondent Tahsildar for consideration afresh. The petitioner may submit his written submissions in the matter before the 4[th] respondent along with a certified copy of this judgment and thereafter the 4[th] respondent may ascertain the considered views of the Land Assignment Committee, if their views have not so far been obtained and a copy of the proceedings of the Land Assignment Committee should also be made available to the petitioner and thereafter the petitioner should be given a reasonable opportunity of being heard and then the 4[th] respondent will render a considered decision after adverting to the various contentions of the petitioner without much delay preferably within a period of 3 months from the date of production of a certified copy of this judgment. 9. It is seen that though consultation with the local W.P.(C).No.4222/2019 **==> picture [24 x 7] intentionally omitted <==** Panchayath is mandatory as per Sec.3 of the Kerala Government Land Assignment Act, 1960, the local Panchayath has already conveyed its views in favour of the petitioner as per Ext.P-3 issued by Vadavucode – Puthencruz Grama Panchayath and therefore consultation with the said Panchayath may not be necessary. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C).No.4222/2019 ..13.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**||**TRUE COPY OF THE PATTA APPLICATION**| |---|---|---| |||**DATED 20.12.1985 MADE BY THE**| |||**PETITIONER.**| |**EXHIBIT P2**||**TRUE COPY OF THE MAHAZAR REPORT**| |||**PREPARED BY THE CONCERNED REVENUE**| |||**OFFICIALS DATED 16/10/1991 WHICH IS ON**| |||**THE FILES LA 32/91 OF THE 4TH**| |||**RESPONDENT.**| |**EXHIBIT P2**|**A**|**TRUE COPY OF THE LAND ASSIGNMENT**| |||**PROFORMA REPORT PREPARE BY REVENUE**| |||**OFFICIALS IN 1991 WHICH IS ON THE**| |||**FILES LA 32/91 OF 4TH RESPONDENT.**| |**EXHIBIT P3**||**A TRUE COPY OF THE COMMUNICATION TO**| |||**4TH RESPONDENT BY SECRETARY OF**| |||**VADAVUKIDE**<br>**PUTHENCRUZ**<br>**PANCHAYATH**| |||**REGARDING NOC, DATED 06.11.1996.**| |**EXHIBIT P4**||**TRUE COPY OF THE LETTER ISSUED BY**| |||**KOCHI REFINERIES LIMITED, VIDE NO. 10/**| |||**KMB/LA/CRCEP-01,**<br>**DATED**<br>**11.10.2001**| |||**STATING THAT THEY HAVE NO PROPOSAL OF**| |||**ACQUIRING THE LAND SOUGHT FOR**| |||**ASSIGNMENT.**| |**EXHIBIT P5**||**TRUE COPY OF THE PATTAS ISSUED IN**| |||**FAVOUR OF THE CO-APPLICANTS OF**| |||**PETITIONER IN 2003.**| |**EXHIBIT P5**|**A**|**TRUE COPY OF THE PATTAS ISSUED IN**| |||**FAVOUR OF THE CO-APPLICANTS OF**| |||**PETITIONER IN 2004.**| W.P.(C).No.4222/2019 ..14.. **EXHIBIT P6** - **TRUE COPY OF LETTER DATED 16.9.2003 OF 4TH RESPONDENT TAHSILDAR ENTRUSTING 5TH RESPONDENT VILLAGE OFFICER TO DETERMINE VALUE OF LAND.** - **EXHIBIT P6 A TRUE COPY OF RTI REPLY DATED 20.2.2007 OF 4TH RESPONDENT TAHSILDAR ABOUT STEPS TAKEN TO DETERMINE LAND VALUE.** - **EXHIBIT P7 TRUE COPY OF OFFICIAL COMMUNICATION OF FILE MISSION MADE TO THIS PETITIONER BY TALUK OFFICE THROUGH LETTER C7133/14 DATED 15.02.2014.** - **EXHIBIT P8 TRUE COPY OF THE DIRECTION OF DISTRICT COLLECTOR DATED 29/03/2016 FORWARDING TO THE TAHSILDAR FOR NECESSARY LAWFUL ACTION.** - **EXHIBIT P9 TRUE COPY OF JUDGMENT DATED 11/03/2016 IN W.P.(C) NO. 9395/2016 DIRECTING THE 2ND AND 3RD RESPONDENTS THEREIN TO CONSIDER THE APPLICATION WITHIN TWO MONTHS OF THE JUDGMENT.** - **EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 20.06.2018 IN W.P(C) NO. 5524/2018** - **EXHIBIT P11 TRUE COPY OF THE SUBMISSION BEFORE TAHSILDAR, KUNNATHUNADU ON HEARING DATE 11/07/2018** - **EXHIBIT P12 A TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT TAHSILDAR NO. KDIS/2444/18/C7 DATED 27.07.2018.** - **EXHIBIT P13 TRUE COPY OF THE APPEAL FILED BEFORE THE 3RD RESPONDENT RDO ON 23/08/2018** - **EXHIBIT P14 TRUE COPY OF THE HEARING NOTE SUBMITTED BEFORE RDO ON 14/11/2018** W.P.(C).No.4222/2019 ..15.. **EXHIBIT P15 TRUE COPY OF THE PROCEEDINGS OF 3RD RESPONDENT RDO NO. A5-5284/18/KDS DATED 19/12/2018 DISMISSING THE APPEAL.** **EXHIBIT P16 TRUE COPY OF THE REPORT OF 6TH RESPONDENT VILLAGE OFFICER NO. 814/2018 DATED 01/03/2018 STATING THE FINANCIAL STATUS OF THE PETITIONER.**