State of Kerala represented by Principal Secretary, Revenue Department, Government Secretariat, Thiruvananthapuram & The District Collector, Kottayam v. The Manager, St. Thomas College, Pala & The Pala Municipality

1 WA 516/23 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.V.N.BHATTI`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 11[TH] DAY OF JULY 2023 / 20TH ASHADHA, 1945 WA NO. 516 OF 2023 ``` ``` WP(C) 19818/2020 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/S:`** ``` 1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001 2 THE DISTRICT COLLECTOR, KOTTAYAM COLLECTORATE, KOTTAYAM., PIN - 686001 BY ADVS. SHRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL() ``` ## **`RESPONDENT/S:`** ``` 1 THE MANAGER ST. THOMAS COLLEGE, PALA P.O., KOTTAYAM., PIN - 686575 2 THE PALA MUNICIPALITY REPRESENTED BY ITS SECRETARY PALA PO., PIN - 686575 ``` ``` BY ADV K.I.MAYANKUTTY MATHER ``` ## **`OTHER PRESENT:`** ``` SPL GP JAFER KHAN ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 3.07.2023, THE COURT ON 11.7.2023 DELIVERED THE FOLLOWING: ``` 2 WA 516/23 ## JUDGMENT (Dated this the 11[th] day of July 2023) ## Basant Balaji J., Aggrieved by the judgment of the learned Single Judge in WP© No.19818 of 2020, respondents Nos.1 and 2 filed this Writ Appeal. The 1[st] respondent was the petitioner. The Writ Petitioner is the Manager of an aided college established in 1950. In 1960, the college had done some expansion, and the petitioner acquired additional properties before 1960. A small strip of pathway used by the owners of properties from whom the petitioner purchased the property was also included with the petitioner’s properties. The pathway held by the previous owners got vested with the petitioner before 1960 and it became the private land of the petitioner. The petitioner holds 1084.7 Ares of property in Sy. Nos. 3/5 and 3/6 in Block No.80 of Puliyanoor village and are paying tax for the same. A 3 WA 516/23 compound wall surrounds the entire property and the portion of the pathway is now converted into a swimming pool of the college, which was constructed in 1957. 2. Due to a mistake on the part of the Revenue Department, though the pathway is not in existence and is part of the entire property of the petitioner, it is shown as the public pathway in resurvey records. On coming to know about the mistake of the resurvey records in 2015, the petitioner filed an application dated 16.2.2015 for assignment of the land. Acting on the said application, Ext.P4 order dated 15.9.2015 was passed whereby 17.5 cents of land described as a public pathway in resurvey records was directed to be assigned in the petitioner’s name. The 3[rd] respondent Municipality expressed its consent through Ext.P5 for the assignment of 17.5 cents. Since there was a delay in the assignment of the land even after Ext.P4 order, the petitioner approached this court by filing W.P.(C) No.33335 of 2018. This court, by judgment dated 4 WA 516/23 ## 18.3.2019, disposed of the Writ Petition as follows: “Therefore, there shall be a direction to the District Collector to conclude the proceedings for assignment in the light of Ext. P4 Government Order within a period of two months without insisting production of Non objection Certificate from the Director of Local Self Government Institution. The writ petition is disposed of as above.” 3. A review petition was filed by the 1[st] respondent in the above mentioned Writ Petition, but this court did not entertain the review. At the same time, the review was dismissed with the ## following observation. “This Court need to review the judgment only if there is any apparent error in the judgment. If any ground is to the Government to review its own order, produced as Ext.P4, it is upto the Government to decide; for that, no permission is required from this Court; may be as a proprietary or practice of procedure after intimating the same to this Court such a stand can be taken. 5 WA 516/23 5. In the light of the fact that this Court had not decided anything in regard to the Issue now sought for to be projected through this review, there is no scope for reviewing the judgment. It is upto the Government to decide whether Ext.P4 is to be reviewed or not.” 4. On 14.8.2020, Ext.P9 order was passed cancelling Ext.P4 order of assignment for the reason that while passing Ext.P4 under Rule 21(ii) of the Assignment of Land within Municipal and Corporation Areas Rules, 1995, (for short ‘the Rules 1995’) there was some procedural irregularities. The petitioner challenged Ext.P9 in the Writ Petition. 5. A statement has been filed on behalf of the 2[nd] respondent. The stand taken in the statement is that the State Government has taken a consistent decision not to assign any land in favour of any educational institution considering the paucity of land in Kerala. G.O.(MS) No.280/2011/RD dated 27.7.2011 was marked as Annex.R2(a). As per the said GO, certain guidelines were issued for the assignment of lands. 6 WA 516/23 Ext.P4 was issued without noticing R2(a) in favour of the petitioner. For this reason, Ext.P9 was issued, cancelling Ext.P4 for procedural irregularities. By the impugned judgment, the learned Single Judge set aside Ext.P9 as it does not state any reason and is issued without proper application of mind. 6. Sri Jaffer Khan, the special Government Pleader, argues that Annex.R2(a) should have been taken into consideration by the learned Single Judge. As per Annex.R2(a), from 27.7.2011 onwards, the Government land cannot be assigned to any educational institution, but can only be leased out. Based on this Government order and the liberty given by this court in R.P.No.114 of 2019 in W.P.(C) No. 33335 of 2018, the Government passed Ext.P9 cancelling Ext.P4 order. He further argues that since the land was vested with the Municipality, there should have been a notification issued by the Government diverting the same, and in the absence of such a notification, the Government cannot assign the land. 7 WA 516/23 7. The counsel for the respondents, Shri K I Mayankutty Mather, argues that the assignment under Ext.P4 is invoked under Rule 21(2) of the Rules 1995. The said Rule starts as notwithstanding anything contained in these rules, the Government may (i) authorise any officer to exercise the powers and functions which may be exercised by the Assigning Authority: and (ii) if they consider it necessary so to do in public interest, assign land subject to such terms and conditions, if any, as may be imposed. 8. It is invoking the said rule and following all the procedures, including the no objection of the Municipality that the assignment order was passed. Ext.P9 is legally improper, and without an opportunity of affording of hearing, that Ext.P4 was cancelled. The counsel for the respondents further relied on Annex.R2(a) and contended that even going by the said order, the power of the Government to assign land for educational purposes other than personal housing is not taken away, and it 8 WA 516/23 continues with the Government in revenue department. Lease orders issued before the order will alone stand cancelled, and the lessee need to apply to the Government, which will be examined based on the present guidelines. Therefore, the power to grant assignments still holds with the Government. 9. He also relies on Rule 18 Sub Rule 6 of Rule 1995, which is the power available to the Government to _suo-motu_ , call for the records, and revise, alter, or cancel. The said power of the Government is limited to revision or alteration of any order passed by any subordinate authority under the Rules and not to review or revise any orders passed by the Government. On that score also, Ext.P9 is without jurisdiction. 10. The special Government Pleader relies on the judgment of Apex Court in **Jagpal Singh and others v. State of Punjab and others (2011 KHC 4091)** and **NSS Karayogam No.1300, Mundapally and others v. State of Kerala and others** **[2020 (5) KHC 181]** to contend for the proposition that the 9 WA 516/23 Government has the power to prescribe the nature of public purpose and modalities to be followed in land assignment. In **Jagpal (supra),** the issue was illegal encroachments of Panchayat land. The Apex court held that the appellants were trespassers who illegally encroached on the panchayat land using muscle and money power, and regularisation cannot be permitted. Even if trespassers have built houses on such land, they must be ordered to remove their constructions, and possession must be handed over back to Panchayat. In such cases, regularisation must not be permitted, and unauthorised occupants should be evicted. In **NSS Karayogam (supra),** the issue was regarding the acquisition of land for a public purpose, and later the said public purpose was abandoned. The parameters for returning the land to the erstwhile landowner was the issue taken up. Coming to the facts of this case, as per a valid order of the Government, the land was assigned to the petitioner, and thereafter, it was cancelled due to procedural irregularities. So, the facts of this case can be 10 WA 516/23 distinguished from those of the **Jagpal Singh (supra)** and **NSS Karayogam (supra)** and hence, the dictum of the decisions **.** cannot be applied to the facts of this case 11. The counsel for the respondents relied on the judgment of a full bench decision of the apex court in **Patel Narshi Thakershi and others v. Pradyumansinghji Arjunshinghji (1971 KHC 713)** in which, it was held that the Government has no power to review its own order when it is not conferred by law either expressly or by necessary implication. 12. The first respondent has filed I.A. No.1 of 2023 to accept the additional affidavit and Annex.Nos.R1(a) and R1(b). It is submitted by the Spl. Government Pleader that Annex.R1(a) was issued on 25.5.2023 after the judgment of the learned Single Judge cancelling Ext.P9 order which is under challenge. The counsel for the respondents relying on Annex.R1(a) submits that since Ext.P9 is already withdrawn, the Writ Petition itself has 11 WA 516/23 become infructuous. 13. In its wisdom, the Government has made fit that Ext.P9 lacks clarity and procedural violation. Therefore, Ext.P9 was withdrawn through Annex.R1(a). Since the impugned order was set aside by this court and subsequently cancelled by the appellants themselves, we do not wish to express our opinion regarding the power exercised by the Government. In such a situation, it is for the writ petitioner to work out his remedies if he is still aggrieved by the order of the Government. Leaving open the right to the Writ Petitioner to challenge the orders of the Government, if so advised, the Writ Appeal stands disposed of. ## **Sd/-** **S.V.N.BHATTI, CHIEF JUSTICE** **Sd/-** **BASANT BALAJI, JUDGE** _dl/_ 12 WA 516/23 ## **`APPENDIX OF WA 516/2023`** ``` RESPONDENT ANNEXURES ``` ``` Annexure R1(a) TRUE COPY OF THE ORDER DATED 25.5.2023 ISSUED BY THE 1ST APPELLANT Annexure R2(b) TRUE COPY OF THE HEARING NOTICE GIVEN BY THE 1ST APPELLANT TO THE RESPONDENT DATED 1.6.2023 ``` ``` PETITIONER ANNEXURES ``` ``` ANNEXURE I TRUE COPY OF THE FM SKETCH PERTAINING TO THE PROPERTY IN QUESTION. ``` ``` ANNEXURE II TRUE COPY OF THE REPORT REGARDING THE FAIR VALUE PERTAINING TO THE NEIGHBOURING PROPERTY INCLUDING SKETCH PREPARED BY THE VILLAGE OFFICER. ```