Rajagiri Rubber & Produce Company Limited v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941** **WA.No.2335 OF 2015** **AGAINST THE JUDGMENT IN WPC 9432/2007 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **RAJAGIRI RUBBER & PRODUCE COMPANY LIMITED PB NO.47, W-21/674, BEACH ROAD, ALLEPPEY 688 001, REPRESENTED BY ITS DIRECTOR MR. R.VENUGOPALAN.** **BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR,E.K.NANDAKUMAR(SR) SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS** ## **RESPONDENTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE REVENUE SECRETARY REVENUE DEPARTMENT, SECRETARIAT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM – 695 001.** **3 THE ADDITIONAL SECRETARY RENVENUE (U) DEPARTMENT, SECRETARIAT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM – 695 001.** **4 THE DISTRICT COLLECTOR COLLECTORATE, KOLLAM – 691 013.** **5 THE TAHSILDAR PATHANAPURAM TALUK, PUNALUR PO, KOLLAM - 691 305.** **2** ## **W.A.No.2335 of 2015** **6 THE VILLAGE OFFICER, VALAKKODU VILLAGE, PUNALUR, KOLLAM – 691 305.** **R1-6 BY SR. GOVT.PLEADER SRI.V.TEKCHAND** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.2335 of 2015** **3** ## **JUDGMENT** Dated this the 11[th] day of March, 2020 ## **S.Manikumar, C.J.** Correctness of the judgment in W.P.(C)No.9432 of 2007 dated 23.2.2015 is challenged in this appeal. 2. Short facts leading to the appeal are as hereunder: The appellant/writ petitioner owns a rubber estate by name 'Shaliacary Estate', which is cultivated with rubber trees. An extent of 3.52 acres of land comprised in Survey Nos.538/1/376 and 538/1/363 of Valakkodu Village in Pathanapuram Taluk, belonging to Government is in the possession of the appellant. The land is surrounded by other registered holdings of the appellant. According to the appellant, above said land was purchased along with other items of properties, as per Ext.P2 registered sale deed No.3745/1962 of Punalur Sub Registry dated 8.5.1962. The property was conveyed to the appellant by one Oommen Mathew and Daniel Mathew. They had purchased the land from one Moideen Rawther Mohammed Mustafa Rawther as per the sale deed No.555/1951 of Aranmula Sub Registry Office. Sri.Moideen Rawther Mohammed Mustafa Rawther had obtained the Government land under a 'Kuthaka Pattam lease'. Thus, along with other properties purchased by the appellant, Government land was also in the possession of the company, pursuant to the purchase referred to above. Since then, the **W.A.No.2335 of 2015** **4** appellant has been in continuous possession and enjoyment of the property. According to the appellant, as per Ext.P1 application dated 13.11.1981, they had sought for assignment of the extent of 3.52 acres of land on registry. While so, proceedings were initiated against the appellant, alleging that they were in unauthorised occupation of the Government land. Therefore, they challenged the said proceedings before this court in O.P.No.7737 of 1991. As per Ext.P3 judgment dated 9.7.1992, the said original petition was allowed and the proceedings issued against them were quashed. Though the respondents had filed W.A.No.1472 of 1992 against the said judgment, by Ext.P4 judgment dated 15.1.1999, the writ appeal was dismissed. The 1[st] respondent was also directed to pass final orders on the application for assignment submitted by the appellant. Pursuant to Ext.P4, the appellant's application was considered and rejected by Ext.P7 order dated 21.12.2006. It was challenging Ext.P7 that W.P.(C)No.9432 of 2007 was filed. 3. Writ court, after considering the pleadings and the materials available on record, dismissed the writ petition by observing thus: “7. Heard. It is not in dispute that, the land in the present case admeasuring 3.52 Acres belongs to the Government. It is also not in dispute that the land is surrounded by the other properties of the petitioner. I find from the documents produced before me that, the authorities have reported that proceedings for acquisition of **W.A.No.2335 of 2015** **5** necessary land for providing a way or means of access to the property so as to make the same usable for public purposes, have been initiated. 8. Though the petitioner contends that the property is possessed by them, under 'Kuthakapattom lease', the said contention cannot be accepted. The 'Kuthakapattom lease' was granted in favour of Moideen Rawther Mohammed Mustafa Rawther. No permission of the Government has been obtained for transfer of the 'Kuthakapattom' land to the petitioner. Therefore, the petitioner cannot take shelter under the 'Kuthakapattom lease', that was granted in favour of their predecessor in interest. I notice that, proceedings had been initiated against the petitioner in the year 1969 as L.C. Case No.123/1969, and that the said proceedings had ended in orders against the petitioner. According to the counter affidavit, an appeal and revision filed against the said orders had been dismissed and the proceedings have become final. Though the counter affidavit is seem to have been filed on 21.01.2008, no reply affidavit has been filed refuting the said contentions. Therefore, it has to be taken that the proceedings under the Land Conservancy Act have ended in favour of the Government. 9. It is worth noticing that pursuant to the direction in Ext.P4 judgment, the question of assigning the land to the petitioner was considered by the 1[st] respondent. The case of the learned Government Pleader is that, the petitioner's application Ext.P1 had been rejected on 22.06.1987 and that the said rejection had become final. In spite of the above, the matter was re-considered by Ext.P7. It has been stated in Ext.P7 that there are a number of landless people in Kollam District to whom land has to be assigned, for the purpose of which sufficient land is not available. The fact that the petitioner had purchased the land that was on 'Kuthakapattom lease' from another person without obtaining **W.A.No.2335 of 2015** **6** previous permission from the Government has also been taken note of. The petitioner's application for assignment of land has been rejected mainly for the reason that the land is necessary for distribution to landless people in Kollam District. I do not find any infirmity in the said proceedings. 10. The learned counsel for the petitioner has taken strong objection to the reliance placed on Rule 14 of the Rules for Assignment of Land (Municipal and Corporation Areas) Rules, 1995 which, according to the counsel, was not in force at the time when Ext.P1 application was submitted. However, reliance on Rule 14 of the said Rules cannot be said to be a very serious factor affecting the sustainability of Ext.P7. Primarily, the petitioner's application has been rejected for the reason that the land is needed for distribution among landless people. I notice that the petitioner has no right to claim assignment of the land. Therefore, it has to be held that there is no infirmity in Ext.P7, warranting interference with the same in exercise of my jurisdiction under Article 226 of the Constitution of India.” ## 4. Being aggrieved, instant appeal is filed on the following ## grounds: - A. The finding of the learned single Judge that land conservancy proceedings was initiated against the appellant and the said proceedings have become final is absolutely without any basis. The entire land conservancy proceedings were set-aside by this Hon'ble Court in O.P.No.7737/1991 as per Ext.P3 judgment dated 9.7.1992. The said judgment was challenged by the respondent by filing W.A.No.1472/1992 which was also dismissed by this Hon'ble Court. So, the finding of the learned Single Judge relying on the contentions of the respondent that **W.A.No.2335 of 2015** **7** the land conservancy proceedings have become final is absolutely without any basis. - B. The learned single Judge ought to have found that the 3.52 acres of land in the possession of the appellant is surrounded by the plantations of the appellant and there is no way to the said land. If the Government is to acquire the said land for the purpose of giving it to landless people, in order to provide a way large extent of land cultivated with rubber plantation has to be acquired for forming the way and that will disturb and unsettled the entire plantation activities. In such circumstances, the learned single Judge ought to have found that Ext.P7 order is absolutely without any basis. - C. The reasoning in Ext.P7 order that the lack of access to the land is indeed a problem which can be overcome through acquisition of minimum sufficient land belonging to the Company by the Government is on extraneous consideration and for carving out such a way the land put to productive use by plantation of rubber trees has to be acquired. In other words the plantation area of the appellant will be broken up or split which fact was not considered by the learned single Judge. - D. The learned single Judge ought to have found that no reliance can be placed on Rule 14 of the Assignment of Land (Municipal & Corporation Areas) Rules, 1995 was not in force when Ext.P1 application was submitted. - E. The learned single Judge ought to have found that, the appellant is not in unauthorised occupation of the land and the finding in Ext.P7 that there is voilation of the terms of the Kuthaka Pattam lease is rendered against the finding and observations of the Division Bench judgment of this Hon'ble Court. Even for planting rubber trees in 3.52 acres of land, **W.A.No.2335 of 2015** **8** licence had been obtained by the appellant company. This Hon'ble Court in the judgment in W.A.No.1472 of 1992 has categorically held that the appellant is not a unauthorised occupant of the land. The judgment of the learned single Judge is liable to be set aside by this court. 5. On this day, when the appeal came up for hearing, Mr.E.K.Nandakumar, learned Senior Counsel for the appellant made it clear that he is not arguing the case on merits, but submitted that the subject land is located in the middle of plantation. To reach the subject land, Government have to make a pathway, which will incur expenditure. Appellant would provide an alternate land close to road margin. In such circumstances, the Government would not incur huge expenditure for acquiring land and that the same would be beneficial to the beneficiaries as well. However, no provision has been pointed out to this court for exchange of alternate land. 6. Per contra, taking this court through the provisions of the Kerala Land Assignment Rules, 1964 and the contents of Ext.P7, wherein the Additional Secretary has categorically observed that the said land is in Pathanapuram Taluk, Punalur Municipality, Mr.V.Tekchand, learned Senior Government Pleader submitted that the land falls within Municipality jurisdiction. Ext.P7 order passed by the Additional Secretary, Revenue (U) Department, Thiruvananthapuram (respondent No.3) dated **W.A.No.2335 of 2015** **9** ## 21.12.2006, reads thus: “Government have examined the case in detail with all relevant documents of the case and the reports of the District Collector and Commissioner, Land Revenue and the arguments putforth by the petitioner company. On the basis of the facts examined in this case it is found that the petitioner company had purchased this land from the persons who illegally purchased this land from the original kuthakapattom holder who sold this land which is not permissible under the rules. As per Rule 14 of the Rules for Assignment Land within Municipal and Corporation Areas, 1995, the land held on lease under these rules shall not be alienable under any circumstances. Hence the occupation of this land by the petitioner company is unauthorised, as per the Rules. Since the District Collector has reported that there is no sufficient land available in Kollam District for distribution to landless people and this land is needed for this purpose, it is not advisable to assign this 3.52 Acres of Government land to the illegal possessor. In the circumstances stated above, the request of the petitioner company for assignment of the 3.52 Acres of land illegally possessed by them, is rejected and Government order that the above said 3.52 Acres of land be resumed to Government. The District Collector, Kollam will take further action as ordered above.” 7. Inviting the attention of this court to Rule 1A (Exemption) of the Kerala Land Assignment Rules, 1964, Mr.V.Tekchand, learned Senior Government Pleader submitted that the above said Rules are not applicable to lands situated within the limits of a Corporation, Municipality or Cantonment or within such other areas as Government may, by order **W.A.No.2335 of 2015** **10** specify. He, therefore, submitted that the Kerala Land Assignment Rules, 1964 are inapplicable to the case on hand. Placing reliance on the decision of a Hon'ble Division Bench of this court in **Varkey Abraham v. Secretary to Government** reported in **2007 (3) KLT 702** , learned Government Pleader further added that applications for assignment can be considered only as per the Rules in existence. Issue and short facts in **Varkey Abraham** 's case are as hereunder: “The main question which arises for consideration in this Writ Appeal is whether a person whose family possesses large extent of lands could apply for invoking the powers of the Government under Rule 24 of the Kerala Land Assignment Rules, to assign, in public interest, dispensing with the provisions contained in the Rules, land adjoining his extensive lands and that too, to get assignment of an extent of land more than that could be assigned under the Rules. 2. The petitioner in the Writ Petition (appellant herein) was in possession of 34.97 acres of land. He filed a statement before the Land Board, as required under Section 85 (A)(1) of the Kerala Land Reforms Act. The Land Board transferred the statement to the Taluk Land Board, Meenachil, under Section 85 A (3) of the said Act. The Taluk Land Board, in its proceedings dated 11-9-1976, accepted the return and held that the petitioner was not required to surrender any excess land. He was not required to surrender excess land since an extent of 22.49 acres was under the category exempted for the purpose of computing the ceiling area. 3. It is stated by the petitioner that his father was in possession of 4.35 acres of Government puramboke land. Out of the 4.35 acres of land, an extent of 1.15 acres of land was assigned to the father of the **W.A.No.2335 of 2015** **11** petitioner in Puthuvel Case No. 251 of 1105 M.E. The balance extent of 3.20 acres of Government land is the subject matter of the present case. 4. The petitioner filed Ext. P1 application dated 3-6-1985 under Rules 11(8) and 16 (1) of the Kerala Land Assignment Rules (hereinafter referred to as the `Rules') before the Tahsildar for assignment 3.20 acres of land. It is stated in Exhibit P1 that the petitioner is in possession of 12.48 acres of land other than the Government land. The Tahsildar filed a report to the District Collector, which according to the petitioner was favourable to him. As per Exhibit P2 order dated 22-5-1999, the District Collector, Kottayam, rejected the application holding that the petitioner is in possession of lands in excess of the ceiling limit under the Kerala Land Reforms Act. The petitioner filed Exhibit P5 appeal against that order. The appellate authority, namely, the Commissioner of Land Revenue, Thiruvananthapuram, by his order dated 22-9-2000 (Ext. P6) set aside Ext.P2 order passed by the District Collector, holding that the authority to consider the application is the Tahsildar. The Tahsildar was directed to consider the application. However, it was found in Exhibit P6 order that the family of the petitioner is in possession of 13.05.67 hectares of land. The Tahsildar rejected the application by Exhibit P11 order dated 30-122002, holding that he has no jurisdiction to assign land for the `beneficial enjoyment' and that the maximum extent that could be assigned for beneficial enjoyment under Rule 6 (2) is 25 cents. It is also stated in Exhibit P11 order that major portion of the land is rocky. 5. Ext. P11 order passed by the Tahsildar was challenged by the petitioner before this Court in O.P. No. 6146 of 2003, which was disposed of as per Exhibit P12 judgment dated 11-6-2003, holding thus: “As per Rule 6 (2) the maximum extent prescribed is 25 cents for the assignment of land. However, according to the petitioner, the Government has got ample power to dispense with the extent of land provided under the Rules. It is up to the **W.A.No.2335 of 2015** **12** petitioner to move the Government in this regard. Ext. P11 order cannot be set aside by this court and the remedy, if any, of the petitioner is only to move the Government.” 6. Thereafter, the petitioner moved the Government as per Exhibit P13 representation dated 20-6-2003. The Government rejected the application by Exhibit P15 order dated 22-1-2004. In Exhibit P15 order, reference is made to the report of the District Collector dated 14- 1-2004 wherein he reported that the petitioner is in possession of hectares of land and if the land in question is assigned to him, he would be holding excess lands. It was also reported that the land is not included in the list of assignable lands and that the land is a rocky puramboke. Considering the report of the District Collector, the Government took the view the land cannot be assigned under the Kerala Government Land Assignment Act and Rules. Exhibit P15 order was challenged in the Writ Petition. The learned Single Judge dismissed the writ Petition by the judgment dated 27-5-2005, which is under challenge in this Writ Appeal.” ## 8. Paragraph 10 of **Varkey Abraham** 's case is also relevant, which reads thus: “10. The petitioner contends that the land in question is surrounded by the other lands belonging to him. The case put forward in the Writ Petition and in the Writ Appeal is that for the beneficial enjoyment of other lands belonging to him, the land in question is needed. Exhibit P1 application shows that the land in question is bounded on the north and south by the other properties of the petitioner and on the east and west by lands belonging to strangers. There is no case for the petitioner that he cannot enter into his lands otherwise than through the land sought to be assigned. The petitioner has also not established by any acceptable evidence that the land is indispensably required **W.A.No.2335 of 2015** **13** for beneficial enjoyment of adjoining registered holdings. The authority competent to assign land for beneficial enjoyment shall be the Revenue Divisional Officer (vide: Note (1) to Rule 6). Moreover, Rule 6(2) provides that the extent of Government land that may be assigned on registry when the same is indispensably required for the beneficial enjoyment of adjoining registered holdings shall not exceed, in the case of one registered holding fifteen cents. Rule 6(2) was amended in 2005 and before amendment, the extent that could be assigned was twenty five cents. Assignment for "beneficial enjoyment" is different from assignment for cultivation. A comparison of Rules 5 and 6 would make this position clear. We are of the view that the petitioner has not satisfied the requirement of the definition of "beneficial enjoyment" in Rule 2 (cd) read with Rule 6 (2) of the Rules.”. 9. After considering the provisions of Kerala Municipality Act, 1994, the Kerala Government Land Assignment Act, 1960 and the Rules framed thereunder, the Hon'ble Division Bench at paragraphs 7 and 9 ordered thus: “7. The Kerala Government Land Assignment Act, 1960 (hereinafter referred to as the `Act') was enacted to regulate the assignment of Government lands. Section 3 of the Act provides that Government land may be assigned by the Government or by any prescribed authority either absolutely or subject to such restrictions, limitations and conditions as may be prescribed. Section 4 provides that when any Government land is proposed to be assigned by the prescribed authority, the Tahsildar of the taluk concerned or any officer empowered in that behalf shall notify that such land will be assigned. The Kerala Land Assigned Rules, 1964 were made by the Government in exercise of the powers **W.A.No.2335 of 2015** **14** conferred by Section 7 of the Act. ….................. 9. Rule 5 provides for the maximum extent of land that could be assigned on registry for purposes of personal cultivation, house sites and beneficial enjoyment of adjoining registered holdings. Clause (b) of Rule 5 (1) provides as follows: "(b) in the case of lands held on lease, whether current or time expired or by way of encroachment not considered objectionable, the lessee or the encroacher as the case may be will be eligible for assignment of not more than 50 cents of land, whether wet or dry, in the plains, and one acre of land, whether wet or dry in hilly tracts. Land, if any, held in excess of this area shall be surrendered to Government and no compensation shall be payable for the lands so surrendered." Clauses (b) of Rule 5 was substituted by the amendment which came into force on 3-3-2005. Prior to amendment, clause (b) provided for assignment of larger extents, namely, not more than one acre in the plains and not more than one acre of wet land or three acres of dry land in hilly tracts, if there are no improvements in the land, and where there are improvements effected on the land by the occupant, not more than two acres in the plains and not more than two acres of wet land or four acres of dry land in hilly tracts. It is stated by the petitioner that the land in question is not in hilly tracts. Therefore, the maximum extent that could be assigned, before the amendment of the Rules in 2005, is one acre or two acres, depending on the question whether the petitioner has effected valuable improvements in the land. The amended Rules would apply to **W.A.No.2335 of 2015** **15** any assignment after the amendment, irrespective of the date of application and therefore, the maximum extent that could be assigned to the petitioner, if he is entitled to get assignment, is not more than fifty cents of land.” 10. On the aspect as to whether the petitioner therein was entitled to claim assignment of land to an extent of 3.20 Acres of land, when he is holding large extent of land, after taking note of the priority of assignment as per Rule 7 of the Assignment Rules, the Hon'ble Division Bench, at paragraphs 11, 13 and 15, ordered thus: “11. The next question to be considered is whether the petitioner is entitled to claim assignment of an extent of 3.20 acres and that too when he is holding large extents of land. Exhibit P4 order passed by the Taluk Land Board shows that the petitioner was in possession of 34.97 acres including an extent of 22.49 acres of exempted land. In Exhibit P1 application, the petitioner stated that he was in possession of 12.48 acres. It is an admitted case that his father got assignment of an extent of 1.15 acres of Government land and he gifted that land to the petitioner. Exhibit P6 order passed by the Commissioner of Land Revenue shows that the petitioner and his family members living with him are holding an extent of 13.05.67 hectares (32.27 acres) of land and that his daughter is in possession of 1.04 hectares (2.57 acres) of land. The maximum extent of land that could be assigned to a person under the Rules is 1 acre, after the amendment of the Rules in 2005. Before the amendment, the maximum extent that could be assigned under Rule 5 in the plains was two acres. Rule 5 (2) of the Rules reads as follows: **W.A.No.2335 of 2015** **16** "When a family owns or holds any land over which it has proprietary right or has security of tenure, only the balance of extent of Government land necessary to make up the extent admissible under sub- rule (1) shall be granted to it on registry." ## Explanation (iii) to Rule 5 (2) is as follows: "For the purpose of calculating the extent of land that may be assigned to a family, the total extent of land possessed or held with proprietary right or fixity of tenure by the head of the family and also the members of the family both individually and collectively shall be taken into account. Assignment made in favour of a family under these rules shall, for the purpose of calculating the maximum extent that may be so assigned, include assignment made to members of the family both individually and collectively, the total extent so assigned not exceeding the maximum area that may be assigned to that family. The area under encroachment by a member of a family shall, for the purpose of these rules, be deemed as the area under encroachment by the family." ….................... 13. Rule 7 of the Rules would not be helpful to the petitioner. Rule 7 (1) of the Rules reads as follows: "7. Priority to be observed in assignment:- (1) Where any person is in occupation of Government lands under lease, whether current or time expired, or by way of encroachment not considered objectionable such land if **W.A.No.2335 of 2015** **17** such occupation is before the 1st day of August, 1971, shall be assigned to him on registry: Provided that the total extent of land, if any, owned or held by him in proprietary right or with security of tenure is less than the limits laid down in sub- rule (1) of Rule 5 or the annual family income from sources other than the Government lands held by him is below Rs. 10,000/-" Rule 7(3) is mandatory in nature. It reads thus: "(3) No registry shall be granted to any family in occupation of Government land either under a lease, current or time expired or by way of encroachment, unless it surrenders to Government, without claiming any compensation, the land in excess of the extent proposed to be registered in its favour. If there is excess land, in its possession and it is not willing to surrender the excess land eviction will be resorted to." Since the petitioner holds lands in excess of the limits provided in Rule 5 (1), he cannot claim any priority also. …........................ 15. The various provisions in the Kerala Government Land Assignment Act and the Kerala Land Assignment Rules would unmistakably show that the Act and Rules are intended to protect landless people by assigning to them Governnment lands for cultivation and other purposes. The Act provides for assignment of Government land absolutely or subject to such restrictions, limitations and conditions as may be prescribed. The Rules provides for assignment of lands on registry for purposes of **W.A.No.2335 of 2015** **18** personal cultivation. The Rules also provides for granting assignment of small extents of land for constructing houses and for the beneficial enjoyment of adjoining registered holdings. The Rules contain provisions for extending priority to landless people, members of Scheduled Caste and Scheduled Tribes, Exservicemen, persons disabled in active military service, persons who are dependents of those who are killed or disabled while in active military service, small holders whose family income is less than Rs. 10,000/-, certain category of kumkidars etc. The procedure for assignment is also provided in the Rules. Provision is made for preparing the lists of lands to be reserved for Government or public purposes and the lands to be set apart for assignment on registry. The lists are to be approved by the Government or an authorized authority. The authority to approve the list of lands available for lease or license shall be District Collector. Various authorities are also provided to whom the applications under the different categories are to be submitted. We are of the view that the Act and Rules are not intended for enriching persons who hold extensive lands. Assignment on Registry of Government lands to such persons would defeat the very purpose of the Act and Rules. There is no vested right in any person to claim assignment on registry of Government land. The claim made by the petitioner originated and continued on encroachment. Such a person cannot have any legal right to claim that land. Provision for assignment of lands to encroachers is with a specific purpose. It is intended to protect such of the encroachers who are landless and downtrodden. They too have no vested right to get assignment on registry. The scheme of the Act and the Rules would unmistakably show it. Mighty people do not come anywhere near the benevolent protective umbrella of the Act and Rules. True, a person may desire to annex to his **W.A.No.2335 of 2015** **19** property the neighbouring lands, though it is Government land. Such a desire is not recognised or protected under the Act and Rules.” ## 11. Viewing from the angle as to whether the petitioner therein is entitled to claim benefit under Rule 24 of the Rules, at paragraph 16, the Hon'ble Division Bench ordered thus: “16. Next, we shall consider whether the petitioner can take shelter under Rule 24. Rule 24 reads thus: "24. Notwithstanding anything contained in these rules the Government may, if they consider it necessary so to do in public interest, assign land dispensing with any of the provisions contained in these rules and subject to such conditions, if any, as they may impose." To invoke Rule 24, Government should consider it necessary in public interest to assign land. Public interest is the main ingredient for the application of Rule 24. Public interest is interest of the people at large. The purpose for which land is to be assigned invoking Rule 24 should be one for the benefit the public in any sense of the term. Private interest of an individual to acquire more property could never be termed as public interest. It is relevant to note that Rule 24 empowers the Government to assign land dispensing with any of the provisions of the Rules alone. It does not empower the Government to dispense with any of the provisions of the Act. Section 3 (2) of the Act is relevant in this context. It reads: "(2) No Government land assignable for public purpose may be assigned under sub-section (1) without **W.A.No.2335 of 2015** **20** consulting the local authority as defined in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or the Kerala Municipality Act, 1994 (20 of 1994) as the case may be and if such local authority required such land, for carrying out any of the functions assigned to it, Government may set apart such land for that purpose." We have held that the land in question comes under Rule 11(2) (viii). Such a land cannot be assigned without consulting the local authority. Rule 24, in our view, does not empower the Government to completely do away with the scheme of the Act and Rules and their purpose and intent. Rule 24 could only be exercised in limited sphere and that too adhering to the paramount consideration of public interest. We hold that the petitioner cannot take recourse to Rule 24 as well.” Decision in **Varkey Abraham** 's case is somewhat similar to the facts of this case. 12. In the aforesaid context, learned Government Pleader submitted that inasmuch as the subject land falls within the Municipal area, Assignment of Land Within Municipal and Corporation Areas Rules, 1995 alone is applicable. Inviting the attention of this court to Rule 4(2) of the Assignment of Land Within Municipal and Corporation Areas Rules, 1995, learned Government Pleader further submitted that the maximum extent of land that may be assigned on registry, when such land is indispensably required for the beneficial enjoyment of adjoining registered holdings, shall not exceed 5 cents in the Municipal areas and 3 **W.A.No.2335 of 2015** **21** cents in the Corporation areas. 13. In the case on hand, appellant is in occupation of 3.52 Acres of land. Going by Rule 4(2) of the Assignment of Land within Municipal and Corporation Areas Rules, 1995, assignment cannot be made. Rule 4(2) of the Assignment of Land Within Municipal and Corporation Areas Rules, 1995 reads thus: “4. xxxxxxxxxxxx (2) (a) The maximum extent of land that may be assigned on registry, when such land is indispensably required for the beneficial enjoyment of adjoining registered holdings, shall not exceed 5 cents in the Municipal areas and 3 cents in the Corporation areas. (b) Land value at market rate shall be payable for such assignment of land for beneficial enjoyment.” 14. Section 4 of the Kerala Government Land Assignment Act, 1960 reads thus: ## **4. Procedure to be followed before Government lands are** **assigned** .— (1) When any Government land is proposed to be assigned by the prescribed authority, otherwise than by way of lease or licence, the Tahsildar of the taluk in which the land is situate or any officer empowered by the Government in this behalf shall notify in the prescribed manner that such land will, by public auction or otherwise, be assigned, and call upon those who have got any claim to such land to prefer to him their objections, if any, in writing, within a time which shall be specified in such notification. (2) If any objection is preferred within the time specified in **W.A.No.2335 of 2015** **22** the notification, the Tahsildar or such other officer shall enquire into the same and pass an order in writing either accepting or rejecting the claim in full or in part and intimate in writing the fact of such disposal to the claimant. (3) For the purposes of the enquiry under sub-section (2) the officer making the enquiry shall have all the powers conferred upon the Collectors and Tahsildars by the law for the time being in force regarding summoning of persons for disposal of matters connected with revenue administration. 15. Learned Government Pleader submitted that subject lands are owned by the Government. As per Section 3(1) of the Kerala Government Land Assignment Act, 1960, Government land may be assigned by the Government or by any prescribed authority either absolutely or subject to such restrictions, limitations and conditions as may be prescribed. As per Section 3(2), no Government land assignable for public purpose may be assigned under sub-section (1) without consulting the local authority as defined in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or the Kerala Municipality Act, 1994 (20 of 1994) as the case may be, and if such local authority required such land, for carrying out any of the functions assigned to it, Government may set apart such land for that purpose. 16. During the course of arguments, it was the submission of the learned Senior Counsel for the appellant that though there is a purchase of land from third party, who is a lessee, Government continued to collect **W.A.No.2335 of 2015** **23** rent from the appellant under Rule 5 of the Assignment of Land within Municipal and Corporation Areas Rules, 1995. Rule 5 of the Assignment of Land Within Municipal and Corporation Areas Rules, 1995 reads thus: “ **5. Assignment of land held under lease** .- (1) Land held under lease, either current or time expired, granted under any rules or order in force at the time of such grant and the extent of which does not exceed 5 cents in the Municipal areas and 3 cents in the Corporation areas shall be considered for assignment on registry to the holder on payment of land value at market rate. (2) In the case of land held under an existing lease, lease rent, if any, outstanding against such land should be cleared before issue of lease or assignment on registry. (3) In the case of land held under time expired leases, prohibitory assignment as provided under the Kerala Land Conservancy Act, 1957 (8 of 1958) shall be remitted before filing the application for assignment.” 17. It is the specific case of the appellant that subject lands have been purchased. Ext.P7 order dated 21.12.1996, explaining the same and the writ court has adverted to the facts thoroughly. 18. Going through the material on record, we do not find that the appellant has made out a case, for assignment of land either under the Kerala Land Assignment Rules, 1964 or under the Assignment of Land within Municipal and Corporation Areas Rules, 1995. We do not find any illegality or irregularity in the order of rejection Ext.P7 or in the judgment **24** ## **W.A.No.2335 of 2015** of the writ court. As regards the contention of the appellant that they would offer an alternate land for exchange as stated supra, no provision has been pointed out before this court. Issue is left open. Writ appeal is accordingly dismissed. Sd/- **S.Manikumar, Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** /TRUE COPY/ P.A. TO JUDGE