Sadanandan & Others v. State of Kerala & Others; Ponnamma v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945** ## **WP(C) NO. 34599 OF 2007** ## **PETITIONER/S:** 1 SADANANDAN, S/O.ANKAN PADMANABHAN MALIYEKKAL HOUSE, KALLARA P.O., KOTTAYAM. 2 RAJAMMA, KUNNEL HOUSE, KALLARA P.O. KOTTAYAM. 3 PRASOBHINI, KOCHATHU HOUSE, KALLARA P.O KOTTAYAM. BY ADV SRI.V.K.SUNIL ## **RESPONDENT/S:** 1 STATE OF KERALA, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2 THE DISTRICT COLLECTOR, KOTTAYAM. 3 THE REVENUE DIVISIONAL OFFICER, PALAI 4 THE TAHSILDAR, VAIKOM, KOTTAYAM. BY ADV GOVERNMENT PLEADER ## **OTHER PRESENT:** GP- SRI. JUSTIN JACOB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.03.2023, ALONG WITH WP(C).34572/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.34599 & 34572/2007 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 WP(C) NO. 34572 OF 2007** ## **PETITIONER/S:** PONNAMMA VISWAN, EDATTU HOUSE, KALLARA P.O., KOTTAYAM. BY ADV SRI.V.K.SUNIL ## **RESPONDENT/S:** 1 STATE OF KERALA DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT,, THIRUVANANTHAPURAM. 2 THE DISTRICT COLLECTOR KOTTAYAM. 3 THE REVENUE DIVISIONAL OFFICER PALAI. 4 THE TAHSILDAR, VAIKOM, KOTTAYAM. GP- SRI. JUSTIN JACOB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.03.2023, ALONG WITH WP(C).34599/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.34599 & 34572/2007 3 ## J U D G M E N T ## [WP(C) Nos.34599/2007, 34572/2007] This order of mine shall dispose of two writ petitions, namely WP(C) No.34599/2007 (Sadanandan & Others v. State of Kerala & Others) and WP(C) No.34572/2007 (Ponnamma v. State of Kerala & Others), wherein the very same orders of the District Collector dated 27.01.1987 rejecting the pattas issued in favour of the petitioners and that of the appellate authority dated 07.07.2007 dismissing the appeal against the order of the District Collector, are under challenge. Since common questions of facts and law arose, these writ petitions together are being heard and disposed of. 2. The predecessor in interest of the petitioners in WP(C) No.34599/2007 purchased certain extent of lands, i.e. 50 cents, 50 cents and 49.50 cents, respectively, comprised in survey no.27/3/4 of Manjoor Village in the year 1994 vide sale deed No.2898/74 of Kaduthuruthy SRO, while the petitioner in WP(C) No.34572/2007, along with her deceased husband, purchased 90 cents of land in survey WP(C) Nos.34599 & 34572/2007 4 No.27/3/4 of Manjoor Village vide sale deed No.905/1974. All those properties originally belonged to one Joseph Joseph, Pulinkiyil House, Manjoor Village. Various parcels of land at the hands of Joseph Joseph were found to be in surplus and as per the provisions of the Kerala Land Assignment Rules, 1964 (“the Rules”, for short) and other land assignment laws, the lands in possession of the petitioners were assigned by way of lease/pattas. The petitioners were cultivating in the aforementioned properties and while so, they received a show cause notice with regard to holding of the land in excess of the ceiling limit provided under the Rules. Even though they filed written objections, the District Collector cancelled the lease/pattas, against which they preferred appeals/representations before the first respondent, which also ended in dismissal as per order dated 07.07.2007. 3. Learned counsel appearing for the petitioners submitted that the entire exercise at the hands of the competent authority and that of the appellate authority is wholly aberrative and fallacious, much less arbitrary and capricious, for, before assignment an enquiry as envisaged under Rule 12 of the Rules is WP(C) Nos.34599 & 34572/2007 5 required to be conducted. It was only thereafter that the lease was ordered in favour of the petitioners. There is no reference to the enquiry alleged to have been conducted before the allotment of the lands by way of lease. Even the objections of the petitioners were not noticed in the impugned orders. Nor they were based upon any enquiry or a report from the competent authority with regard to holding of excess land than the limit prescribed under the Rules. Thus the powers under Rule 8 of the Rules could not have been exercised in the manner as aforementioned. Having found no other alternative remedy, they approached this Court and this Court protected the possession of the lands by the petitioners by passing interim orders in both these writ petitions. 4. On the other hand, Mr.Justin Jacob, the learned Government Pleader appearing on behalf of the respondents/State submitted that the provisions of the Rules do not permit the assignees to part with the properties allotted under pattas. It is one of the grounds of cancellation. Sufficient opportunities were given. But the petitioners failed to place on record materials to substantiate their case. Therefore, the impugned orders are wholly justified WP(C) Nos.34599 & 34572/2007 6 and legal and cannot be interfered with. 5. I have heard the learned counsel for the parties and perused the paper book. 6. Rules 12 and 8 of the Rules read as under : - “8. Conditions of assignment on registry. (1) Lands, granted on registry shall be heritable and alienable. (1A) Notwithstanding anything contained in subrule (1), the land assigned on registry as per sub-rule (1) of Rule 7 shall be heritable and alienable. (lA) Notwithstanding anything contained in subrule (1), unoccupied lands assigned on registry shall be heritable but not alienable for a period of twelve years from the date of assignment on registry. Provided that the assignee may mortgage such lands to the Government banks, financial institutions Rubber Board and Tea Board as security for obtaining loans for housing, agricultural or land improvement purposes. (2) The assignee or a member of his family or his successor-in-interest shall reside in the land if it is granted as house site, or shall personally cultivate the same if it is granted for cultivation; and such residence or cultivation, as the case may be, shall commence effectively within a period of one year, from the date of receipt of the patta or of the provisional patta in cases where a provisional patta is issued in the first instance: Provided that- WP(C) Nos.34599 & 34572/2007 7 (i) in the cases of assignment to military personnel or their dependents as the case may be, the assignee may cultivate the land by his own labourer or by the labour of any member of his family and with the occasional assistance, if any, of hired labour or servants on wages payable in cash or in kind but not in crop share; (ii) the military personnel may apply for land anywhere in the State irrespective of the State to which they belong; and in the matter of assignment preference shall be given to persons belong to Kerala; (iii) the military personnel may lease for cultivation purposes the lands assigned to them whilst they are away on active services. (3) The registry shall be liable to be cancelled for contravention of the provisions in sub-rule (1) or sub-rule (2). The registry may be cancelled also, if it is found that it was grossly inequitable or was made under a mistake of facts or owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure. In the event of cancellation of the registry, the assignee shall not be entitled to compensation for any improvements he may have made on the land. The authority competent to order such cancellation shall be the authority which granted the registry, or one superior to it; Provided the no registry of land shall be cancelled without giving the party or parties affected thereby, a reasonable opportunity of being heard: WP(C) Nos.34599 & 34572/2007 8 Provided further that no assignment of Land shall be cancelled if the annual family income of the transferee occupant does not exceed Rs.10,000 (Rupees Ten thousand only) and who does not own or possess any landed property, anywhere in the State; Provided also that in the case of a transfer of Land covered by the above proviso the assignee shall not be eligible for further assignment of Land anywhere in the State].” “12. Enquiry to be held. -(1) Before considering an application for assigning the land, the Tahsildar shall publish a notice under his signature inviting objections in writing from interested persons to the registry of land. The notice shall be in the form in Appendix V to these rules and give a minimum of fifteen days' time from the date of publication for preferring objections and the Tahsildar may, in his discretion admit objections received after that period. The notice shall be published by affixture in a conspicuous place in the land concerned and also in the Village Panchayat and Taluk offices and such publication shall be deemed to be legal and sufficient for purposes of these rules. (2) Application by persons in possession for the assignment of land involved in Kuthakapattam and Land Conservancy cases may be disposed of by the Tahsildar, if the applicants are eligible to get the land onassignment under these rules and if there is no pronounced disparity regarding the particulars of the land as furnished in the case of records and as found in actual occupation. WP(C) Nos.34599 & 34572/2007 9 (3) The list of assignable lands and the list of lands to be reserved for Government or public purposes are to be placed before the Taluk Land Assignment Committee for its recommendation and to be forwarded to the District Collector for approval. The application received for assignment on registry shall be duly enquired into by the Tahsildar and placed before the Taluk Land Assignment Committee for considering its merits. The reasons for rejection, if any, should be recorded in writing, In cases where the orders of the District Collector have to be obtained, the Tahsildar shall submit the case to the District Collector along with the recommendation of the Taluk Land Assignment Committee. (4) On receipt of application for the assignment of lands under clause (iii) of the proviso to sub-rule (3) of rule 5, the District Collector shall as far as may be, follow the procedure laid down in sub-rules (1), (2) and (3) and, if he is satisfied that it is in public interest so to do, he shall assign such excess lands as admissible under these rules.” 7. No doubt Rule 8(3) of the Rules empowers the competent authority to cancel the lease deed, if it is found to have been alienated in view of the specific bar contained in the terms and conditions of the lease deed. But the question which is posed before this Court for adjudication is as to whether the authorities at the helm of affairs conducted a previous enquiry to find out that the petitioners were WP(C) Nos.34599 & 34572/2007 10 not in possession of the land in excess of the ceiling limit before allotment of the pattas. No fresh enquiry was conducted or presumed to have been done to form a different opinion than the previous enquiry, as contemplated under Rule 12 of the Rules. Therefore, the impugned orders of the District Collector and the appellate authority are not in conformity with the provisions of the Rules. The possession of the land by the petitioners has been protected vide the aforesaid interim orders granted in these writ petitions. In view of the findings above, question posed is answered in affirmative. These writ petitions are allowed. Respondents are at liberty to hold enqiry in terms of the provisions of Section 12 of the Rules for the purpose of taking action against the petitioners, in accordance with law. Till such time, interim orders of this Court shall continue. Sd/- AMIT RAWAL JUDGE jg WP(C) Nos.34599 & 34572/2007 11 ## **APPENDIX OF WP(C) 34599/2007** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE PATTA ISSUED TO THE 1[st] PETITIONER'S FATHER - EXHIBIT P2 TRUE COPY OF THE PATTA ISSUED TO THE 2ND PETITIONER - EXHIBIT P3 TRUE COPY OF THE PATTA ISSUED TO THE 3RD PETITIONER - EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.2.1984 - EXHIBIT P5 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.2.1984 - EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE 3RD PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.2.1984 - EXHIBIT P7 TRUE COPY OF HTE PROCEEDINGS OF THE 2ND RESPONDENT NO.E5.37873/81 DATED 27.1.1987. - EXHIBIT P8 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT DATED 10.10.1995 - EXHIBIT P9 TRUE COPY OF LETTER NO.68704/N2/94/RD DATED 23.11.1995 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT - EXHIBIT P10 TRUE COPY OF THE JUDGMENT OF THIS COURT IN OP NO.18626/1996 DATED 31.8.2005. - EXHIBIT P11 TRUE COPY OF ORDER NO.GO(RT) 2745/07/RD DATED 7.7.2007 ISSUED BY R1 WP(C) Nos.34599 & 34572/2007 **==> picture [14 x 9] intentionally omitted <==** EXHIBIT P12 TRUE COPY OF LETTER NO.B1-1065/06 DATED 23.10.2007 ISSUED BY R4 WP(C) Nos.34599 & 34572/2007 13 ## **APPENDIX OF WP(C) 34572/2007** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PATTA ISSUED TO THE PETITIONER - EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.2.1984 - EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT NOE5.37873/81 DATED 27.1.1987 - EXHIBIT P4 TRUE COPY OF THE REPRESENTATION FILED BY THE PETIIIONER AND OTHERS BEFORE THE 2ST RESPONDENT DATED 10.10.1995 - EXHIBIT P5 TRUE COPY OF THE LETTER NO 68704/N2/94/RD DATED 23.11.1995 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT - EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN O.P.NO.18626/1996 DATED 31.8.2005 - EXHIBIT P7 TRUE COPY OF THE ORDER NO G..O(RT)2745/07RD DATED 7.7.2007 ISSUED BY THE 1ST RESPONDENT - EXHIBIT P8 TRUE COPY OF THE LETTER NO B1-1065/06 DATED 23.10.2007 ISSUED BY THE 4TH RESPONDENT