P.A. Johny v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 7[TH] DAY OF JANUARY 2022 / 17TH POUSHA, 1943** ## **WA NO. 1334 OF 2021** ## **AGAINST THE JUDGMENT IN WP(C) 34034/2014 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER IN W.P.(C):** **P.A.JOHNY AGED 64 YEARS S/O. LATE PADIKKALA ANTHAPPAN, NEAR LATIN CHURCH ROAD, THRISSUR - 620 001.** **BY ADVS. SUMATHY DANDAPANI (SR.) MILLU DANDAPANI** ## **RESPONDENTS:** - **1 STATE OF KERALA REP. BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE CHAIRMAN TALUK LAND BOARD, THRISSUR - 680 020.** - **3 THE SUB INSPECTOR OF POLICE PERAMANGALAM POLICE STATION, THRISSUR DISTRICT - 680 545.** - **4 THE DISTRICT SUPERINTENDENT OF POLICE THRISSUR - 680 020.** - **5 THE DISTRICT COLLECTOR THRISSUR - 680 020.** - **6 ADDL.R6. KERALA POLICE HOUSING CONSTRUCTION CORPORATION, CHANDRA SEKHARAN NAIR STADIUM, PALAYAM, VIKAS BHAVAN, THIRUVANANTHAPURAM - 695033. (ADDL.R6 IS IMPLEADED AS PER ORDER DATED 21.08.2019 IN IA NO. 2/2019). BY ADVS. SRI.C.K.GOVINDAN SRI.L.P.ARAVINDAKSHAN SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.01.2022, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1334 of 2021 2 **'CR'** ## **JUDGMENT** Dated this the 7[th] day of January, 2022 ## **SHAJI P.CHALY,J.** This writ appeal is preferred by the petitioner in W.P.(C) No.34034 of 2014, challenging the judgment of the learned Single Judge dated 29[th] July, 2020, whereby the learned Single Judge dismissed the writ petition. Subject issue relates to earmarking of land vested in the Government under the provisions of the Kerala Land Reforms Act 1963 for public purpose as per section 96 of Act 1963. Brief material facts for the disposal of the writ appeal are as follows; 2. Appellant is the son of one late Padikkala Anthappan. Late Anthappan filed a Ceiling Return under Section 85(8) of the Kerala Land Reforms Act, 1963, hereinafter called, “Act, 1963”. The land Board, as per an order dated 4.5.1977, which was later revised in the year 1978, directed Anthappan to surrender 35.67.081 Acres of land. As per document dated 11.10.1961 of Sub Registry, Mundoor, late Anthappan had gifted some properties in favour of the appellant. Since the appellant was a minor at that time, his properties were also included in the Ceiling W.A.No.1334 of 2021 3 case of Anthappan. 3. According to the appellant, he has no grievance regarding the extent of land ordered to be surrendered, which was duly complied with by late Anthappan. But the grievance highlighted in the writ petition is that by the action of the Land Board/ District Collector, assigning an extent of 1.60 Acres of land from the surrendered land, for putting up Police quarters is bad and illegal. Besides, putting up of walls completely preventing the appellant from making use of his 65 cents of land, which is now in a land locked position and therefore, the following reliefs were sought for in the writ petition: i) Call for the records leading to the order passed by the Police Department by G.O.(Rt.) No.747/1987 dated 14.5.1987 and Order No.B5 46329/87 dated 21.7.1987 of District Collector, Thrissur, and issue a writ of certiorari or any other writ, order or direction, quashing the same. ii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 5[th] respondent, District Collector, Thrissur, to produce order, G.O.(Rt.) No.747/1987 dated 14.5.1987 and Order No.B5 46329/87 dated 21.7.1987. iii. Declare that the action of the District Collector in assigning the land for Police department is contrary to the provisions under section 96(1) (ii)(a) of the Land Reforms Act and hence ab initio void. iv. Pass such other appropriate writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the W.A.No.1334 of 2021 4 case. v. Award costs. 4. The learned Single Judge, after taking into account the pros and cons of the matter, and interpreting the provisions of Kerala Land Reforms Act, held that the Government have power under section 96(1A) of the Kerala Land Reforms Act, 1963 to reserve any land for public purpose; that the residuary power conferred on the Government under section 96(1A) would enable the Government to allot land citing public purpose; that the allotment of land, in the case on hand, appears to be for the Police Department for the construction of the Police quarters and other structures and therefore, it cannot be questioned on the ground that it lacks public purpose; that when the Government interest itself is protected, that itself becomes a public purpose; that the appellant cannot question the allotment of land to the Police quarters, apart from the merit of the matter. That apart it was held that in regard to the right of the appellant to question the allotment based on his claim under section 85(8) of Act, 1963, has attained finality as per Exhibit P5 judgment of this Court in CRP No.112 of 2011 dated 17[th] October, 2014 and therefore, from that moment, the appellant's right is foreclosed to challenge the allotment of the land. That apart it was held that the W.A.No.1334 of 2021 5 appellant's right to question the allotment was available till his claim under section 85(8) is decided and once the decision is taken and rejected, the appellant no longer retains any right to question the allotment. The appellant cannot be treated as any potential beneficiary to raise such a claim as contemplated under section 96. 5. It was also held that in a private interest litigation, the appellant cannot seek a public interest, taking up the cause of beneficiaries, who may be entitled for the benefits under section 96 of Act 1963, and it was accordingly that the reliefs sought for, were declined. It is thus challenging the legality and correctness of the judgment of the learned Single Judge, this appeal is preferred. 6. The paramount contention advanced in the appeal is that the learned Single Judge erred in holding that claim under section 85(8) of Act, 1963 had attained finality by rejecting his claim and that moment, the appellant's right is foreclosed to further challenge the allotment of land. It is also stated that when Exhibit P5 order has been rendered in CRP No.112 of 2011, it was held that the handing over of the land to the Police Department whether is a permissible exercise,can be challenged independently by the appellant. Therefore, having given an opening to challenge the two orders passed by the Government as well as the W.A.No.1334 of 2021 6 District Collector dated 14.5.1987 and 21.7.1987 respectively, the learned Single Judge was not right in holding that the issue has attained finality by virtue of the finality of the proceedings under section 85(8) of the Act, 1963. Therefore, according to the appellant, the judgment of the learned Single Judge requires interference. 7. On the other hand, learned Senior Government Pleader and counsel appeared for the Kerala Police Housing Construction Corporation – additional respondent No.6, have advanced arguments, fully supporting the judgment of the learned Single Judge. 8. We have heard learned Senior Counsel for appellant Smt.Sumathi Dandapani, assisted by Adv.Millu Dandapani, learned Senior Government Pleader Sri.K.P.Harish, Sri C.K. Govindan learned counsel appearing for Kerala Police Housing Construction Corporation – additional respondent No.6, and perused the pleadings and materials on record. 9. The sole question to be considered is whether any manner of interference is required to the judgment of the learned Single Judge ? The issue basically revolves around section 96 of the Kerala Land Reforms Act, 1963, dealing with assignments of land by Land Board, which reads thus: W.A.No.1334 of 2021 7 “ **96. Assignment of lands by Land Board.** - [(1) The Land Board shall assign on registry subject to such conditions and restrictions as may be prescribed, the lands vested in the Government under Section 86 or Section 87, as specified below: - (i) the lands in which there are kudikidappukars shall be assigned to such kudikidappukars; (ii) the remaining lands shall be assigned to- - (a) landless agricultural labourers; and - (b) small-holders and other landlords who are not entitled to resume any land: Provided that eighty-seven and a half per cent of the area of the lands referred to in clause (ii) available for assignment in a taluk shall be assigned to landless agricultural labourers of which one-half shall be assigned to landless agricultural labourers belonging to the [Scheduled Castes, the Scheduled Tribes, and such other socially and economically backward classes of citizens as may be specified in this behalf by the Government by notification in the Gazette.] **[Explanation** - For the purposes of this Sub-section- (a) a kudikidappukaran or the tenant of a kudiyirippu shall be deemed to be a landless agricultural labourer if he does not possess any other land; (b) “kudikidappukaran” shall include a person who was a kudikidappukaran to whom a certificate of purchase has been issued under Sub-section (2) of Section 80C.] (1A) Notwithstanding anything contained in Sub-section (1), the Land Board may, if it considers that any land vested in the Government under Section 86 or Section 87 is required for any public purpose, reserve such land for such purpose.] W.A.No.1334 of 2021 8 - (2) The Land Board shall not assign to any person more than one acre in extent of land. - (3) Where a person possesses any land, only so much land as will make the extent of land in his possession [one acre] shall be assigned to him. ” 10. On a reading of the provisions of section 96, it is clear that the Land Board is vested with powers to assign on registry the land vested in the Government under section 86 or section 87 of Act 1963 subject to such conditions and restrictions as may be prescribed, to the persons delineated under clauses 1 & 2 and in the manner prescribed in the proviso thereto. 11. However, sub-section (1A) is a clear exception carved out from the provisions of section 96(1) of Act, 1963 since it is fortified by a non obstante clause, whereby it is stipulated that notwithstanding the provisions in sub-section (1) of section 96, the Land Board has liberty to reserve any land vested in the Government for public purposes under sections 86 & 87 of the Act, 1963. 12. The paramount contention advanced by the learned counsel for appellant is that the Land Board is vested with powers to assign land to any person only upto 1 acre and therefore, earmarking of land for public purpose exceeding 1 acre cannot be sustained under law. W.A.No.1334 of 2021 9 13. On an analysis of the provisions of section 96 of Act 1963, it is distinct and clear that sub-section (1A) is independent of the other provisions. Therefore, in so far as the reservation of land for public purpose is concerned, the confinement of 1 acre would not apply. Therefore, it is clear that the Land Board was vested with ample powers to earmark any land vested in the Government under section 86 or section 87, irrespective of the extent prescribed for assignment to any person limiting to 1 acre. 14. Moreover, the issue is guided by Chapter IV of Kerala Land Reforms (Ceiling) Rules, 1970 dealing with assignment of land vested in Government and management of the lands pending assignment, constituted as per sections 95 to 98 of Act 1963 . Rules 25 to 33 therein deal with management of the land, protection of land from unauthorised occupation, applications to be invited, conditions and restrictions regarding assignment, preparation of list of persons eligible for assignment, offer, acceptance and assignment, reservation for public purposes and register of lands reserved and assigned. 15 A close reading of the aforesaid rules conjointly with section 96 of Act 1963 make it clear that the assignment of land has been clearly distinguished from reservation of the land for public purposes by the W.A.No.1334 of 2021 10 rule making authority, and the restriction as to the area of one acre is correlated only with the assignment. Rule 32 also would amply prove the same and it reads thus: “ **32. Reservation for public purposes.-** Notwithstanding anything herein before contained, the Land Board may at any stage after a land is surrendered or taken possession of and before the execution of the deed of assignment under sub-rule (2) of Rule 31 reserve any such land or portion thereof for public purposes, such reservation and determination of public purposes being made in such manner as it thinks fit; and on such reservation, such land or portion shall be deemed to be land not available for assignment.” 16. Therefore, on an analysis of rule 32, it is categoric and clear that the Land Board is vested with powers at any stage after a land is surrendered or taken possession of and before the execution of the deed of assignment under sub-rule (2) of rule 31, reserve any such land or portion thereof for public purpose. Appellant has no case that any of the provisions of section 96 of Act 1963 or Rules, 1970 is violated by the Land Board while reserving land for public purpose. It is also clear that the land was reserved for construction of Police quarters, which cannot be said to be not a public purpose at any stretch of imagination, because it is for the protection , safety and welfare of the citizens by maintaining law and order, and to translate W.A.No.1334 of 2021 11 the intentions of the fundamental rights guaranteed under the Constitution of India the police force is maintained by the State. 17. The provisions of law are so clear regarding the assignment of land for the persons prescribed under section 96 of Act, 1963 and Rules, 1970. It is also clear that the reservation of land for public purposes is different from the assignment of land to the deserving persons in contemplation of law. 18. On going through the pleadings put forth by the petitioner in the writ petition and the appeal memorandum, it is clear that appellant is indirectly attempting to make out a case that due to the reservation of land for public purpose, the entry to the appellant's property is lost. 19. Anyhow, on a reading of Exhibit P5 judgment in CRP No.112 of 2011 dated 17[th] October, 2014, it is clear that the said issue of easement raised by the appellant was considered therein and the appellant was granted liberty to establish the same by filing a suit impleading the Government and Police Department as parties wherein the grievance of the appellant can be ventilated. 20. Therefore, it can be seen that if the appellant had any claim with respect to the easement right in order to enter into the property alleged to be held by the appellant, the appellant had to establish the W.A.No.1334 of 2021 12 same before a competent civil court. Having not taken any steps to establish the right of easement, the appellant is not entitled to reopen the said aspect concluded in the above said revision, through the writ petition, since it is barred also by the principles of res judicata, which principle of law is by now trite that applies to a proceeding under article 226 of the Constitution of India. Since the position of law is so clear as discussed above, we do not think the appellant has made out any case to interfere with the judgment of the learned Single Judge, there being no jurisdictional error or other legal infirmities, justifying us to do so, in an intra court appeal. Needless to say, writ appeal fails, accordingly it is dismissed. Sd/- **`S.MANIKUMAR CHIEF JUSTICE`** ``` smv ``` Sd/- **`SHAJI P.CHALY JUDGE`**