Sheeba Vijayan (deceased) and others v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 13[TH] DAY OF JANUARY 2022 / 23RD POUSHA, 1943`** ## **`WP(C) NO. 14539 OF 2018`** ## **`PETITIONERS:`** - `1 SHEEBA VIJAYAN, (DECEASED), AGED 44 YEARS W/O VIJAYAN, NEW COLONY, PALARIVATTOM P O, EDAPPALLY SOUTH VILLAGE, ERNAKULAM, PIN-682025.` - `2 ADDL. P2. VIJAYAN, AGED 49 YEARS, S/O KUNJACHAN P, NEW COLONY, PALARIVATTOM P.O., EDAPPALLY SOUTH VILLAGE, ERNAKULAM.` - `3 ADDL. P3. SARANYA VIJAYAN, AGED 26 YEARS, D/O VIJAYAN, NEW COLONY, PALARIVATTOM P.O., EDAPPALLY SOUTH VILLAGE, ERNAKULAM.` - `4 ADDL. P4. VIVEK CHAKRAVATHY, AGED 24 YEARS S/O VIJAYAN, NEW COLONY, PALARIVATTOM P.O., EDAPPALLY SOUTH VILLAGE, ERNAKULAM.` ``` (THE LEGAL HEIRS OF DECEASED SOLE PETITIONER ARE IMPLEADED AS ADDITIONAL PETITIONERS 2 TO 4 AS PER THE ORDER DATED 17/10/2018 IN IA.01/2018) ``` ``` BY ADVS. SRI.K.S.MADHUSOODANAN SMT.S.JESSIN SRI.K.S.MIZVER SRI.P.K.RAKESH KUMAR SRI.M.M.VINOD KUMAR ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF SCHEDULED CASTES AND SCHEDULED TRIBES DEVELOPMENT, SECRETARIAT, THIRUVANANTHAPURAM-PIN-695001.` - `2 DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM, PIN-682030.` - `3 THASILDAR, KANAYANNUR TALUK OFFICE, ERNAKULAM DISTRICT, PIN-682011.` - `4 VILLAGE OFFICER, EDAPPALLY SOUTH VILLAGE OFFICE, ERNAKULAM, PIN-682024.` WPC 14539/18 2 - `5 THE TRIBAL DEVELOPMENT OFFICER, TRIBAL DEVELOPMENT OFFICE, MINI CIVIL STATION, MUDAVOOR PO, MUVATTUPUZHA, PIN-686669.` - `6 ADDL. R6. STATE OF KERALA, REPRESENTED BY ITSSECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.` - `7 ADDL. R7. CORPORATION OF COCHIN, ERNAKULAM - 682011, REPRESENTED BY ITS SECRETARY.` ``` (ADDITIONAL R6 AND R7 ARE IMPLEADED AS PER ORDER DATED 05/02/2019 IN IA 01/2019.) ``` ``` BY ADVS. ``` ``` GOVERNMENT PLEADER SRI.RAAJESH S.SUBRAHMANIAN,SC,COCHIN CO SRI.R.HARISHANKAR ``` ``` SMT. LATHA THANKAPPAN - SPL. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC 14539/18 3 ## **`JUDGMENT`** The petitioners impugn Ext.P17 order issued by the Government on various grounds, but primarily that it has followed a Rule which is not applicable to them. 2. Sri.M.M.Vinod Kumar – learned counsel for the petitioner, pointed out that Ext.P17 was issued purportedly in compliance of the directions of this Court in Ext.P16, but that it is recorded therein that his clients are not entitled to assignment under Rule 7(2) of the Kerala Land Assignment Rules, 1964 (hereinafter referred to as ‘the Rules’ for short); while the proper Rule to have been adopted was Rule 7(1) thereof. He further argued that the provisions of the Kerala Assignment of Government Land to the Scheduled Tribes Rules, 2001, would also be attracated in the case of his clients - they being members of Scheduled Tribe - but that in Ext.P17 none of the germane or relevant factors have been considered, thus rejecting their claim merely saying that their annual income exceeds Rs.1 Lakh. He, WPC 14539/18 4 therefore, prayed that Ext.P17 be set aside and the Government be directed to reconsider the matter strictly in terms of the afore provisions. 3. Pertinently, Sri.M.M.Vinod Kumar, thereafter, submitted that the original petitioner, Smt.Sheeba Vijayan, is no more and that it is her husband and children who are now claiming assignment. He argued that, therefore, the reason stated in Ext.P17 that the annual income of Smt.Sheeba Vijayan was in excess of Rs.1 Lakh is without any basis, because the authorities appear to have taken into account the fact that her husband was earning from some employment, but that this would be of no relevance because it was her entitlement which was to be considered. 4. The afore submissions of Sri.M.M.Vinod Kumar was answered by Smt.Latha Thankappan – learned Special Government Pleader, saying that even though Ext.P17 refers to a wrong Rule, the reasons why the original petitioner late Sheeba Vijayan, WPC 14539/18 5 cannot be granted any assignment has been stated in detail in the counter affidavit filed by her clients. She showed me that, as per the averments therein, late Sheeba Vijayan and her family had been allotted land earlier but that the same had been alienated and that her father is still in possession of large extents of land, to which she is also one of the legal heirs. 5. Even when I hear the learned Special Government Pleader as afore, the law has been well settled through the judgment of the Honourable Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner [1978(1) SCC 405] that an order can be supported only on the strength of its contents and not on the basis of subsequent pleadings and documents. 6. In that perspective, when one examines Ext.P17, it can certainly not find favour in law; and this is, to a pointed question, admitted to even by Smt.Latha Thankappan. 7. That said, however, I am afraid that this Court cannot grant relief to the petitioners affirmatively at this time, because WPC 14539/18 6 the counter affidavit of the official respondents have certain crucial averments which cannot be completely disregarded. 8. I am, therefore, of the firm view that the matter will have to be reconsidered by the competent Authority leading to a fresh order, however, adverting to the aforementioned provisions and not to Rule 7(2) of the Rules. It has also to be kept in mind by the competent Authority that proviso to Rule 7(1) has been amended, taking away the income criteria therein, so that the application of late Smt.Sheeba Vijayan cannot be rejected for the reasons that have been recorded in Ext.P17. 9. I, however, clarify that every other germane and relevant input will be kept in mind while further orders are issued, including the averments in the counter affidavit of the official respondents, but after affording necessary opportunity being afforded to the legal heirs of late Sheeba Vijayan during the enquiry. 10. The afore exercise shall be completed by the competent WPC 14539/18 7 Authorities as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. This Writ Petition is thus ordered. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN JUDGE ``` WPC 14539/18 8 ## **`APPENDIX OF WP(C) 14539/2018`** - `PETITIONER EXHIBITS EXHIBIT P1 PHOTOGRAPH SHOWING THE HOMESTEAD OF THE PETITIONER.` - `EXHIBIT P2 PROPERTY TAX RECEIPT DATED 16.01.2007. EXHIBIT P2(A) PROPERTY TAX RECEIPT DATED 23.11.2016. EXHIBIT P3 PHOTO COPY OF THE CERTIFICATE ISSUED BY THE ASSISTANT ENGINEER, KSEB PALARIVATTOM DATED 4.10.2002.` - `EXHIBIT P4 PHOTOCOPY OF THE IDENTITY CARD ISSUED BY THE COCHIN CORPORATION.` - `EXHIBIT P5 PHOTOCOPY OF THE RATION CARD NO.1732071785.` - `EXHIBIT P6 PHOTOCOPY OF THE APPLICATION FOR LAND ASSIGNMENT.` - `EXHIBIT P7 PHOTOCOPY OF THE REPORT OF THE 4TH RESPONDENT DATED 15.11.2006.` - `EXHIBIT P7(A) PHOTOCOPY OF THE MAHASAR OF THE 4TH RESPONDENT DATED 15.11.2006.` - `EXHIBIT P8 PHOTOCOPY OF THE APPLICATION FOR LAND ASSIGNMENT SUBMITTED BEFORE THE 5TH RESPONDENT DATED 22.9.06.` - `EXHIBIT P9 PHOTOCOPY OF THE LIST OF BENEFICIARIES OF BSUP HOUSING SCHEME.` - `EXHIBIT P10 PHOTOCOPY OF THE REPORT OF THE 4TH RESPONDENT DATED 22.4.2008.` - `EXHIBIT P11 PHOTOCOPY OF THE COMPLAINT DATED 3.10.2002 TO MINISTER, SC & ST DEPARTMENT.` - `EXHIBIT P12 PHOTOCOPY OF THE JUDGMENT OF HON'BLE HIGH COURT OF KERALA DATED 19.3.2012 IN WPC 7039/07.` - `EXHIBIT P13 PHOTOCOPY OF THE REPRESENTATION DATED 16.4.2012.` - `EXHIBIT P14 PHOTOCOPY OF THE REPORT OF ADDITIONAL TAHSILDAR KANAYANNUR DATED 25.5.2012.` - `EXHIBIT P15 PHOTOCOPY OF THE APPLICATION DATED 14.11.2012 FILED UNDER RIGHT TO INFORMATION ACT.` - `EXHIBIT P15(A) PHOTOCOPY OF THE REPLY DATED 4.12.2012 GIVEN UNDER RIGHT TO INFORMATION ACT.` WPC 14539/18 9 ``` EXHIBIT P16PHOTOCOPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA DATED 27.3.2017. EXHIBIT P17PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DATED 9.10.2017. EXHIBIT P18PHOTOCOPY OF THE REPORT OF THE 4TH RESPONDENT DATED 7.11.2017. EXHIBIT P18(A)PHOTOCOPY OF THE MAHAZAR DATED 7.11.2017 OF THE 4TH RESPONDENT. EXHIBIT P19PHOTOCOPY OF THE LETTER NO.13274/17 DATED 27.11.2017 OF THE 2ND RESPONDENT. RESPONDENT EXHIBITS EXHIBIT R1 (A)TRUE COPY OF THE JUDGMENT DATED 27/03/2008 IN WPC NO.15709/2008. EXHIBIT R1 (B)TRUE COPY OF THE GOVERNMENT ORDER DATED 27/08/2012. EXHIBIT R1 (C)TRUE COPY OF THE NOTICE NO.B4097/05(2) DATED 18/12/2006 ISSUED BY THE TRIBAL DEVELOPMENT OFFICER, MUVATTUPUZHA. EXHIBIT R1 (D)TRUE COPY OF THE RELEVANT PAGES OF THE REVENUE GUIDE ISSUED BY THE GOVERNMENT. EXHIBIT R1 (E)TRUE COPY OF THE GO (P) NO.41/2002/SCSTDD DATED 20/07/2002. EXHIBIT R1 (F)TRUE COPY OF THE GO(MS) NO.23/2010/SCSTDD DATED 24/02/2010. EXHIBIT R1 (G)TRUE COPY OF THE GO (MS) NO.106/2010/SCSTDD DATED 08/10/2010. ```