SIVAN.P v STATE OF KERALA and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **THURSDAY, THE 8TH DAY OF SEPTEMBER 2016/17TH BHADRA, 1938** ## **WP(C).No. 25215 of 2010 (B)** ## **--------------------------------------------** **PETITIONER(S) :** **--------------------------** **SIVAN.P, S/O.PAZHANISWAMY, NELLIMEDU, KUNNIMARI P.O., CHITTUR TALUK, PALAKKAD-678 534.** ## **BY ADV. SRI.KALEESWARAM RAJ** **RESPONDENT(S) :** - **---------------------------1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM.** - **2. THE DISTRICT COLLECTOR, PALAKKAD.** - **3. THE TAHSILDAR, TALUK OFFICE, CHITTUR.** **BY SPL. GOVERNMENT PLEADER SRI. V.K.PRAKASH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 25215 of 2010 (B)** **--------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **EXHIBIT P1: TRUE COPY OF THE REPRESENTATION DATED 28.12.2009 FILED BY SRI. ARUCHAMY BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P2: TRUE COPY OF THE NOTICE DATED 28.12.2009 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P3: TRUE COPY OF THE REPRESENTATION DATED 18.01.2010.** - **EXHIBIT P4: TRUE COPY OF THE LIST OF TRIBALS.** - **EXHIBIT P5: TRUE COPY OF THE LIST OF APPLICANTS WHICH SMALL HOLDERS WHO APPLIED FOR ALLOTMENT LANDS.** - **EXHIBIT P6: TRUE COPY OF THE REPLY DATED 17.05.2010.** - **EXHIBIT P7: TRUE COPY OF THE AGREEMENT.** - **EXHIBIT P8: TRUE COPY OF THE JUDGMENT DATED 01.02.2006 IN O.P.NO. 20869/2000.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** ## **//TRUE COPY//** ## **P.A.TO JUDGE.** Msd. ## **P.V.ASHA J.** ## **--------------------------------------------** ## **W.P.(C) No.25215 of 2010** **---------------------------------------------** Dated this the 8[th ] day of September, 2016 ## **J U D G M E N T** Petitioner is an Adivasi. His grievance is over the inaction of Govt. to assign land to the adivasis like him. According to him several persons including himself belonging to tribal groups in Palakkad District, do not own any land. In Perumatty Panchayat itself, there are about 28 Adivasi colonies, in which several tribals who do not have any land are residing. The huts constructed by them were demolished by the police alleging encroachment of Govt. land. Producing various representations including Ext.P1 submitted on 28.12.2009, the petitioner submits that Government or any of the respondents are not taking any effective action to provide them land despite the judgment of the Apex Court as well as the provisions contained in the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999 (Act 12 of 1999). Petitioner has produced Ext.P2 letter of the Tahsildar, Chittur informing him that steps would be taken **W.P.(C) No.25215 of 2010** 2 to allot land within a period of two months from the date of receipt of applications from eligible tribals who are residing in huts encroaching Government land. This letter indicates that the tribals who had encroached Government land and had been residing in the huts constructed in the said land were evicted with the help of police and a consensus was arrived at in a meeting in presence of the Sub Inspector of Police, the tribals, as well as the local leaders. Petitioner has also produced Ext.P3 representation submitted on 18.01.2010 before the District Collector, for the residents of Ward No.14 of Perumatty Panchayat detailing the plight of hundreds of landless Adivasis and requesting to take steps to assign them land, pointing out that there is sufficient land within the respective Panchayaths available for assignment to them. Ext.P4 list contains the names of 87 persons who have submitted applications claiming to be landless tribals. Seeing that no effective action was being taken, even after calling for applications and giving assurance to assign land, applications were submitted under the Right **W.P.(C) No.25215 of 2010** 3 to Information Act and the Public Information Officer of the Office of the Deputy Collector (LR) informed that about 700 applications were received for assignment of land from the tribals and all those applications were forwarded to the Revenue Divisional Officer, Palakkad and the RDO had informed that appropriate steps for assignment of land would be taken as and when the land is available. 2. Petitioner relies on Ext.P8 judgment of this Court in O.P. No.20869 of 2000 dated 01.02.2006 wherein this Court directed the first respondent to take appropriate follow-up action for implementing the resolutions taken in the meeting held on 16.10.2001 by the Chief Minister with the leaders of tribals. The first resolution therein was that each of the families of tribals would be assigned land having an extent of not less than 5 Acres, in the case of those who were residing in project areas and not less than one acre in the case of others and such assignment would be started from 1[st] January, 2002 onwards. Petitioner submits that despite these assurances and directions, the persons like petitioner continue to be 4 ## **W.P.(C) No.25215 of 2010** landless as no follow up action was taken either in terms of the judgment or in terms of the provisions contained in the Act. Petitioner has explained that in the Palakkad District itself there are 6 Panchayaths in which tribals are residing i.e., Perumatty, Pattanchery, Kozhinjanpara, Vadakarapathy, Eruthempathy and Nellepally. 3. The 3[rd] respondent has filed a counter affidavit stating that 797 applications were received from landless tribals for assignment of land. It is stated that the Tahsildar, Chittur had evicted some tribals of Chittur Taluk on 25.12.2009, who had encroached irrigation poramboke lands and in the discussion in the meeting convened in the presence of the Tahsildar, Chittur, Sub Inspector of Police, Chittur, tribal people and representatives of people, the concerned tribals were to submit proper applications for assignment of land, so that steps can be taken within a period of two months. It is further stated that 797 applications were received in this connection and those applications were forwarded to the Revenue Divisional Office, Palakkad on 21.07.2010. As 750 Acres of 5 ## **W.P.(C) No.25215 of 2010** land was required for distribution to the applicants, and the same was not available in Chittur Taluk, the matter was reported to the Revenue Divisional Officer, Palakkad for further action. 4. The Tahsildar who has filed the counter affidavit states that necessary action was taken in time and it was for the higher authorities to take up the matter further and orders were awaited at Government level. This counter affidavit was filed as early as on 19.06.2012. 5. Learned counsel for the petitioner submits that the situation continues to be the same. Learned Special Government Pleader pointed out the scarcity of land for assignment. 6. I heard Sri.Kaleeswaram Raj, the learned counsel for the petitioner, who referring to the judgment of the Apex Court in **State of Kerala v. Peoples Union for Civil Liberties** [(2009) 8 SCC 46] and the provisions contained in the Act pointed out the mandatory requirement to provide land to the landless Adivasis. It is pertinent to note that while upholding the Act 12 of 1999, **W.P.(C) No.25215 of 2010** 6 the Apex Court in **State of Kerala v. Peoples Union for Civil Liberties** (supra) considered the issue regarding the non-availability of land in paragraphs 119 to 121. The observations contained in paragraphs 120 and 121 are relevant which read as follows: “120. Keeping in view the promises made by the 1999 Act, it is obligatory on the part of the State to provide the land meant for the members of the Scheduled Tribes. If they do not have sufficient land, they may have to take recourse to the acquisition proceedings but we are clear in our mind that the State in all situations will fulfil its legislative promise failing which the persons aggrieved would be to take recourse to such remedies which are available to them in law. 121. We must also make it clear that while allotting land to the members of the Scheduled Tribes, the State cannot and must not allot them hilly or other types of lands which are not at all fit for agricultural purposes. The lands, which are to be allotted, must be similar in nature to the land possessed by the members of the Scheduled Tribes. If in the past, such allotments have been made, as has been contended before us by the learned counsel for the respondent, the State must allot them other lands which are fit for agricultural purposes. Such a process should be undertaken and completed as expeditiously as possible and preferably within a period of six months from date.” ## 7. Moreover, it is pertinent to note that Section 10 **W.P.(C) No.25215 of 2010** 7 of the Act 12 of 1999 provides that Government shall assign land to the landless families of the Scheduled Tribes in the State, an extent not exceeding forty Ares of land in the District they reside within a period of two years from the date of publication of this Act in the Gazette, or such further period as may be specified by Government by notification in the Gazette, and in the manner as may be prescribed. Even though the judgment of the Apex Court came as early as on 21.07.2009, the Government has not taken any effective steps except obtaining certain applications after giving certain assurances to the landless people. 8. It is unfortunate that the provisions contained in the Act are not being implemented in its true spirit and intent of the Act. The petitioner submits that several of the persons are deprived of their land and Government has not taken any steps to rehabilitate them or to assign them land. When there are provisions for assignment, allotment, replacement, etc., under various provisions of the Act, the Government cannot just ignore those **W.P.(C) No.25215 of 2010** 8 provisions saying that there is no land available. The Apex Court directed that the land available should be of use to the Adivasis and no hilly lands unfit for agricultural purposes shall be given. It is therefore, the duty of the Government to see that the provisions contained in the Act are implemented in the light of the directions contained in the judgment of the Apex Court in its true spirit and intent. While implementing these provisions Government shall also see that the land reaches the real beneficiaries and that the tribals are not further exploited by denial of land and under the guise of assignments/allotment of land. It is high time that the Government formulate the guidelines for assignment of the land to the needy hands. When there are 797 applications, Government cannot shut its eyes over the provisions contained in the Act and to deny the benefit of the provisions contained in the Act saying that there is no land available. When the Apex Court itself observed that it is open to the Government to acquire land and to assign the same to the needy persons, at least in a time frame, 9 ## **W.P.(C) No.25215 of 2010** Government could have started the process of allotment/assignment in the meantime. It is pertinent to note that the Government did not file any counter affidavit in this writ petition, though it has been pending since 2010. 9. In the above circumstances, there will be a direction to the first respondent to take immediate steps to allot and assign land to the eligible tribals in terms of Exts.P4 and P5, after ensuring that land reaches the real and needy among the tribals. The proceedings for allotment shall commence at the earliest, at any rate, within a period of two months from the date of receipt of a copy of the judgment. Writ petition is disposed of accordingly. Sd/- **P.V.ASHA, JUDGE.** AS