V. V. George v. District Collector, Painavu, Idukki; Revenue Divisional Officer, Devikulam; Tahsildar, Devikulam Taluk; Village Officer, KDH Village, Devikulam, Idukki District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:-** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 4TH DAY OF JULY 2017/13TH ASHADHA, 1939** ## **W.P(C).No.19733 of 2017 (N)** **-----------------------------------** **PETITIONER(S):-** **---------------** **V.V.GEORGE, S/O VARKEY, AGED 56 YEARS, VALETHU HOUSE, LOVE DALE COTTAGE, COLONY ROAD, MUNNAR, IDUKKI DISTRICT.** **BY ADVS.SRI.K.JAJU BABU (SR.) SRI.LATHEESH SEBASTIAN** **RESPONDENT(S):-** **---------------** **1. THE DISTRICT COLLECTOR, PAINAVU, IDUKKI - 685603.** **2. THE REVENUE DIVISIONAL OFFICER, DEVIKULAM, IDUKKI DISTRICT - 685613.** **3. THE TAHSILDAR,** **DEVIKULAM TALUK, IDUKKI DISTRICT - 685613.** **4. THE VILLAGE OFFICER, KDH VILLAGE, DEVIKULAM, IDUKKI DISTRICT - 685613.** **R1 TO R4 BY ADDL. ADVOCATE GENERAL SRI.RANJITH THAMPAN, I/B. SENIOR GOVT. PLEADER SRI.M.H.HANIL KUMAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.19733 of 2017 (N)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS:-------------------------** - **EXHIBIT P1 TRUE COPY OF THE ORDER OF GRANT OF THE 3RD RESPONDENT DATED 10.12.1986.** - **EXHIBIT P2 TRUE COPY OF THE LICENSE AGREEMENT WITH TATA TEA LTD, DATED 15.6.1995.** - **EXHIBIT P3 TRUE COPY OF THE NOTICE OF THE ASST. EXECUTIVE ENGINEER DATED 10.5.2007.** - **EXHIBIT P4 TRUE COPY OF THE LICENSE ISSUED BY MUNNAR GRAMA PANCHAYAT DATED 23.1.2007.** - **EXHIBIT P5 TRUE COPY OF THE LICENSE ISSUED BY MUNNAR GRAMA PANCHAYAT DATED 18.4.2017.** - **EXHIBIT P6 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 7.6.2017.** - **EXHIBIT P7 TRUE COPY OF THE NOTICE OF THE 3RD RESPONDENT DATED 9.6.2017.** - **EXHIBIT P8 RELEVANT EXTRACT OF THE REPORT IN MALAYALA MANORAMA DAILY DATED 02.07.2017.** - **EXHIBIT P9 THE RELEVANT EXTRACT OF THE REPORT IN THE HINDU DAILY DATED 02.07.2017.** **EXHIBIT P10 THE LIST OF EXPIRED GRANT/KUTHAKAPATTAM AT KDH VILLAGE.** - **EXHIBIT P11 TRUE COPY OF THE LETTER ISSUED BY THE THOMAS MICHAEL AND OTHER PARTNERS DATED NIL.** **EXHIBIT P12 TRUE COPY OF THE LETTER OF THOMAS MICHAEL DATED 09.02.2005.** **EXHIBIT P13 TRUE COPY OF THE INFORMATION ALONG WITH THE QUESTIONNAIRE.** **EXHIBIT P14 TRUE COPY OF THE NOTICE OF THE 3RD RESPONDENT DT.12.12.2012.** **EXHIBIT P15 TRUE COPY OF THE INFORMATION DATED 30.01.2010.** **EXHIBIT P16 TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **- 2 -** **WP(C).No.19733 of 2017 (N)** ## **RESPONDENT(S)' EXHIBITS:-------------------------** **EXHIBIT R2(a) TRUE COPY OF THE HON'BLE SUPREME COURT JUDGMENT REPORTED IN 2011 KHC 4091. EXHIBIT R2(b) TRUE COPY OF THE ASSESSMENT REGISTER FOR THE YEAR 1991-92 TO 1996-97 OF MUNNAR GRAMA PANCHAYAT. EXHIBIT R2(c) TRUE COPY OF LETTER NO.1/2003 DT.26.03.2003 OF THE ASSISTANT ENGINEER, PWD. EXHIBIT R2(d) TRUE COPY OF THE ORDER NO.A2-2717/09 DT.17.05.2010 OF THE REVENUE DIVISIONAL OFFICER, DEVIKULAM. EXHIBIT R2(e) TRUE COPY OF THE ORDER NO.B3-15002/06 DT.9.1.2010. EXHIBIT R2(f) TRUE COPY OF THE ORDER NO.B3-15002/06 DT.27.05.2011.** **vku/[ true copy ]** ## K. Vinod Chandran, J ---------------------------------------- W.P.(C).No.19733 of 2017-F ----------------------------------------Dated this the 04th day of July, 2017 ## **JUDGMENT** The petitioner challenges Exhibit P6 order passed under the Kerala Land Assignment Rules, 1964 [for brevity “Assignment Rules”] and the consequential proceedings taken by Exhibit P7 under the Kerala Land Conservancy Act, 1957 [for brevity “Conservancy Act”]. The ground raised is that he being the person in possession was never issued with notice under the Conservancy Act. Exhibit P7 ordered eviction from 22 cents of property in Survey No.62/10-C and 62/28-A in Kanan Devan Hills Village of Devikulam Taluk in Idukki District. The petitioner is said to have obtained possession of the said land from one Thomas Michael, who obtained a grant of 22 cents of land by proceedings at Exhibit P1 dated 10.12.1986. Another 3.4 cents of land, contiguously lying was also put in possession of a partnership; in which Thomas Michael was a partner, as evidenced by Exhibit P2. In the said property the petitioner has been running a home-stay for long and the eviction notice under the Act was issued in the name of the predecessor-in-interest of the petitioner. The **- 2 -** WP(C) No.19733 of 2017 petitioner is sought to be evicted, even without a notice to him, is the contention urged. 2. It is argued by the learned Senior Counsel appearing for the petitioner that though Exhibit P1 was initially for a period of three years, renewal fees were paid by Thomas Michael upto 1999-2000. The petitioner, together with a partnership firm, was carrying on business in tea in the said land; from which business, the partnership withdrew and agreed for transfer of licence in the name of the petitioner. The petitioner also has filed a detailed reply affidavit, producing various documents to buttress the above contention. Exhibits P11 and P12 are specifically referred to. Exhibit P12, comprising of two communications, are addressed to the Company which executed Exhibit P2 agreement with the partnership firm. Therein, it is stated that the partnership along with the petitioner was carrying on tea business and that the licence agreement may be renewed in the name of the petitioner. Exhibit P11 is addressed to the Grama Panchayat, which is also on similar terms; upon which the petitioner was also granted D&O Licence, based on which he has been continuing in the premises. The licence issued by the Munnar **- 3 -** WP(C) No.19733 of 2017 Grama Panchayat in 2007 and 2017 are also produced as Exhibits P4 and P5. It has to be immediately noticed that though the petitioners contention is that he had been carrying on business in tea, the license issued is for lodging and home-stay. 3. The learned Additional Advocate General appearing for the State takes me through Exhibit P1 to contend that it was only a temporary grant for three years and there could never have been a renewal of the same. Clause (3) of the grant, which is in the form of Appendix VII under the Kerala Land Conservancy Rules, 1958 [for brevity “Conservancy Rules”], prohibits any transfer of the rights of the grantee. It is pointed out that Exhibit P3 notice was issued in the year 2007 against the petitioner. In the counter affidavit, it has been specifically pointed out that Thomas Michael had filed an application for assignment alleging that he was in possession of the land from 1971. However, the Property Assessment Register 1991-1992 to 1996-97 of the Munnar Grama Panchayat [Exhibit R2(b)] shows the building in the property, to be that owned by the Public Works Department. The Assistant Engineer, PWD informed the Tahsildar about the building having vested with the PWD [Exhibit R2(c)]; on the **- 4 -** WP(C) No.19733 of 2017 basis of which the application for assignment was rejected by the Tahsildar. 4. Appeal was filed against the order; in which by Exhibit R2(d) there was a remand made. In compliance with Exhibit R2(d), the Tahsildar, after hearing the applicant, rejected the application for assignment as per Exhibit R2(e). Based on Exhibit R2(e) further proceedings were also issued as per Exhibit R2(f). The conditions for a valid assignment are house construction, agriculture purpose and beneficial enjoyment; none of which is available in the instant case, asserts the learned Additional Advocate General. It is also pointed out that the objection of absence of notice cannot be raised by the petitioner since admittedly he is a partner of the original grantee. The learned Senior Counsel for the petitioner would, however, refute the contention of partnership and claim that the petitioner had been carrying on business by himself and not under partnership. It is also argued that the Government lands in KDH Village are similarly possessed by more than 100 persons, which has been proposed to be regularised; as per the newspaper reports produced along with the reply affidavit. The learned Additional Advocate General stoutly denies **- 5 -** WP(C) No.19733 of 2017 any move for regularisation. 5. Thomas Michael under whom the petitioner claims possession was continuously before the authorities and had suffered various orders which eventually has led to the eviction under the Conservancy Act. In passing it is to be noticed that Exhibit P6 order refers to the non appearance of Thomas Micheal despite notice, in the appeal under the Assignment Act and the Head Clerk of the Sub-Collector's Office having met him personally at his residence when he denied having made any application or appeal under the Act. Still there was appearance of an Advocate on 12.04.2017 and 03.05.2017, when the appeal was heard and the impugned order passed. The application for assignment also having been dismissed and the appeal too, by Exhibit P6, there can now be no rights claimed by the person who was originally given the grant and put in possession of the property and in such circumstance the petitioner, who is a rank trespasser, can have no right greater than that of the original grantee. 6. Exhibit P1, as is argued by the State, is a temporary grant of State land for temporary occupation for three years. Clause **- 6 -** WP(C) No.19733 of 2017 (3) of Exhibit P1 also prohibits transfer _“to any other persons the rights hereby conveyed”_ . Though the same had been permitted, with the previous sanction of the authority who has made the grant, a reading of Appendix VII as appended to the Rules would indicate that the provision for sanction has been done away with in 1966 itself. In any event, the petitioner does not have a contention that the transfer to him has been sanctioned by any authority. The learned Senior Counsel has contended that there was no alienation effected and he was only in permissive occupation by the original grantee. Even that cannot be countenanced, since the temporary occupation awarded to the grantee could not have been transferred to the petitioner going by the specific provision therein. Further if the claim is only of a permissive occupation as has been already found, the petitioner cannot have a greater right than the original grantee. 7. Clause (6) of Exhibit P1 indicates that the grant was made for 'putting up a shop'. It is the specific contention of the State in its counter affidavit that the original grantee established an arrack godown, in the building existing in the property even at the time of the grant; which has not been denied by the petitioner in the detailed reply **- 7 -** WP(C) No.19733 of 2017 affidavit filed. The alleged permissive occupation was also for carrying on a business in tea. Admittedly now the petitioner is carrying on a home-stay. This Court has already considered the consequence of putting to use the lands assigned; for other purposes than which is specifically intended. It would result in revocation of such assignment, as held in _**Haridas v. State of Kerala**_ **[2016 (4) KLT 707].** Herein, it is to be noticed that there is not even an assignment made and the grant is only for a temporary occupation for three years, for putting up a shop. 8. The definition of “shop” has also been considered by this Court in **W.P.(C) No.38287 of 2016** , vide judgment dated 21.12.2016 **[** _**Madhu John v. State of Kerala & Others**_ **]** . This Court was dealing with an assignment under the Kerala Land Assignment (Regulation of Occupation of Forest Land prior to 01.01.1997) Special Rules, 1993 (for brevity 'the Special Rules of 1993'); wherein assignment could be made _inter alia_ for shop sites; which was held to be not covering the category of buildings constructed for lodging houses. The reasoning would squarely apply here too and though there was no assignment, the original grant was only to put up a shop; **- 8 -** WP(C) No.19733 of 2017 in which now a home-stay is carried on. 9. Exhibit P6 order elaborately considers the issue. It is found that even Thomas Michael was continuing unauthorisedly in the land after the initial grant of three years. As was noticed, Thomas Michael, on being contacted, had allegedly stated that he had not filed any application or appeal under the Assignment Act or Rules. But, Counsel has appeared and the matter was heard before orders were passed. It was found that the building existing in the land was shown in the Register of the Panchayat as belonging to the Public Works Department and later the possession is, as is seen from the Register of the Panchayat, on one M.M.Joseph. The Register has also noticed the ownership of the building in the column for “ownership: as “Assistant Engineer, P.W.D.” and in the column for “enjoyment” as being with “Joseph Michael”. The licence issued with respect to the property by the local authority is in the name of V.V.George. The Sub Collector finds that the land in question is “puramboke” as defined under Section 4 of the Conservancy Act and is a property reserved by the Government for public purposes and, hence, not assignable. The subject land had not been included in the list of assignable lands and **- 9 -** WP(C) No.19733 of 2017 the buildings erected there existed at the time of original grant and belongs to the PWD of the State. The transfer of possession is found to be in violation of the original grant and the public need for establishing a Village Office in the said land is also specifically referred to. This Court does not find any reason to interfere with the same. 10. This Court has to accept the argument of the State that the petitioner is a rank trespasser and notice was served on the original grantee at every stage; who has not even been made a party in the present writ petition. As is seen from the documents produced by the petitioner along with the reply affidavit, Exhibits P11 and P12, the partnership firm was carrying on the business along with V.V.George, the petitioner. The reference to Section 12 of the Conservancy Act made by the learned Additional Advocate General is very pertinent. A notice has to be issued only to the occupant or his agent. The contention is of a joint operation carried on by the petitioner and the partnership firm. One of the partners being the original grantee, having been issued with notice, there can be no claim of absence of notice. **- 10 -** WP(C) No.19733 of 2017 11. _**Poulo v. State of Kerala**_ **[1976 KLT SN 23 (Case No.52)]** and _**Muhammed Kutty v. Tahsildar**_ **[2013 (1) KLT 133]** are decisions with respect to the requirement of a notice and the necessity to show the exact description of the land from which eviction is sought. It has already been found that the original grantee has been issued with notice and that satisfies the requirement of Section 12. As far as the description of the land, the eviction is sought from 22 cents of land. There is in existence 3.5 cents of land in the possession, which has to be demarcated. 12. As was admitted, the petitioner is carrying on a home-stay in the building existing in the property, which definitely is not the purpose intended by the original grant at Exhibit P1. The orders of the Tahasildar specifically find that the grant was never renewed and even the grantee had been, in illegal occupation after the three years from Exhibit P1. The petitioner also cannot be said to be in permissive occupation, since the rights under the grant cannot be conveyed in any manner. Though there is a contention that Thomas Michael paid the renewal fees upto 1999-2000, there is nothing produced to substantiate the same. Again, admittedly no **- 11 -** WP(C) No.19733 of 2017 amounts were paid after 2000. Thomas Micheal , himself has been found to be in illegal occupation of the property after the expiry of the period of grant of three years. The eviction got delayed only due to the proceedings initiated for assignment, which has now been concluded. The petitioner is found to be a rank trespasser in the property, if at all, he is in occupation. 13. One other ground raised by the State is that they are in dire need of the land and building for housing the Village Office to bring into effect the sanction for bifurcating KDH Village into two and forming the new Munnar Village. There is dearth of suitable land within Munnar Town and this particular land with a building is best suited for the purpose and the immediate public need also warrants the eviction. Sufficient support can be garnered from the judgment of the Hon'ble Supreme Court in _**Jagpal Singh and Others v. State of Punjab and Others**_ **[2011 (11) SCC 396]** , wherein large scale encroachments by unscrupulous land grabbers using muscle, money and political clout had been deprecated by the Hon'ble Supreme Court. The Hon'ble Supreme Court had directed all the State Governments in the Country to prepare schemes for eviction of **- 12 -** WP(C) No.19733 of 2017 illegal/unauthorised occupants of Government lands or lands vested in the local authorities. The directions are relevant for all times and the lethargy of the authorities cannot confer new rights on the encroachers. There is no requirement for a special scheme in the State since the Conservancy Act is in force and it grants ample power to the State and the authorities constituted there under to proceed for recovery of what belongs to the State. It is trite that public interest is paramount and even in the case of privately held lands, deprivation of property is possible, subject to the holder being amply compensated and the State resorting to acquisition. In the present case the petitioner does not have any claim for valid possession of the government land, either directly or indirectly. 14. The learned Senior Counsel for the petitioner quite conscious of the fate of the writ petition, sought for three months time to vacate the premises; which is stoutly opposed by the learned Additional Advocate General. Considering the entire circumstances, the time sought for by the petitioner shall be granted, provided the petitioner permits the Revenue authorities to immediately and peacefully enter the premises and carry out an inventory in the **- 13 -** WP(C) No.19733 of 2017 presence of the petitioner. Survey, if any, shall also be carried out and the petitioner shall be permitted to take out his personal belongings from the property. If the petitioner does not permit such entry of the Revenue officials, then appropriate action shall be taken to proceed with the eviction in accordance with law. 15. Much has been argued by the petitioner of other similar encroachments, of larger extents being continued with the tacit approval of the Government and its authorities. First and foremost such an illegality, even if existing, would not enable an encroacher to justify his encroachment. The contention with respect to other illegal occupants in the area being regularised is raised only on the basis of newspaper reports. This Court would desist from making any sweeping comments or issuing any broad directions, based merely on paper reports. 16. Suffice to notice that this Court had in _**Haridas**_ specifically noticed an earlier judgment, wherein encroachers were directed to be evicted and had also directed the Government to look into the encroachments and violations of terms of assignment to get back Government lands. The observations are extracted hereunder: WP(C) No.19733 of 2017 **- 14 -** “19. This Court in arriving at the above findings is further fortified by the judgment of a learned Single Judge dated 13.08.2009 in W.P.(C) No.9605 of 2008 ( _K.R. Ramanan & Another v. Kerala State Pollution Control Board & Others_ ). Similar contentions were raised therein, wherein the factual aspects differed only on account of the assignment having been granted under the Special Rules for Assignment of Government Lands for Rubber Cultivation, 1960, in which lands; quarrying operations were conducted. The quarry owners therein also raised similar arguments of the quarrying permits being issued by the Government and the royalty having been regularly paid to the Government. Based on the specific terms of assignment, which was for the purpose of rubber cultivation, it was held that a possession certificate granted by the Village Officer to apply for quarrying permit or issuance of the quarrying permit by the Geologist would not confer any right on the petitioners to carry on an activity in the assigned lands which are different from the specific purpose for which the assignment was made. Similar conditions in the Special Rules of assignment were noticed to find that the lands are not only liable to be taken back by the Government but also the owners are liable to be proceeded against for the entire value of the granite stones quarried from the property. The silence of the Tahsildar and the Geologist in the counter affidavits filed with respect to the violations of the conditions of the patta was noticed with surprise. There were directions issued to cancel **- 15 -** WP(C) No.19733 of 2017 the Pattas issued in that case and also to take action against similarly situated assignees. The reliance placed by the petitioners on Annexure R2(c) judgment is irrelevant since the learned Single Judge reserved the right of the State to proceed for violation of terms of assignment; which is the specific ground raised herein by the State. 20. _**It is quite disconcerting that despite the various directions issued by this Court time and again; two of which as noticed in the afore-cited judgment and also in the matter pending before the Division Bench, has not changed the situation a bit. The Revenue authorities, a law unto themselves, have been violating the provisions and colluding with the assignees causing gross damage to the ecology and environment.**_ Be that as it may; the petitioners herein were quite aware of the conditions of assignment; though their ignorance, if at all, would have been of little consequence in the teeth of the statutory prescriptions. The relaxation sought for, having not been granted, the petitioners commenced and continued the construction at their risk and peril. They cannot now turn round and contend that the revenue authorities led them to believe that a construction could be carried on in the assigned land and in that belief considerable monies were expended to commence and continue a construction. _**(emphasis supplied)**_ WP(C) No.19733 of 2017 **- 16 -** 17. Hence, there is no dearth of legal precedents of the Hon'ble Supreme Court and the jurisdictional High Court to trigger the Government into action to take back what is due to the people and to put it to public benefit. The Legislature too has brought in enactments to proceed for such recovery. What is required is the political will to proceed and the official vigor to implement. If either is dampened then it is the public interest that is compromised. Is it too much for the citizenry to expect the Government, who came to power with the simple pledge; that everything will be set right, to act, positively and effectively? The writ petition is dismissed. Parties are left to suffer their respective costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]