Narasimha Bhat (dead) and legal heirs v. State of Kerala, Tahsildar Kasaragod, District Collector Kasaragod

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 17TH DAY OF OCTOBER 2019 / 25TH ASWINA, 1941** ## **WP(C).No.30218 OF 2009(V)** ## **PETITIONER/S:** |**1**|**NARASIMHA BHAT, (DEAD)**<br>**SO.RAMAKRISHNA BHAT,**<br>**R/AT NELLITHADUKKA HOUSE, BAYAR VILLAGE,**<br>**BERIPADAVU POST, KASARAGOD DISTRICT.**| |---|---| |***1.**|**SUPPLEMENTAL PETITIONERS IMPLEADED :-**<br>**P.SHARADA**<br>**W/O LATE P.NARASIMHA BHAT,**<br>**R/AT NELLITHADKA HOUSE, BERIPARADU PO,**<br>**UPPALA (VIA), MANJESWARAM TALUK,**<br>**KASARAGOD DISTRICT.**| |**2**|**BHAGYALAKSHMI M**<br>**D/O LATE P NARASIMHA BHAT,**<br>**R/AT 826, MARUVALA 10TH CROSS,**<br>**NEAR INDIAN OVERSEAS BANK, ROOPA NAGER,**<br>**MYSORE-570026.**| |**3**|**P.KRISHNA PRASAD**<br>**S/O LATE P.NARASIMHA BHAT,**<br>**R/AT NELLITHADKA HOUSE, BERIPARADU PO,**<br>**UPPALA (VIA), MANJESWARAM TALUK,**<br>**KASARAGOD DISTRICT.**| |**4**|**P.JAYASREE**<br>**D/O LATE P.NARASIMHA BHAT,**<br>**R/AT UPPANGALA HOUSE, BALLARE PO,**<br>**SULLYA TALUK, DK DISTRICT, PIN-574212.**| |**5**|**P.RAJESHWARI**<br>**D/O LATE P.NARASIMHA BHAT,**<br>**R/AT BADEKAI HOUSE, NARINGANA PO,**<br>**BANTWAL TALUK, DK DISTRICT, PIN-575018.**| |**6**|**P.RAJANI**<br>**D/O LATE P.NARASIMHA BHAT,**<br>**R/AT NELLITHADKA HOUSE, BERIPARADU PO,**<br>**UPPALA (VIA),MANJESWARAM TALUK,**<br>**KASARAGOD DISTRICT.**| **WP(C).No.30218 OF 2009** **2** **==> picture [95 x 69] intentionally omitted <==** *** (SUPPLEMENTAL PETITIONERS ARE IMPLEADED AS LEGAL HEIRS OF THE DECEASED SOLE PETITIONER AS PER ORDER DATED 20/12/2018 IN IA.NO.01/2018)** **BY ADV. SRI.KODOTH SREEDHARAN** ## **RESPONDENT/S:** |**RESPONDENT/S**<br>**:**|| |---|---| |**1**|**STATE OF KERALA,**| ||**REPRESENTED BY ITS PRINCIPLE SECRETARY,**| ||**REVENUE DEPARTMENT, GOVT SECRETARIAT**| ||**THIRUVANANTHAPURAM.**| |**2**|**THE TAHSILDAR, TALUK OFFICE**| ||**KASARAGOD.**| |**3**|**THE DISTRICT COLLECTOR,**| ||**KASARAGOD.**| ||**R1-3 BY RI. RON BASTIAN, GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.30218 OF 2009** **3** ## **JUDGMENT** This writ petition is filed seeking directions to the respondents to assign Government Land in Re.Sy.Nos.301/1B and 302/1C of Bayar Village, Kasargod District. It is submitted that the petitioner was in possession and enjoyment of the Kumki land lying adjacent to his properties. He had submitted an application for assignment of the Kumki land in the year 1963. It is submitted that after due enquiry, the application was received and numbered as DR No.9341/66-67 and was later re- numbered as LA No.177/73/Bayar. 2. It is stated that when action for assignment of the properties was not taken, the petitioner submitted complaint before the Revenue Adalath and it was informed that the Village officer had been required to submit the dis-reservation proposal since the part of the land was reserved for being assigned to members of SC/ST Community. It is stated that Ext.P2 proposal for dis-reservation was **WP(C).No.30218 OF 2009** **4** submitted by the Village officer. Even thereafter, no steps had been taken to assign the land to the petitioner. 3. The petitioner approached this Court seeking assignment of the property relying on Rule 7A of the Land Assignment Rules, which provided for preferential right of assignment to occupants of Kumki lands, on an application being preferred in time. 4. A Counter Affidavit has been filed by the second respondent in the year 2010 stating that the application for assignment of land had been filed by the petitioner on 30.12.1966 and it was first numbered as DR.9341/66-67 and subsequently renumbered as LA.No.177/73/Bayar. It is stated that Ext.P2, report of the Village officer is not available in the files. But it is admitted that the Village officer had been directed to submit disreservation proposal since the land in Re.Sy.No.301/1B was set apart for assignment to SC/ST families. **WP(C).No.30218 OF 2009** **5** 5. It is stated that on receipt of a fresh proposal for dis-reservation from the Village officer on the basis of the existing Government Orders, further steps for assignment of the property will be taken. It is stated that the assignment proposal was placed before the Taluk Land Assignment Committee on 26.09.2008 and the Committee had objected to the proposal on the ground that the proponent is already in possession of 9.36 acres of land in Bayar Village and out of the 2.50 acres of land proposed, an extent of 1.04 acres in Re.Sy.No.310/1B is reserved for assignment to SC/ST families. It is stated that further proceedings will be taken after obtaining the recommendation of the Taluk Land Assignment Committee. With regard to the extent of the land, it is repeatedly stated in the counter affidavit that the Kumki land in possession of the petitioner is 1.46 acres in Re.Sy.No.302/1C and 1.04 acres in Re.Sy.No.301/1B of the Bayar Village. 6. Thereafter a further counter affidavit has been placed on record by the second respondent on **WP(C).No.30218 OF 2009** **6** 29.07.2019. It is stated the Taluk Land Assignment Committee has rejected the proposal for assignment of land, on the ground that the petitioner is already in possession of 9.36 acres of land and that 1.04 acres of Re.Sy.No.301/1B is reserved for assignment to SC/ST families. It is submitted that the recommendation of the Taluk Land Assignment Committee is mandatory for assignment of land as per the Land Assignment Act and Rules and that there is no provision to place a proposal before the Taluk Land Assignment Committee for a second time. It is stated that in the above circumstances, the proposal cannot be proceeded further. 7. The learned counsel for the petitioner placed reliance on the provisions contained in Rule 7A of the Kerala Land Assignment Rules, 1964 as also on the decisions of this Court in _**Parameswara Bhat v. Tahsildar, Kasargod and others [1967 KLT 766]**_ and _**Kammaran Maniyan v. Mahalakshmi Rajani [1980 KLT 971]**_ and the Apex Court in _**State of Mysore v. K.Chandrasekhara Adiga [1976 KHC 750]**_ **.** **WP(C).No.30218 OF 2009** **7** 8. The learned counsel also placed reliance on the recent decision of the Division Bench of this Court in W.A.No.1167 of 2015 dated 19.06.2019 whereby the Division Bench had considered the preferential claim for assignment of Kumki land and had held that the right is a preferential statutory right and once the Competent Authority decides to assign the land to the Kumkidar, it cannot place illegal conditions for the said assignment. Relying on the decisions, the learned Counsel for the petitioner would contend that the action of the respondents in having rejected the applications for assignment of the land on the basis of a recommendation by the Taluk Land Assignment Committee which did not consider the Provisions of Rule 7A is completely illegal and unsustainable. 9. The learned Government Pleader would submit that it is only on account of the rejection of the proposal by Taluk Land Assignment Committee that the assignment could not be made in favour of the petitioner **.** It is submitted that the scheme of the **WP(C).No.30218 OF 2009** **8** Rules do not provide for placing the matter before the Taluk Land Assignment Committee for a second time. 10. I have considered the contentions raised. Rule 7A of the Kerala Land Assignment Rules provides that preferential right given to the former Kumkidars (who had applied for assignment before the 6th December, 1968), in the matter of assignment of Kumki lands upto limit of two chains from the warg land but subject to the ceiling prescribed in the Kerala Land Reforms Act, 1963. In the instant case, it is not in dispute that the lands in question having an extent of 2.50 acres are Kumki lands which the petitioner was in possession and enjoyment of for the past several years. The fact that the petitioner had submitted an application in the year 1966, long prior to the cut off date of 06.12.1968 is also an admitted fact. The Apex Court and this Court has considered the nature of the Kumki rights of owners of warg lands in South Canara and it has been held that the right is a statutory right and there is a **WP(C).No.30218 OF 2009** **9** specific preference provided in the matter of assignment of Kumki lands in favour of the holders of such rights. In the State of Kerala, the said preferential right has been given statutory recoginition under Rule 7A of the Kerala Land Assignment Rules. 11. In view of the specific wording of the Rule, it is clear that the right of the former Kumkidar for assignment is a clear preferential right, provided, the application for assignment is made before the date mentioned in the Rule. In such a case, the reasons stated for rejection of the application by the Taluk Land Assignment Committee that the petitioner had in his possession 9.36 acres of land and that the part of the property had been reserved for assignment to landless SC/ST families, would not be relevant in view of the preference provided by the Rule. 12. The original petitioner having passed away, his legal heirs have been impleaded as petitioners in the writ petition. In view of the **WP(C).No.30218 OF 2009** **10** fact that the family consisted of the petitioner his wife and five children, it would appear that the contention that the property would exceed the limits as provided in Section 82 of the Kerala Land Reforms Act, also cannot be accepted. Further contention that portion of the land is reserved for assignment to SC/ST families will also not be relevant in view of the fact that Rule 7A specifically provides for a preferential right in favour of the former Kumkidar for assignment. Exts.P1 and P2 would show that appropriate steps had been taken for dis-reservation of the property in question by providing alternative property for assignment to the landless SC/ST families. 13. These aspect have apparently not been brought to the notice of the Taluk Land Assignment Committee. The rejection of the claim by the Taluk Land Assignment Committee without considering the specific preference given to a Kumkidar by Rule 7A of the Land Reforms Act and without considering the proposal for dis-reservation as is evident from **WP(C).No.30218 OF 2009** **11** Exts.P1 and P2 and which is not denied in the counter affidavit is therefore completely vitiated for want of application of mind. The Taluk Land Assignment Committee ought to have taken note of the relevant aspects, including the preferential right of the petitioner and ought to have considered the application of the petitioner for assignment in accordance with the provisions of Rule 7A. In the above view of the matter, this writ petition is allowed. There will be a direction to the respondents to take up and pass appropriate orders on the application made by the petitioner dated 30.12.1996 for assignment of 2.50 acres of property comprising of 1.04 acres in Re.Sy.No.301/1B and 1.46 acres of land in Re.Sy.No.302/1C of Bayar Village as admitted in the counter affidavits filed on behalf of the respondents. The learned counsel for the petitioner submits that the mentioning of the extent in the prayer portion of the writ petition is a clear mistake and the petitioner is entitled to assignment of the Kumki land on the basis of the **WP(C).No.30218 OF 2009** **12** application preferred by him as well as Ext.P2 report which would show the extent of 2.50 acres of land. The application shall be reconsidered and appropriate orders shall be passed assigning the land to the petitioner, if it is otherwise in order, taking note of the application preferred on 30.12.1966 and the preferential right provided in Rule 7A of the Kerala Land Assignment Rules. Orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN SMA JUDGE** **WP(C).No.30218 OF 2009** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE PROCEEDINGS OF THE**| |---|---| ||**TAHSILDAR DT.2/1/2006 TO THE PETITIONER**| |**EXHIBIT P2**|**TRUE COPY OF THE PROCEEDINGS OF THE VILLAGE**| ||**OFFICER TO THE PETITIONER**| |**EXHIBIT P3**|**TRUE COPY OF THE APPLICATION BEFORE THE LOK**| ||**ADALATH DT.15/1/2008 BY THE PETITIONER**| |**EXHIBIT P4**|**TRUE COPY OF THE PROCEEDINGS OF THE LOK**| ||**ADLATH COMMUNICATED TO THE PETITIONER FROM**| ||**THE TAHSILDAR DT.13.6.2008**| ## **RESPONDENT(S)' EXHIBITS :- NIL** **//TRUE COPY//** **PA TO JUDGE** **SMA**