Ponnachan K.V 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** **MONDAY, THE 13[TH] DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943** **WA NO. 1625 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 9208/2021 OF HIGH COURT OF KERALA APPELLANT/PETITIONER:** **PONNACHAN K.V** **AGED 53 YEARS** **S/O.LATE VIJAYANANDAN, SAKHA SECRETARY, PRATHIYAKSHA RAKSHA DAIVA SABHA (PRDS)-KUMARAKOM SAKHA, CHEEPUNKAL POST, VARAMBINAKOM, KOTTAYAM DISTRICT-686 563. HAVING THE RESIDENCE, PATHILCHIRA HOUSE, KUMARAKOM POST, KOTTAYAM DISTRICT-686 563, NOW RESIDING AT CN-3 (QUARTERS), TRAVANCORE CEMENTS, NATTAKOM, KOTTAYAM DISTRICT-680 566.** **BY ADVS. SAJAN VARGHEESE K. LIJU. M.P** ## **RESPONDENTS/RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE LAND REVENUE COMMISSIONER LAND REVENUE COMMISSIONERATE, LAND REVENUE COMPLEX, PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM-695 033.** - **3 THE DISTRICT COLLECTOR CIVIL STATION, KOTTAYAM-686 002.** - **4 THE REVENUE DIVISIONAL OFFICER MINI CIVIL STATION, KOTTAYAM-686 001.** W.A.No.1625 of 2021 2 - **5 THE TAHSILDAR MINI CIVIL STATION, KOTTAYAM-686 001.** - **6 THE VILLAGE OFFICER AYAMANAM VILLAGE, AYAMANAM POST, KOTTAYAM DISTRICT-686 015.** - **7 ANILKUMAR V.R. S/O. RAJENDRAN, VAZHATHOPPIL HOUSE, CHEEPUNKAL POST, KUMARAKOM NORTH, KOTTAYAM DISTRICT-686 563.** - **8 AIMANAM GRAMA PANCHAYAT AIMANAM GRAMA PANCHAYAT OFFICE, AIMANAM PO, KOTTAYAM 686 015, REPRESENTED BY ITS SECRETARY.** - **9 THE SECRETARY AIMANAM GRAMA PANCHAYAT, AIMANAM GRAMA PANCHAYAT OFFICE, AIMANAM PO, KOTTAYAM-686 015.** **BY ADVS.** - **SRI.V.TEK CHAND, SENIOR GOVERNMENT PLEADER FOR R1 TO R6 SHRI.M.P.JOSEPH TIJO FOR R7 SRI.SURIN GEORGE IPE FOR R8 & R9** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1625 of 2021 3 ## **JUDGMENT** ## **SHAJI P.CHALY,J.** This appeal is preferred by the petitioner in W.P.(C) No.9208/2021 dated 24.11.2021, whereby the reliefs sought for by the petitioner to quash Exhibit P5 report submitted by the Revenue Divisional Officer, Kottayam dated 2.2.2019 in regard to the encroachment of property and poramboke by the appellant was declined, apart from declining the relief sought for by the appellant to process Exhibit P1 application in the backdrop of Exhibit P4 order issued by the Revenue Department of the State Government dated 27.1.2020 bearing No.G.O.(Rt.) No.40/2020/Revenue in regard to the assignments of land possessed by religious places, cemeteries, cultural and arts organisations, libraries etc. Brief material facts for the disposal of the writ appeal are as follows; 2. Appellant is the Secretary of a branch of Kumarakom Sakha of Prathiya Raksha Daiva Sabha (PRDS), a religious denomination. The case of the appellant is that the 'Aradhana Mandiram' (prayer hall) may be situated in a Panchayat poramboke land but according to the appellant, the mandiram has been there for the last so many decades, as borne out from Exhibit P5 report submitted by the Revenue Divisional Officer dated 2.2.2019. Therefore, according to the appellant, the said religious denomination is entitled to have the benefit of Exhibit P4 Government Order W.A.No.1625 of 2021 4 dated 27.1.2020 and it is entitled to get the property where the Aradana Mandiram is situated, assigned in favour of the beneficiaries. In the above backdrop, Exhibit P1 application was submitted and the writ petition was filed seeking direction to dispose of the said application by the authorities. However, the learned Single Judge held that if Exhibit P4 Government Order is worked out and Exhibit P1 application is considered, it will adversely affect the larger interest of the public. 3. The paramount contention advanced by the appellant is that so far Exhibit P4 being the policy of the Government and it is not contrary to any statute, rules, Constitution of India and any other provisions of law, the stand taken by the learned Single Judge, cannot be sustained in law. The learned Single Judge, in fact, has dismissed the writ petition, basically holding that in the Basic Tax Register of the Village/Taluk, the tenure of the property in question is shown as “Kavanar Poramboke”. That apart, referring to Exhibits R5(b) and R5(c) report and sketch prepared by the Taluk Surveyor, it was found by the learned Single Judge that an extent of 0.033 hectares of land have been encroached by the religious denomination in question, which is not a legalistic approach made to the issue. The learned Single Judge has also taken into account the order of the Hon'ble Apex Court in SLP(C) No.8519 of 2006 and connected cases dated 31.1.2018, whereby directions were issued to remove all encroachments by the religious body on public land. W.A.No.1625 of 2021 5 4. The Apex Court has further held that no unauthorised construction can be carried out or permitted by the temples, churches, mosques etc. in public places and it was further ordered that, if unauthorised construction has already taken place, the Government can on case to case basis review and take appropriate steps. It was further found by the learned Single Judge that the Government's power to assign poramboke or Government land is traceable to the Kerala Land Assignment Act, 1960 and the Rules made thereunder; that the land belonging to the State is held by the Government as a public trustee and the Government cannot assign or allow occupation of Government land except in accordance with the statutory provisions under the Kerala Land Assignment Act, 1960 and the Rules thereto. Learned Single Judge has also taken into account various provisions of the Land Assignment Act, 1960 and the Rules thereto and held that the Government would have to strictly follow the procedures prescribed for assignment of land under law. Learned Single Judge has also taken note of the fact that the organisation in question is admittedly an encroacher of a river poramboke, and a learned Single Judge of this Court in the Judgement in O.P.(C) No.16077/1996 dated 13.1.1997 directed the Government to remove encroachment from kayal poramboke in and around Ernakulam; that a kayal puramboke or thodu poramboke cannot be assigned inasmuch as it is required to protect the river and kayal itself. 5. It is also found that the encroachment made by the organisation has W.A.No.1625 of 2021 6 deprived the neighbouring people from having access to the thodu to fetch water and it was in the said background, the learned Single Judge has directed the Police to grant Police protection to the petitioner in the connected writ petition W.P.(C) No.20325/2019 to fetch water from the water body situated by the side of the property encroached. 6. The paramount contention advanced by the appellant in the appeal is that learned Single Judge exceeded his jurisdiction and did not follow the mandates of Exhibit P4 Government Order and since Exhibit P4 is a policy of the Government, it is to be followed scrupulously by the Government. That apart, it is contended that the order of the Apex Court in regard to the encroachment into public properties by religious organisations, the Government is vested with powers to make its own policies deviating from the judicial pronouncements; that the property in question is a Panchayat poramboke land and therefore, the Kerala Land Assignment Rules are not applicable to such properties. It is also contended that it is clear from the recitals contained in Exhibit P5 report of the Revenue Divisional Officer that the prayer hall is situated in the property in question for the last several decades and therefore, the appellant is entitled to get assignment by considering Exhibit P1 application. 7. We have heard learned counsel for appellant Sri. Sajan Varghese, learned Senior Government Pleader Sri.Tek Chand, Sri.Surin George Ipe for the Panchayat and the counsel for the party respondent viz., Anilkumar.V.R.(7[th] respondent) and W.A.No.1625 of 2021 7 ## perused the pleadings and materials on record. 8. The sole question to be considered is whether any manner of interference is warranted to the judgement of the learned Single Judge?. In fact when the writ appeal came up for admission, in order to ascertain the nature of entry in the Basic Tax Register in regard to the property in question as “Kavanar Poramboke”, we directed the learned Senior Government Pleader to explain the nature of tenure entered in the Basic Tax Register through the Village officer concerned. Accordingly, when the matter was taken up today, learned Senior Government Pleader has produced a report of the Village Officer concerned dated 7.11.2021, from where we are satisfied that the disputed property is a river poramboke. It was taking into account the said nature of the property that the learned Single Judge has held that the property is not assignable and therefore, no direction can be issued to the statutory authority to consider Exhibit P1 application submitted by the appellant for assignment. Moreover it is significant to note that by virtue of Section 2(1) of the Kerala Government Land Assignment Act 1960, the assignment of land can be granted subject to all rights of way and other public rights and to the natural and easement rights of other landowners and to all customary rights legally subsisting . The said provision assumes more relevance since the learned Single Judge has found that if the land in question is assigned in favour of the appellant it would affect the rights of the 7th respondent and it was after finding so only police protection was W.A.No.1625 of 2021 8 directed to be granted to the said respondent if situation warrants . It is also relevant and important to note that rule 7(1) of the Kerala Land Assignment Rules, 1964 dealing with priority to be observed in assignment, takes care of a situation where assignment need be granted to any encroachment prior to 1st day of August 1971, only if it is unobjectionable. Therefore even assuming that the appellant was in possession of the property in question for decades as is contented , that will not confer any absolute right on the appellant to get the land assigned in his favour . 9. The appellant has produced along with the appeal memorandum, the order of the Apex Court in **Union of India v. State of Gujarat** dated 31.1.2018, wherein the Apex Court considered the question with respect to the encroachments made by religious institutions on public streets, public parks or other public places, and in respect of the unauthorised construction of religious nature, which has already taken place, the State Governments and the Union Territories were directed to review the same on case to case basis and take appropriate steps, as expeditiously as possible. 10. Having considered the findings and observations made by the learned Single Judge, we are of the clear opinion that the learned Single Judge has taken into account the pros and cons of the subject issue and has rendered the judgement taking into account the provisions of the statutes and law involved in the subject matter. In an intra court appeal, this Court needs to look into only whether there is any jurisdictional error or other legal infirmities in the judgement of the learned W.A.No.1625 of 2021 9 Single Judge, liable to be interfered with. However we could not locate any such legal infirmities justifying our interference Therefore there is no force in the contentions advanced by the appellant . 11. Having analysed the situations, we are of the considered opinion that the appellant has not made out any case for interference in an intra court appeal filed under section 5 of the Kerala High Court Act, 1958. Needless to say, writ appeal fails, accordingly it is dismissed. Sd/- **S.MANIKUMAR CHIEF JUSTICE** smv Sd/- **SHAJI P.CHALY JUDGE** W.A.No.1625 of 2021 10 ## **APPENDIX** ## **PETITIONER'S ANNEXURES** **ANNEXURE A : TRUE COPY OF THE ORDER DATED 31.1.2018 PASSED IN SLP(C) NO.8519/2006 ON THE FILE OF THE HONOURABLE SUPREME COURT OF INDIA** **ANNEXURE B: TRUE COPY OF THE JUDGMENT DATED 13.01.19978 PASSED IN OP NO.16077/1996 ON THE FILE OF THIS HONOURABLE COURT.**