V.K. Achuthan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 22ND DAY OF SEPTEMBER 2020 / 31ST BHADRA, 1942** ## **W.P.(C)No.30774 OF 2012(V)** ## **PETITIONER :** **V.K.ACHUTHAN AGED 68 YEARS** **S/O.PAITHAL KURUP, VIDYA BHAVAN, PALAYADUNADA P.O., IRINGAL, KOZHIKODE.** **BY ADV. SMT.SARITHA DAVID CHUNKATH** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, SECRETRIAT, THIRUVANANTHAPURAM – 695 001.** - **2 THE SECRETARY LOCAL ADMINISTRATION, SECRETRIAT, THIRUVANANTHPURAM – 695 001.** - **3 THE SECRETARY, DEPARTMENT OF REVENUE, SECRETRIAT, THIRUVANANTHAPURAM – 695 001.** - **4 THE DEPUTY DIRECTOR OF PANCHAYATH KOZHIKODE – 673 001.** - **5 MANIYOOR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, MANIYOOR GRAMA PANCHAYATH, KOZHIKODE DISTRICT – 673 328.** - **R1 TO 4 BY GOVERNMENT PLEADER SMT VIDHYA A.C. R5 BY ADV. SMT.JAYASREE MANOJ R5 BY ADV. SRI.N.MANOJ KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.30774 of 2012(V) 2 ## **JUDGMENT** The petitioner, who is an Ex-Serviceman, who retired from Indian Army in the year 1982, after serving the Nation for 21 years, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P9 order dated 12.10.2012 issued by the 1[st] respondent State of Kerala, whereby the application made by the petitioner for assignment of 50 cents of land in Resurvey No.2 (Part) in Palayadu Village in Maniyoor Grama Panchayat stands rejected on the ground that puzha puramboke vested with Maniyoor Grama Panchayat cannot be assigned under the provisions of the Kerala Land Assignment Rules, 1964, in view of the provisions under Section 218 of the Kerala Panchayat Raj Act, 1994. Another ground stated in Ext.P9 order for rejection of the application for assignment of land is that the petitioner is holding 1½ Acres of land and as such, he is not entitled for assignment, based on his application dated 27.12.2006. The petitioner has also sought for a writ of mandamus commanding the respondents to assign him 50 cents of land in Resurvey No.2 (Part) in Palayadu Village in Maniyoor Grama Panchayat; a writ of mandamus directing the 3[rd] respondent Secretary, Revenue Department to consider his W.P.(C)No.30774 of 2012(V) 3 case and take necessary steps to assign him 50 cents of land in Resurvey No.2 (Part) in Palayadu Village in Maniyoor Grama Panchayat; and to direct the respondents not to take any action to evict him from the land assigned to him on lease for cultivation in Resurvey No.2 (Part) in Palayadu Village in Maniyoor Grama Panchayat. 2. On 20.12.2012, when this writ petition came up for admission, this Court admitted the matter on file and issued urgent notice to the respondents. This Court granted an interim stay of eviction of the petitioner from the property concerned, for a period of six weeks. The said interim order, which was extended from time to time, is extended until further orders on 28.11.2013. 3. A counter affidavit has been filed on behalf of the 2[nd] respondent opposing the reliefs sought for in this writ petition. 4. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 4 and also the learned counsel for the 5[th] respondent. 5. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P9 order dated 12.10.2012, whereby the application dated 27.12.2006 made W.P.(C)No.30774 of 2012(V) 4 by the petitioner for assignment of 50 cents of land in Resurvey No.2 (Part) in Palayadu Village in Maniyoor Grama Panchayat stands rejected on the ground that puzha puramboke, which is vested with Maniyoor Grama Panchayat cannot be assigned under the provisions of the Kerala Land Assignment Rules, in view of the provisions under Section 218 of the Kerala Panchayat Raj Act, 1994. Fuhrer, since the petitioner is holding 1½ Acres of land, he is not entitled for assignment land. 6. The pleadings and materials on record would show that, in the year 1968, puzha puramboke having an extent of 50 cents in Palayad Village was given on lease to the petitioner, who is an ExServiceman, by the Tahsildar, Vatakara, for cultivating paddy. Contrary to the terms and conditions of lease, the petitioner cultivated coconut trees in that property. The Revenue Department collected lease rent from the petitioner till 1994 and thereafter, Maniyoor Grama Panchayat collected lease rent from the petitioner till 1996. The petitioner made application before the Director of Panchayats for assignment of land. By Ext.P1 order dated 9.2.1987 of the Director of Panchayats, permission was granted for assignment of 60 cents of puzha puramboke comprised in W.P.(C)No.30774 of 2012(V) 5 Re.Sy.No.110 of Palayadu Village to Sri T.N. Narayanan, an ExServiceman. By Ext.P2 order dated 30.07.1987 of the Director of Panchayats, permission was granted for assignment of 120 cents in Resurvey No.2 (Part) of Palayadu Village to Sri K.Sreedharan Nambiar, another Ex-Serviceman. As evident from Ext.P3, the Committee of Maniyoor Panchayat, vide decision No.59 dated 20.03.1986, decided to assign 50 cents of puramboke land in Resurvey No.2 (Part) of Palayadu Village to the petitioner, after obtaining permission from the Director of Panchayats. The Executive Officer of Maniyoor Panchayat submitted Ext.P4 report dated 03.12.1987 before the Director of Panchayats, pointing out that the petitioner has been remitting tax since 1969 and that, by Exts.P1 and P2 orders of the Director of Panchayats the Panchayat was permitted to assign puramboke land to two Ex-Servicemen. 7. The petitioner submitted a representation dated 13.11.1987 before the Minister for Local Administration seeking assignment of 50 cents of puramboke land in Resurvey No.2 (Part) of Palayadu Village. By Ext.P5 communication dated 15.01.1988 of the 2[nd] respondent, the petitioner was informed that, his application for assignment of land will be placed before the new Committee of W.P.(C)No.30774 of 2012(V) 6 Maniyoor Panchayat after the Panchayat election. As evident from Ext.P6, the Committee of Maniyoor Panchayat, vide decision No.363 dated 18.12.1990, resolved to inform the Director of Panchayats its consent to assign the puramboke land to the petitioner. The petitioner filed W.P.(C). No.21214/2007 before this Court, seeking consideration of his representation dated 27.12.2006 filed before the Government for effecting transfer of the land. That writ petition was disposed of by Ext.P7 judgment dated 11.06.2012, whereby the Secretary of the Local Administration Department to consider that representation and pass appropriate orders thereon, within 3 months, after affording the petitioner an opportunity of being heard. The petitioner was called for a personal hearing on 14.09.2012, vide notice dated 01.09.2012. The Deputy Director of Panchayaths, Kozhikode, submitted Ext.P8 report dated 10.09.2012 to the Principal Secretary, Local Self Government Department, stating that the petitioner is eligible for assignment of land and that, he had been cultivating in the said land. However, by Ext.P9 order dated 12.10.2012, the 2[nd] respondent rejected the application made by the petitioner for assignment of land for the reasons stated therein. W.P.(C)No.30774 of 2012(V) 7 8. In Ext.P9 order dated 12.10.2012 the 2[nd] respondent has stated that 50 cents of land in Resurvey No.2 (Part) of Palayadu Village, which is vested with Maniyoor Grama Panchayat cannot be assigned under the provisions of the Kerala Land Assignment Rules, in view of the provisions under Section 218 of the Kerala Panchayat Raj Act. Fuhrer, since the petitioner is holding 1½ Acres of land, he is not entitled for assignment land. The fact that the petitioner is holding 1½ Acres of land in his name is not in dispute. The petitioner would point out that, Sreedharan Nambiar and Narayanan, the Ex-Servicemen who are the beneficiaries of Exts.P1 and P2 orders are holding 2.5 Acres and 2 Acres land respectively, apart from the puramboke land assigned. 9. In the counter affidavit filed by the 2[nd] respondent it is pointed out that, the petitioner was given on lease 50 cents of puzha puramboke in Resurvey No.2 (Part) of Palayadu Village for paddy cultivation. However, the petitioner cultivated coconut trees in that property. The Committee of Maniyoor Grama Panchayat took a decision, on 1.11.2010, to evict persons who have not returned the puramboke land after the expiry of the lease agreement. As per Section 218 of the Kerala Panchayat Raj Act, there is no provision to W.P.(C)No.30774 of 2012(V) 8 assign puramboke land vested in the Grama Panchayat. As per Rule 12 of the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005, the Panchayat shall not sell, transfer, alienate, create any encumbrance on or otherwise disposed of, any property transferred to it by the Government. In the counter affidavit, it is pointed out that, out of 395 acres of river puramboke vested in Maniyoor Grama Panchayat, majority of the land is in the possession of persons who had taken the land on lease. 10. The Kerala Land Assignment Act, 1960 (for brevity, 'the Act') was enacted to regulate the assignment of Government lands and to remove doubts as to the validity of the limitations and restrictions imposed in assignments of land by the Government or under their authority. Clause (1) of Section 2 of the Act reads thus; - “(1) The following, that is to say:- - (i) all public roads, streets, lanes and paths, the bridges, ditches, dykes and fences on or beside the same; - (ii) the bed of the sea and of harbours and creeks below high water mark, the beds and banks of rivers, streams, irrigation and drainage channels; - (iii) all canals, tanks, lakes, back-waters and water courses; - (iv) all land wherever situated, save in so far as the same are the property of- W.P.(C)No.30774 of 2012(V) 9 - (a) jenmis or holders of Inams; or - (b) holders of land in any way subject to the payment of land revenue to the Government; or - (c) any other registered holder of land in proprietary right; or - (d) any person holding land under grant from the Government otherwise than by way of lease or licence; or - (e) any person claiming through or holding under any of the persons referred to in clause (a), (b), (c) or (d), **are, and** are hereby declared to be, Government lands except as may be otherwise provided by any law for the time being in force, subject to all rights of way and other public rights and to the natural and easement rights of other land owners and to all customary rights legally subsisting. Explanation I.- Land registered in the name of a person but subsequently abandoned or relinquished and all lands held by right of escheat, purchase, resumption, reversion or acquisition under the Land Acquisition Act for the time being in force as Government lands within the meaning of this sub-section. Explanation II.- In this sub-section the expression 'high water mark' means the highest point reached by the ordinary spring tide at any season of the year.” As per clause (2) of Section 2, in this Act, unless the context otherwise requires, (a) 'assignment' includes a transfer of land by W.P.(C)No.30774 of 2012(V) 10 way of lease and a grant of licence for the use of land; (b) 'assignee' includes his heirs; (c) 'prescribed' means prescribed by rules made under this Act. 11. Section 3 of the Act deals with assignment of Government land. As per sub-section (1) of Section 3, Government land may be as signed by the Government or by any prescribed authority either absolutely or subject to such restrictions, limitations and conditions as may be prescribed. As per sub-section (2), no Government land assignable for public purpose may be assigned under sub-section (1) without consulting the local authority as defined in the Kerala Panchayat Raj Act, 1994 or the Kerala Municipality Act, 1994 as the case may be and if such local authority required such land, for carrying out any of the functions assigned to it, Government may set apart such land for that purpose. As per Explanation to Section 3, any restriction as to alienation, whether voluntary or otherwise, of the rights of the assignee, shall, be a restriction within the meaning of this section. 12. Kerala Land Assignment Rules, 1964 (for brevity, 'the Rules') made by the State in exercise of the powers conferred under Section 7 of the Kerala Land Assignment Act, 1960 and in W.P.(C)No.30774 of 2012(V) 11 supersession of the Rules of assignment of Government lands issued under notifications I and II G.O.(Press)No.1029/Rev. Dated 18.10.1958, published in the Kerala Gazette Extra Ordinary No.107. Clause (c) of Rule 2 define 'assignment' to mean transfer of land by way of registry and includes a lease and a grant of licence for the use of the land. Clause (cc) of Rule 2 define 'encroachment not considered objectionable' to mean encroachment on Government land, which is available for assignment, by a person or a family eligible to get land, on registry under these rules. Clause (cd) of Rule 2 define 'beneficial enjoyment' to mean the enjoyment of land for purposes like providing approach road to the assignee's registered holding and protection of his watercourse, standing crops and buildings. Clause (d) of Rule 2 define 'family' to include a person, his wife or her husband, their children living with or dependent on them and also the parents who are solely dependent on such person. As per clause (e) of Rule 2, 'Government lands' shall, for purposes of these rules, consist of lands belonging to Government and available for assignment as per lists prepared by the Revenue Department and approved by the competent authority under these rules and such other lands as may be set apart for W.P.(C)No.30774 of 2012(V) 12 ## purposes of these rules. 13. As per Rule 3 of the Kerala Land Assignment Rules, assignment of land under these rules shall be without auction. As per Rule 4, which deals with purposes for which land ay be assigned, Government lands may be assigned on registry for purposes of personal cultivation, house-sites and beneficial enjoyment of adjourning registered holdings. Rule 5 deals with maximum limit to be assigned for cultivation. As per sub-rule (1) of Rule 5, the extent of land that shall be registered in favour of a single family for personal cultivation by members of the family shall not ordinarily exceed, (a) in the case of unoccupied lands, one acre of land whether wet or dry, in the plains and one acre of wet land or three acres of dry land in hilly tracts; (b) in the case of lands held on lease whether current or time expired or by way of encroachment not considered objectionable, (i) where there are no valuable improvements effected on the land by the occupant, one acre of land, whether wet or dry, in the plains and one acre of wet land or three acres of dry land in hilly tracts; (ii) where there are valuable improvements effected on the land by the occupant two acres of land wet or dry in the plains and two acres, of wet land or W.P.(C)No.30774 of 2012(V) 13 four acres of dry land in hilly tracts. As per Note to sub-rule (1) of Rule 5, in the case of occupied lands and lands held on lease, whether current or time expired or by way of encroachment not considered objectionable, where the occupant has not effected valuable improvements on the lands, one acre of wet land in the plains shall be deemed to be equivalent to one acre of dry land, and one acre of wet land in the hilly tracts shall be deemed to be equivalent to three acres of dry land and in the cases of lands held on lease whether current or time expired or by way of encroachments not considered objectionable where the occupant has effected valuable improvements on the, lands, one acre of wet land in the plains shall be deemed to be equivalent to one acre of dry land and one acre of wet land in the hilly tracts shall be deemed to be equivalent to two acres of dry land. As per sub-rule (2) of Rule 5, when a family owns or holds any land over which it has proprietary right or has security of tenure, only the balance of extent of Government land necessary to make up the extent admissible under sub-rule (1) shall be granted to it on registry. 14. As per clause (i) of Explanation to Rule 5, for the purposes of this rule, the Taluks and Villages enumerated in clauses W.P.(C)No.30774 of 2012(V) 14 (a) to (i) shall be treated as hilly tracts. As per clause (ii) of Explanation, 'valuable improvements' shall mean improvements by cultivation of tea, coffee, rubber, cardamom, arecanut, pepper or coconut or by way of construction of contour bunds or kayal bunds or by way of construction of buildings. As per clause (iii) of Explanation, for the purpose of calculating the extent of land that may be assigned to a family, the total extent of land possessed or held with proprietary right or fixity of tenure by the head of the family and also the members of the family both individually and collectively shall be taken into account. Assignment made in favour of a family under these rules shall, for the purpose of calculating the maximum extent that may be so assigned, include assignment made to members of the family both individually and collectively, the total extent so assigned not exceeding the maximum area that may be assigned to that family. The area under encroachment by a member of a family shall, for the purpose of these rules, be deemed as the area under encroachment by the family. 15. Rule 7 of the Rules deals with priority to be observed in assignment. As per sub-rule (1) of Rule 7, where any person is in occupation of Government lands under lease, whether current or W.P.(C)No.30774 of 2012(V) 15 time expired, or by way of encroachment not considered objectionable such land if such occupation is before the 1[st] day of August, 1971 shall be assigned to him on registry. As per the first proviso to sub-rule (1), the total extent of land, if any, owned or held by him in proprietary right or with security of tenure is less than the limits laid down in sub-rule (1) of Rule 5 or the annual family income from sources other than the Government land held by him is below Rs.1,00,000. Sub-rule (1) of Rule 7, after its substitution vide G.O.(P) No.60/2017/RD dated 17.08.2017, published as SRO No.621/2017 in Kerala Gazette Ext. No. 2199 dated 10.10.2017, provides that the total extent of land, if any, owned or held by him in proprietary right or with security of tenure is less than the limits laid down in sub-rule (1) of Rule 5. As per the second proviso to sub-rule (1), in the case of any land set apart for assignment on registry to the members of Scheduled Caste/Scheduled Tribe and subsequently encroached upon by those persons who are landless and eligible for assignment of land under these Rules, such land may be assigned to such encroachers, only after setting apart equal extent of other suitable unoccupied area for the members of Scheduled Caste/Scheduled Tribe Community. W.P.(C)No.30774 of 2012(V) 16 As per sub-rule (2) of Rule 7, in the case of unoccupied lands, the following order of preference shall be observed in granting registry:- “(i) First Preference.- for persons who do not own or hold any land either in proprietary right or with security of tenure and whose annual family income does not exceed Rs.75000/-: Provided that in assigning lands under this clause ten per cent of the area shall be assigned to Ex-servicemen and not less than twenty five per cent of the area shall be assigned to the members of the Scheduled Castes and Scheduled Tribes subject to availability of applicants. Explanation:- For the purposes of this clause, a Kudikidappukaran or the holder of a Kudiyiruppu shall be deemed to be a person who does not own or hold any land; (ii) Second preference.- for persons who do not own or hold any land either in proprietary right or with security of tenure who are disabled while in active military service or who are dependents of those who are killed or disabled while in active military service; (iii) Third Preference.- for small holders who have not been able to resume their lands due to expiry of the time for applying for resumption and whose annual family income does not exceed Rs.1,00,000/-. Explanation:- For the purposes of this clause, "small holder" means a small holder as defined in the Kerala Land Reforms Act, 1963 (1 of 1964); (iv) Fourth Preference.- for serving military personnel with W.P.(C)No.30774 of 2012(V) 17 an approved service of not less than three years and who are decorated for gallantry or their dependents who do not own or hold any land either in proprietary right or with security of tenure; Provided that in the absence of applications from such military personnels as aforesaid, the applications of other serving Military personnel with an approved service of not less than 10 years, and who do not own or hold any land either in propriety right or with security of tenure shall be considered. (v) Fifth Preference.- for persons whose annual family income does not exceed Rs.1,00,000/- and the total extent of the lands owned or held by them either in proprietary right or with security of tenure is less than the extent prescribed in these rules.” 16. As per sub-rule (3) of Rule 7, no registry shall be granted to any family in occupation of Government land either under a lease, current or time expired or by way of encroachment, unless it surrenders to Government, without claiming any compensation, the land in excess of the extent proposed to be registered in its favour. If there is excess land, in its possession and if is not willing to surrender the excess land eviction will be resorted to. 17. In **Varkey Abraham v. Secretary to Government, Revenue Department and others [2007 (3) KHC 365]** a W.P.(C)No.30774 of 2012(V) 18 Division Bench of this Court held that, Rule 5 of the Kerala Land Assignment Rules provides for the maximum extent of land that could be assigned on registry for purposes of personal cultivation, house sites and beneficial enjoyment of adjoining registered holdings. As per clause (b) of sub-rule (1) of Rule 5, in the case of lands held on lease, whether current or time expired or by way of encroachment not considered objectionable, the lessee or the encroacher as the case may be will be eligible for assignment of not more than 50 cents of land, whether wet or dry, in the plains, and one acre of land, whether wet or dry in hilly tracts. Land, if any, held in excess of this area shall be surrendered to Government and no compensation shall be payable for the lands so surrendered. Clause (b) of Rule 5 was substituted by the amendment which came into force on 03.03.2005. Prior to amendment, clause (b) provided for assignment of larger extents, namely, not more than one acre in the plains and not more than one acre of wet land or three acres of dry land in hilly tracts, if there are no improvements in the land, and where there are improvements effected on the land by the occupant, not more than two acres in the plains and not more than two acres of wet land or four acres of dry land in hilly tracts. It is W.P.(C)No.30774 of 2012(V) 19 stated by the petitioner that the land in question is not in hilly tracts. Therefore, the maximum extent that could be assigned, before the amendment of the Rules in 2005, is one acre or two acres, depending on the question whether the petitioner has effected valuable improvements in the land. The amended Rules would apply to any assignment after the amendment, irrespective of the date of application and therefore, the maximum extent that could be assigned to the petitioner, if he is entitled to get assignment, is not more than fifty cents of land. 18. In **Varkey Abraham** the Division Bench held that, various provisions in the Kerala Government Land Assignment Act and the Kerala Land Assignment Rules would unmistakably show that the Act and Rules are intended to protect landless people by assigning to them Government lands for cultivation and other purposes. The Act provides for assignment of Government land absolutely or subject to such restrictions, limitations and conditions as may be prescribed. The Rules provides for assignment of lands on registry for purposes of personal cultivation. The Rules also provides for granting assignment of small extents of land for constructing houses and for the beneficial enjoyment of adjoining W.P.(C)No.30774 of 2012(V) 20 registered holdings. The Rules contain provisions for extending priority to landless people, members of Scheduled Caste and Scheduled Tribes, Ex-servicemen, persons disabled in active military service, persons who are dependants of those who are killed or disabled while in active military service, small holders whose family income is less than Rs.10,000/-, certain category of kumkidars, etc. The procedure for assignment is also provided in the Rules. Provision is made for preparing the lists of lands to be reserved for Government or public purposes and the lands to be set apart for assignment on registry. The lists are to be approved by the Government or an authorized authority. The authority to approve the list of lands available for lease or license shall be District Collector. Various authorities are also provided to whom the applications under the different categories are to be submitted. The Act and Rules are not intended for enriching persons who hold extensive lands. Assignment on Registry of Government lands to such persons would defeat the very purpose of the Act and Rules. There is no vested right in any person to claim assignment on registry of Government land. The claim made by the petitioner originated and continued on encroachment. Such a person cannot W.P.(C)No.30774 of 2012(V) 21 have any legal right to claim that land. Provision for assignment of lands to encroachers is with a specific purpose. It is intended to protect such of the encroachers who are landless and downtrodden. They too have no vested right to get assignment on registry. The scheme of the Act and the Rules would unmistakably show it. Mighty people do not come anywhere near the benevolent protective umbrella of the Act and Rules. True, a person may desire to annex to his property the neighbouring lands, though it is Government land. Such a desire is not recognised or protected under the Act and Rules. 19. In **Abdul Rahim C.A. v. District Collector, Ernakulam** **and others [2013 (3) KHC 790]** a Division Bench of this Court held that, Rule 5 of the Kerala Land Assignment Rules prescribes the maximum limit of land to be assigned for cultivation. As per sub-rule (2) of Rule 5, when a family owns or holds any land over which it has proprietary right or has security of tenure, only the balance of extent of Government land necessary to make up the - extent admissible under sub rule (1) shall be granted to it on registry. As per clause (iii) of Explanation to Rule 5, for the purpose of calculating the extent of land that may be assigned to a family, W.P.(C)No.30774 of 2012(V) 22 the total extent of land possessed or held with proprietary right or fixity of tenure by the head of the family and also the members of the family both individually and collectively shall be taken into account. Assignment made in favour of a family under these rules shall, for the purpose of calculating the maximum extent that may be so assigned, include assignment made to members of the family both individually and collectively, the total extent so assigned not exceeding the maximum area that may be assigned to that family. The area under encroachment by a member of a family shall, for the purpose of these rules, be deemed as the area under encroachment by the family. Rule 5 prescribes the maximum limit of land that can be assigned for cultivation. As mentioned above, the appellant stakes the claim for two reasons, viz., personal cultivation and beneficial enjoyment of adjoining registered holdings. Rule 7 of the Land Assignment Rules mentions about the priority to be observed in the assignment. Going by the contentions raised by the appellant and also from the records produced, it is seen that the appellant's predecessor was owning 1.37 acres of land in the above survey numbers situated in Cheranallur Village. 2[nd] respondent in his counter affidavit specifically refuted appellant's W.P.(C)No.30774 of 2012(V) 23 claim for land assignment. It is the specific contention of the respondents that neither the appellant's father nor the appellant is entitled to claim assignment for the reason that the appellant's father was the registered holder of 13 ares of land in Sy.No. 533/8 and 42 ares in Sy.No. 550/10 of Cheranallur Village in Kanayannur Taluk. Hence, going by the provisions in Rule 5 of the Land Assignment Rules, it can be seen that the appellant's claim for assignment of land for cultivation is not legally sustainable. 20. In the instant case, one of the reasons stated for rejecting the request made by the petitioner for assignment of 50 cents of puzha puramboke is that, the petitioner who is holding 1½ Acres of land is not entitled for assignment land. The fact that the petitioner is holding 1½ Acres of land in his name is not in dispute. Therefore, in view of the provisions under the Kerala Land Assignment Act and the Rules made thereunder, referred to hereinbefore, the petitioner is not entitled for assignment of any puramboke land. 21. The petitioner would contend that, Sreedharan Nambiar and Narayanan, the Ex-Servicemen who are the beneficiaries of Exts.P1 and P2 orders are holding 2.5 Acres and 2 Acres land W.P.(C)No.30774 of 2012(V) 24 respectively, apart from the puramboke land assigned. Therefore, the action of the 1[st] respondent in rejecting the application made by the petitioner for assignment of 50 cents of puramboke land, by Ext.P9 order, is highly discriminatory and violative of Article 14 of the Constitution of India. 22. In **Kulwinder Pal Singh v. State of Punjab [(2016) 6 SCC 532]** the Apex Court reiterated that Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. If the State committed the mistake it cannot be forced to perpetuate the same mistake. Merely because some persons have been granted benefit illegally or by mistake, it does not confer right upon the appellants to claim equality. 23. The learned Government Pleader would point out that Exts.P1 and P2 orders were issued prior to the Kerala Panchayat Raj Act, 1994. 24. Section 218 of the Kerala Panchayat Raj Act, 1994 deals with vesting of water course, springs, reservoirs, etc., in Village Panchayats. As per sub-section (1) of Section 218, notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 or in any other law for the time being in force, all public water courses W.P.(C)No.30774 of 2012(V) 25 (other than rivers passing through more areas, than the Panchayat area which the Government may, by notification in the Gazette, specify), the beds and banks of rivers, streams, irrigation and drainage channels, canals, lakes, back waters and water courses and all standing and flowing water, springs, reservoirs, tanks cisterns, fountains, wells, kappus, chals, stand pipes and other water works including those used by the public to such an extent as to give a prescriptive right to their use whether existing at the commencement of this Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the Panchayat or otherwise, and also any adjacent land, not being private property appertaining thereto shall stand transferred to, and vest absolutely in the Village Panchayat. As per the proviso to sub-section (1), nothing contained in this sub-section shall apply to any work which is, or is connected with, a work or irrigation or to any adjacent land appertaining to any such work. As per sub-section (2) of Section 218, subject to the provisions of this Act, all rights and liabilities of the Government in relation to the water courses, springs, reservoirs, tanks, cisterns, fountains, wells, kappus, chals, stand pipes and other water works vested in the Village Panchayat under W.P.(C)No.30774 of 2012(V) 26 sub-section (1) shall from the date of such vesting, be the rights and liabilities of the Village Panchayat. 25. As per sub-section (3) of Section 218 of the Act, notwithstanding anything contained in sub-section (1) or subsection (2), the Government may, by notification in the Gazette, assume the administration of any public source of water supply and public land adjacent and appertaining thereto after consulting the Village Panchayat and giving due regard to its objection, if any. As per sub-section (4) of Section 218, it shall not be lawful for any person to remove or appropriate for himself, any tree, earth, sand, metal, laterite, limeshell or such other articles of value as may be notified by the Village Panchayat from any land which is transferred to or vested in the Village Panchayat, under this Act, whether a poramboke or not, except under and in accordance with the terms and conditions of a permit issued by the Village Panchayat in this behalf and on payment of such fees and compensation at the rate determined, by the Village Panchayat. 26. In **Thrissur Municipal Corporation v. M.A. Johny and others [2020 (1) KHC 395]** a Division Bench of this Court noticed that, as per Section 82 of the Kerala Panchayats Act, 1960, certain W.P.(C)No.30774 of 2012(V) 27 properties belonging to the Government vested with the Panchayat; without conferring any right on the Panchayat to transfer the land to any third persons. The Kerala Panchayats Act, 1960 was replaced by the Kerala Panchayat Raj Act, 1994. By virtue of sub-section (6) of Section 166 of the Kerala Panchayat Raj Act, the Government was duty bound to transfer all institutions, schemes, buildings and other properties, assets and liabilities connected with the matters referred to in the third Schedule to the Village Panchayat and every institution so transferred shall be in the name of the said village Panchayat and shall be known accordingly. Sub-section (8) of Section 166 stipulates that the Village Panchayat shall not have any power to sell, transfer, alienate or pledge the properties transferred to it. Schedule 3 of Act, 1994 deals with functions of Village Panchayats and category 'A' deals with mandatory functions. Entry '2' thereto is in relation to protection of public lands against encroachment. Entry '14' deals with protection of roads and other public properties. Therefore, consequent to the introduction of the Kerala Panchayat Raj Act, there is a clear prohibition, against the Village Panchayats from selling, transferring, alienating, pledging, - etc. of the properties transferred to it in accordance with sub W.P.(C)No.30774 of 2012(V) 28 - section (6) of Section 166 and sub section (8) of Section 166 of the Act, 1994. 27. In **M.A. Johny** the Division Bench noticed further that, in the year 1996, the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996 was formulated by virtue of the powers conferred under Section 254 of the Kerala Panchayat Raj Act, 1994. As per Rule 3, no person shall occupy any land belonging to or vested in a Panchayat without the permission of the Panchayat or not in accordance with the Act or the Rules made thereunder or except in accordance with the terms and conditions of the licence issued by the Panchayat. Sub-rule (2) of Rule 3 further stipulates that whoever occupies any land belonging to or vested in a Panchayat contrary to the provisions of sub-rule (1) shall be liable to be evicted from such unauthorised occupation and shall, in addition to the expenses thereof, be liable to pay to the Panchayat a fine not exceeding five hundred rupees as may be imposed by the Panchayat. Other stipulations are also provided under the Rules. Rule 4 deals with eviction of unauthorised occupants, which stipulates that the Panchayat shall have absolute authority to evict W.P.(C)No.30774 of 2012(V) 29 unauthorised occupants from the land belonging to or vested with the Panchayat, besides the procedure provided under sub-rules (2) to (6) of Rule 3. On such eviction if any building, crops or other products, raised on the land unauthorisedly, by the occupant that shall be forfeited to the Panchayat and the unauthorised occupant shall have no right over them. A procedure is also prescribed under the Rules for eviction of the unauthorised occupants. Thereafter, the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005 was introduced. Sub-rule (1) of Rule 8 stipulates that any property of the Panchayat not owned but vested in it may be granted on lease without violating the terms on which it was vested in it. Rule 12 clearly stipulates that the Panchayats shall not sell, transfer, alienate, create any encumbrance on, or otherwise dispose of, any property transferred to them by Government under subsection (6) of Section 166 or sub-section (5) of Section 172 or subsection (5) of Section 173 of the Act, 1994. Section 218 of the Act, 1994 which stipulates that notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 or in any other law for the time being in force, all public water courses (other than river passing through more areas, than the Panchayat area which the W.P.(C)No.30774 of 2012(V) 30 Government may, by notification in the Gazette, specify), the beds and Banks of river streams, irrigation and drainage channels, canals, lakes, back waters and water courses and all standing and flowing water, springs, reservoirs, tanks, cisterns, fountains, wells, kappus, chals, stand pipes and other water works including those used by the public to such an extent as to give a prescriptive right to their use whether existing at the commencement of this Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the Panchayat or otherwise, and also any adjacent land, not being private property appertaining thereto shall stand transferred to and vest absolutely in the Village Panchayat. In **M.A. Johny** , in the context of the provisions under the Kerala Panchayat Raj Act, 1994, the Kerala Municipality Act, 1994 and also the rules made thereunder, the Division Bench held that, in view of the prohibitions contained under the Kerala Panchayat Raj Act, 1994, the Kerala Municipality Act, 1994 and the Rules framed thereunder, the properties vested in the local bodies cannot be assigned, transferred, encumbered or alienated in any manner otherwise than permitted under law. 28. In the instant case, since the land in question is vested W.P.(C)No.30774 of 2012(V) 31 in the Maniyoor Grama Panchayat, the same cannot be assigned under the provisions of the Kerala Land Assignment Act and the Rules made thereunder, in view of the statutory provisions referred to hereinbefore and also the law laid down in the decision referred to supra. 29. The learned Government Pleader would point out that no assignment of puzha puramboke is legally permissible, in view of the law laid down by the Apex Court in **Sarvepalli Ramaiah v. District Collector, Chittoor District [2019 (4) SCC 500]** . 30. In **Sarvepalli Ramaiah** , it was noticed that, the Apex Court has time and again emphasised the need to retain and restore water bodies and held that water bodies are inalienable. Land comprised in water bodies cannot be alienated to any person even if it is dry. In the said decision, reference was also made to its earlier judgments in **M.C. Mehta (Badkhal and Surajkund Lakes Matter) v. Union of India [(1997) 3 SCC 715]** ; **Susetha v. State of Tamil Nadu [(2006) 6 SCC 543]** and **Intellectuals Forum v. State of Andhra Pradesh [(2006) 3 SCC 549]** . 31. When the land in question having an extent of 50 cents in Resurvey No.2 (Part) in Palayadu Village is puzha puramboke, it W.P.(C)No.30774 of 2012(V) 32 cannot be assigned to the petitioner, in view of the law laid down by the Apex court in the decisions referred to supra. 32. Therefore, this Court finds no valid grounds to interfere with reasoning of the 1[st] respondent in Ext.P9 order dated 12.10.2012, whereby the application made by the petitioner for assignment of 50 cents of river puramboke in Resurvey No.2 (Part) in Palayadu Village in Maniyoor Grama Panchayat stands rejected. In the result, this writ petition fails and the same is accordingly dismissed. No order as to costs. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** AV W.P.(C)No.30774 of 2012(V) 33 ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : TRUE COPY OF ORDER NO.C 3.39346/86 DT.09.02.1987 BY THE DIRECTOR OF PANCHAYATHS EXT.P2 : TRUE COPY OF ORDER NO.C 3 24662/86 DT.30.07.1987 BY THE DIRECTOR OF PANCHAYATHS EXT.P3 : TRUE COPY OF DECISION OF MANIYOOR PANCHAYATH DT.20.03.1986 EXT.P4 : TRUE COPY OF THE REPORT OF MANIYOOR PANCHAYATH FORWARDED TO DIRECTOR OF PANCHAYATHS DT.03.12.1987 EXT.P5 : TRUE COPY OF COMMUNICATION DATED 15.01.1988 EXT.P6 : TRUE COPY OF DECISION OF MANIYOOR PANCHAYATH DT.18.12.1990 EXT.P7 : TRUE COPY OF JUDGMENT DATED 11.06.2012 IN WP(C)21214 OF 2007 EXT.P8 : TRUE COPY OF REPORT OF DY.DIRECTOR OF PANCHAYATHS.KOZHIKODE DT.10.09.2012 EXT.P9 : TRUE COPY OF ORDER NO.2864/2012 DT.12.10.2012 BY THE 1ST RESPONDENT** **RESPONDENTS' EXHIBITS : NIL**