Vamana Prabhu, C. X. Francis and N.C. Joseph v. The State of Kerala, The District Collector, Kanayannur Taluk, Tahsildar, Village Officer and The Kerala Brahmana Sabha (W.P.(C) No. 28780 of 2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936** ## **WP(C).No. 28780 of 2011 (V)** **-----------------------------------------** ## **PETITIONERS :** ## **-----------------------** **1. VAMANA PRABHU, AGED 49 YEARS, S/O.GOPALAKRISHNA PRABHU, GOVT. PRESS ROAD, NEAR DISTRICT COURT, ERNAKULAM, KOCHI-11.** **2. C.X. FRANCIS, AGED 75 YEARS, S/O.XAVIER, GOVT. PRESS ROAD, NEAR DISTRICT COURT, ERNAKULAM, KOCHI-11.** **3. N.C.JOSEPH, ADVOCATE, AGED 62 YEARS, S/O.N.V.CHACKO, GOVT.PRESS ROAD, NEAR DISTRICT COURT, ERNAKULAM, KOCHI-11.** - **BY ADVS.SMT.T.T.JOSEPHINE SRI.T.M.MATHAI** - **SRI.V.SANKARA RAJA** ## **RESPONDENTS :** ## **-------------------------** **1. THE STATE OF KERALA,REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** **2. THE DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, KAKKANAD, ERNAKULAM, PIN - 682 030.** **3. THE TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM, PIN - 682 011.** **4. THE VILLAGE OFFICER, ERNAKULAM, PIN - 682 011.** **5. THE KERALA BRAHMANA SABHA, REGD.NO.60/79, CITY UPASABHA,REPRESENTED BY ITS PRESIDENT, OFFICE OF THE CITY UPASABHA AT GRAMAJANA SAMOOHA MADHAM,GOVERNMENT PRESS ROAD, ERNAKULAM KOCHI, PIN - 682 011.** Msd. ## **WP(C).No. 28780 of 2011 (V)** ## **-----------------------------------------** ## *** ADDITIONAL R6 AND R7 IMPLEADED** **-----------------------------------------------------** ## **6. JOSHI VARGHESE, ADVOCATE, S/O.M.I.VARGHESE, GOVERNMENT PRESS ROAD, ERNAKULAM.** **7. MATHEW JOSE, ADVOCATE, S/O.JOSEPH, GOVERNMENT PRESS ROAD, ERNAKULAM.** *** ADDITIONAL R6 AND R7 ARE IMPLEADED AS PER ORDER DATED 04.06.2014 IN I.A.NO.14224 OF 2012** **R1 TO R4 BY SPL.GOVERNMENT PLEADER SMT.SUSEELA BHATT R5 BY ADVS.SRI.P.B.SAHASRANAMAN** **SRI.T.S.HARIKUMAR SRI.K.JAGADEESH ADDL.R6 & R7 BY ADVS. SRI.T.M.CHANDRAN SRI.S.SUJITH SRI.V.R.RAJESH, ADVOCATE COMMISSIONER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-06-2014, THE COURT ON 20-06-2014 DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 28780 of 2011 (V)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **--------------------------------------** **EXHIBIT P1 : TRUE COPY OF THE APPLICATION DATED 17-11-2008 SUBMITTED TO THE 2ND RESPONDENT.** - **EXHIBIT P2 : TRUE COPY OF THE ORDER NO.48925/A1/06/RD DATED 12-06-2006.** - **EXHIBIT P3 : TRUE COPY OF COMMUNICATION OF THE DISTRICT COLLECTOR DATED 18-07-2006.** - **EXHIBIT P4 : TRUE COPY OF LETTER OF THE TAHSILDAR, KANAYANNUR DATED 06-03-2010.** - **EXHIBIT P5 : TRUE COPY OF LETTER OF THE DISTRICT COLLECTOR, ERNAKULAM DATED 25-05-2010.** - **EXHIBIT P6 : TRUE COPY OF THE REPORT OF THE VILLAGE OFFICE, ERNAKULAM DATED 27-11-2010.** - **EXHIBIT P7 : TRUE COPY OF SKETCH MAHZAR PREPARED BY THE VILLAGE OFFICER, ERNAKULAM.** - **EXHIBIT P8 : TRUE COPY OF SKETCH MAHZAR PREPARED BY THE VILLAGE OFFICER, ERNAKULAM.** - **EXHIBIT P9 : TRUE COPY OF ORDER NO.8802/A3/10 REV.DATED 03-05-2011.** - **EXHIBIT P10: TRUE COPY OF THE ORDER NO.G.O(MS) NO.356/11/REV. DATED 30-09-2011.** - **EXHIBIT P11: TRUE COPY OF THE OBJECTION DATED 14-10-2011.** - **EXHIBIT P12: PHOTOGRAPHS OF THE PROPERTY EVIDENCING THE LOCATION OF THE AFORESAID OFFICES.** - **ADDITIONAL EXHIBIT P13 : TRUE COPY OF THE ORDER OF COCHIN CORPORATION DATED 21.08.2000 ISSUED TO THE 1ST PETITIONER.** **ADDITIONAL EXHIBIT P14 :** - **TRUE COPY OF THE RENEWAL ORDER DATED 29.09.2011 RENEWING THE TAX ISSUED TO THE 1ST PETITIONER.** - **ADDITIONAL EXHIBIT P15 : TRUE COPY OF THE CERTIFICATE ISSUED BY THE GENERAL MANAGER, ERNAKULAM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD. NO.E-150(D) DATED 29.11.2011.** - **ADDITIONAL EXHIBIT P16 : TRUE COPY OF THE LATEST WATER BILL ISSUED BY THE KERALA WATER AUTHORITY DATED 01.12.2011.** Msd. ## **WP(C).No. 28780 of 2011 (V)** **ADDITIONAL EXHIBIT 17 : TRUE COPY OF THE LATEST ELECTRICITY BILL BY THE KERALA STATE ELECTRICITY BOARD DATED 17.10.2011. ADDITIONAL EXHIBIT P18 : TRUE COPY OF THE REPORT NO.L2-23859/10 DATED 11.11.2011 ISSUED BY THE 3RD RESPONDENT. ADDITIONAL EXHIBIT P19 : TRUE COPY OF THE PROCEEDINGS OF THE DEPUTY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT NO.8802/03/10'RD' DATED 08.04.2011. ADDITIONAL EXHIBIT P20 : TRUE COPY OF THE THE REPORT OF THE 2ND RESPONDENT DISTRICT COLLECTOR TO THE FIRST RESPONDENT DATED 14.12.2010 NO.L1 - 67667/08 (2).** **ADDITIONAL EXHIBIT P21 : TRUE COPY OF THE BASIC TAX REGISTER OF THE PROPERTY IN SY.NO.1573 OF ERNAKULAM VILLAGE. ADDITIONAL EXHIBIT P22 : TRUE COPY OF THE INFORMATION RECEIVED FROM THE CORPORATION OF KOCHI, DATED 20.12.2011.** ## **RESPONDENT(S)' ANNEXURES:** **ANNEXURE A : A TRUE COPY OF THE SKETCH PREPARED BY THE VILLAGE OFFICER, ERNAKULAM.** **ANNEXURE B : A TRUE PHOTO COPY OF THE BASIC TAX REGISTER PERTAINING TO 21.25 CENTS OF LAND OF ERNAKULAM VILLAGE.** ## **ADVOCATE COMMISSIONER(S)' ANNEXURES :** **ANNEXURE C1(A) : PHOTOGRAPH ANNEXURE C1(B) : PHOTOGRAPH ANNEXURE C1(C) : PHOTOGRAPH ANNEXURE C1(D) : PHOTOGRAPH ANNEXURE C1(E) : PHOTOGRAPH //TRUE COPY//** **P.A.TO JUDGE.** Msd. **A.V. RAMAKRISHNA PILLAI, J. -------------------------------------------------W.P.(C) No. 28780 of 2011 -------------------------------------------------Dated this the 20[th] day of June, 2014** ## **J U D G M E N T** Under challenge in this writ petition is Ext.P10 order, by which a piece of land, which admittedly is a 'road puramboke', was assigned by the Government in favour of the 5[th] respondent, a registered organization. 2. Property having an extent of 4.41 ares in Sy.No.1573 of Ernakulam Village is a narrow strip of land bounded on the east by a hotel building and the Government Post-metric Women's hostel. The property is bounded on the south by the Government Press Road. The petitioners allege that they are occupying certain rooms on the side of the hotel building; and certain advocates are using an old building on the northern end. The 1[st] petitioner is conducting a Milma Booth on the south western corner of the property. The petitioners allege that the only access for all these persons to their W.P.(C) No. 28780 of 2011 **==> picture [20 x 8] intentionally omitted <==** workplace is the aforesaid property, which is being used for parking their vehicles and by other customers. The property is very close to Siva Temple Complex, the Court Complex, Ernakulam and Kanayannur Taluk Office. The 5[th] respondent submitted a petition before the District Collector for giving the property on lease to have their office there. The grievance of the petitioners is that respondents 1 to 4, without giving any notice to the petitioners and overlooking the mandatory provisions of the Land Assignment Act and Rules made thereunder, passed Ext.P10 order to give the property by way of lease to the 5[th] respondent for a period of 30 years on a notional rent of ₹100/per year. It is with this background, the petitioners have come up before this Court. 3. In the report filed by the Tahsildar, Kanayannur Taluk as directed by this Court, it was submitted that only an extent of 2.57 ares is available for assignment and it is marked as “A” in the sketch prepared by the Village W.P.(C) No. 28780 of 2011 **==> picture [20 x 8] intentionally omitted <==** Officer, Ernakulam, which is produced as Annexure (A). 4. The 5[th] respondent filed a detailed counter affidavit, wherein it is stated that they did not want any land causing hardship to any person, who is otherwise entitled to use the said land in accordance with law, and did not want to restrict ingress and egress to any person to enter their property. According to them, they have been granted the property after leaving 4 meters for keeping the present road, which is more than required for enjoyment of other persons including the petitioners. They also contended that the property in question is not a 'road puramboke'. According to them, they are ready to execute the lease deed. However, the property has not been given possession due to the interim order of this Court. 5. Additional respondents 6 and 7 were impleaded subsequently. These respondents are advocates, who are having their office in an old building abutting the aforesaid land in question. They also maintain the stand W.P.(C) No. 28780 of 2011 **==> picture [20 x 8] intentionally omitted <==** that the impugned order is in violation of the provisions of the Kerala Land Assignment Act and Rules. According to them, the purpose of the 5[th] respondent is to construct a building. They would contend that no building can be constructed on a 'road puramboke'. According to them, no public interest is involved in the assignment of the property. 6. I have heard the learned counsel for the petitioners, the learned Special Government Pleader (Revenue), the learned counsel for the 5[th] respondent and the learned counsel for additional respondents 6 and 7. 7. By Ext.P10, the 5[th] respondent has been given permission to construct a building in the property in question. The learned Special Government Pleader would submit that it is not an assignment, but, it is only a lease arrangement for a particular period and sufficient safeguards are incorporated in Ext.P10 retaining the authority of the Government to reclaim the property in the event of violation of conditions made mention of W.P.(C) No. 28780 of 2011 ..5.. therein. 8. The learned counsel for the 5[th] respondent would submit that the property is not a 'road puramboke' and the same is not being used as a road. 9. To ascertain the factual situation, an Advocate Commissioner has been deputed by this Court, who have filed a report, which would go to show that the property in question is being used as a road by the occupiers of the buildings on either side. The Tahsildar, Kanayannur Taluk, who has filed a report before this Court, has stated that as per the revenue records, it is a road. 10. According to the learned counsel for the petitioners, as the property in question is a 'road puramboke', the same is vested with the local authority; and therefore, the same cannot be assigned without consultation with the local authority. In answer to this argument, the learned Special Government Pleader would submit that the assignment was in exercise of powers conferred under Rule 24 of the Land Assignment Rules. W.P.(C) No. 28780 of 2011 **==> picture [20 x 8] intentionally omitted <==** 11. It is relevant to note that as per Ext.P9, the request of the 5[th] respondent has been rejected. There, it was correctly found that the proposed lease is violative of several guidelines and rules governing the matter and also in conflict with a number of decisions of the Supreme Court. However, the Government has not shown any justifiable reason to change the correct view in Ext.P9 while issuing Ext.P10 order. Ext.P2 would go to show that all assignments of 'government puramboke lands' to Organizations and Institutions in all districts would be kept in abeyance. Though it was argued by the learned Special Government Pleader that Ext.P10 was not an assignment, Explanation 2 of Section 2 of the Land Assignment Act would show that a transfer of property by way of lease is also an assignment. It can be seen from the matters now placed on board that the 3[rd] respondent, Tahsildar, has brought the fact to the notice of the District Collector. But, ignoring the correct view of the 3[rd] respondent, the District Collector proceeded with the W.P.(C) No. 28780 of 2011 **==> picture [20 x 8] intentionally omitted <==** matter. In view of Ext.P2, the lease proposed to be given under Ext.P10 to the 5[th] respondent is unsustainable; it was argued by the learned counsel for the petitioners. 12. As per Rule 6A(2) of the Assignment of the Land Municipal Rules, 1995, any land in a Municipal or Corporation area shall be assigned only on the recommendation of the Corporation Land Assignment Committee. As rightly pointed out by the learned counsel for the petitioner, the Cochin Corporation was kept in dark with regard to the proposed lease to the 5[th] respondent. It is also relevant to note that the land in question comes under Rule 11(2). Such a land cannot be assigned without consulting the local authority. The Division Bench of this Court in **Varkey Abraham** v. **Secretary to Government** [2007 (3) KLT 702] has observed that Rule 24 does not empower Government to completely do away with Act and Rules and their purpose and intent. Rule 24 could be exercised in a limited sphere only and that too, adhering to the paramount W.P.(C) No. 28780 of 2011 **==> picture [20 x 8] intentionally omitted <==** consideration of public interest. The respondents have failed to establish the overriding public interest in this matter. 13. It was further pointed out by the learned counsel for the petitioners that Rule 12(e) of the Assignment of Land Municipal Rules, 1965, states that no lease of any land situate in any Corporation area shall be given for a period exceeding three years. Under Ext.P10 order, the property is proposed to be given on lease for a period of 30 years. On that count also, Ext.P10 calls for an interference. 14. Under Rule 5 of the Land Assignment Rules, 1965, the annual lease rent shall be at a fixed percentage of the market value of the property. Evidently, the property made mention of in Ext.P10 is located at an important area of Kochi City, which would fetch lakhs of rupees per cent. However, Ext.P10 order would show that the rent fixed is only notional. Moreover, the aforesaid rules stipulate that the Tahsildar, on receipt of W.P.(C) No. 28780 of 2011 ..9.. the application, should issue a notice under his signature inviting objections to the proposed lease and the notice shall be affixed in a conspicuous part of the property. Here, this was not done. The petitioners and the additional respondents got information about the proposed lease through other sources; and they submitted objections to the proposed lease before respondents 1 to 4. But, the revenue authorities did not care to give any consideration to the representation, a copy of which is marked as Ext.P11. 15. It appears from the record that a tailor-made report was obtained from the 4[th] respondent, who is a Village Officer, suppressing several material facts. There, it was not reported that a number of advocates are having their offices in front of this property and they are using the property in question for ingress and egress and several commercial institutions are also functioning on either side of this property. 16. The Advocate Commissioner, who has W.P.(C) No. 28780 of 2011 **==> picture [26 x 8] intentionally omitted <==** submitted report, has produced photographs showing the location. It is also reported that two age old trees are standing in the property proposed to be allotted; and the so called four meter way set apart, cannot be used without cutting down and removing those trees. 17. Though the learned counsel for the 5[th] respondent has argued that larger public interest is protected in the conditions made mention of in Ext.P10, this Court is not impressed by the way in which the matter has been handled by the authorities concerned. Undue haste was seen at every stage and the impugned order was passed violating the statutory requirements. 18. Though it was much argued by the learned counsel for the 5[th] respondent challenging the right of the 1[st] petitioner, who is conducting a Milma Booth in a portion of the property, it is quite unnecessary to go into those questions in this writ petition as this Court is only concerned with the legality and regularity of Ext.P10 order. W.P.(C) No. 28780 of 2011 **==> picture [26 x 8] intentionally omitted <==** On a consideration of the entire materials now placed on board, this Court is of the definite view that Ext.P10 was issued in violation of mandatory requirements envisaged under the Kerala Land Assignment Act and Rules; and therefore, the same shall not be allowed to stand. In the result, the writ petition is allowed and Ext.P10 is quashed. Sd/- **A.V. RAMAKRISHNA PILLAI, JUDGE** bka/-