IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 WA.No. 2238 of 2008 ----------------------------- AGAINST THE JUDGEMENT IN WPC.26101/2008 .................... APPELLANT/PETITIONER: -------------------------------------- P.J.MATHEW, PUNNAPUZHA HOUSE, SOUTH PARUR.P.O, ERNAKULAM DIST. BY ADV. SRI.R.D.SHENOY (SR.) SRI.ROY CHACKO RESPONDENT/RESPONDENTS: ------------------------------------------- 1. THE COMMISSIONER FOR LAND REVENUE, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM-695033. 2. THE DISTRICT COLLECTOR, COLLECTORATE.PO, KOTTAYAM. 3. THE TAHSILDAR, TALUK OFFICE, VAIKOM. 4. CHEMBU GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, BRAHMAMANGALAM.P.O. BY SENIOR GOVT. PLEADER SMT.K.MEERA. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L. DATTU, C.J. & A.K. BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 2238 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2008 Judgment Basheer, J: Is the decision of the Government in rejecting the application of the appellant for assignment of 1.25 acres of Kayal Poramboke land under the Kerala Land Assignment Act, 1960 and the Rules framed thereunder, illegal and vitiated? 2. The above question was answered in the negative by the learned single Judge. Hence this writ appeal. 3. Relevant facts may be briefly noticed. 4. Appellant claims that he and his son had purchased a total extent of 3.87 acres of land in Sy.No.282/1A of Chembu Village in Kottayam District in the year 1979 from Smt.T.K.Radhamani Amma, who had got the above land assigned in her favour from the Government in 1969. The Village Officer, Chembu had issued pattayam No.343 to Smt.Radhamani Amma in respect of the above land. According to the appellant, he owns 1.37 acres out of the total extent of 3.87 acres and the remaining extent belongs to his son. It is the case of the appellant that out of the 1.37 acres of land in his ownership and possession, 1.25 acres is “kayal poramboke” WA.2238/2008 : 2 : described as “virivu” land in the assignment deed of 1979. The said extent of “Kayal poramboke” was bounded by mud wall bund on the west and on the south separating it from the kayal. Appellant contended that the said “encroached” area was in the actual cultivation of Smt.Radhamani Amma at the time when it was purchased by him and his son. 5. Appellant had submitted Ext.P1 application on August 13, 1981 before the Tahsildar, Vaikom for assignment of the above mentioned 1.25 acres in his favour under the Land Assignment Act, 1960 and the Rules framed thereunder (for short the Act and the Rules). The Tahsildar had completed the procedural formalities like publication of notice, holding of enquiry etc. But according to the appellant nothing materialised. Therefore in January 1985 appellant submitted a representation before the Minister for Revenue, Government of Kerala seeking appropriate action in the matter. Subsequently the appellant had furnished Ext.P3 consent letter/declaration as directed by the Revenue Authorities undertaking that he was prepared to remit the market value for the land, if it was assigned in his favour. By Ext.P4 proceedings dated May 4, 1987 the District Collector, Kottayam informed the Tahsildar that 1.25 acres, in respect of which the appellant WA.2238/2008 : 3 : had requested for assignment, had been included in the approved list of kayal poramboke land available for assignment under the Act and the Rules. 6. However, later the the proposal for assignment was returned by the Board of Revenue, Trivandrum to the District Revenue Authorities with a direction that the market value as on the date of assignment had to be realised from the assignee and not the value of any anterior date. 7. According to the appellant the Tahsildar initiated de novo proceedings thereafter in 1995 and invited objections from the public against the proposal for assignment as provided under Rule 12(1) of the Rules. The local Grama Panchayat took exception to the proposal and contended that the appellant was not entitled to get any assignment, not only for the reason that he and his family were in possession of large extent of land but also since the proposed land was earmarked by the Panchayat for distribution among landless people. 8. Pursuant to the above decision taken by the Panchayat through a resolution, the District Collector directed the Tahsildar to keep the proceedings in abeyance. Accordingly the Tahsildar issued Ext.P7 communication to the appellant informing him that his request for WA.2238/2008 : 4 : assignment had been kept in abeyance in view of the objection raised by the Panchayat. The above action of the Panchayat was questioned by the appellant before this Court in O.P.No.11948 of 1997. 9. The above Original Petition was disposed of by this Court directing the District Collector to take a fresh decision in the matter after hearing the appellant as well as the authorities of the local Panchayat. Pursuant to the above direction, the District Collector heard the parties and issued Ext.P11 order rejecting the application submitted by the appellant for assignment of land. The above order of the District Collector was confirmed in appeal by the Commissioner of Land Revenue , in Ext.P14 order. 10. The above two orders (Exts.P11 and P14) were challenged by the appellant before the learned single Judge under Article 226 of the Constitution praying, inter alia, for a direction to the Tahsildar to grant assignment of the land to the appellant as requested in Ext.P1. 11. The learned single Judge concurred with the view taken by the two statutory authorities and held that the appellant would not fall within the category of eligible persons for assignment as provided under the Act WA.2238/2008 : 5 : and the Rules. Accordingly the writ petition was dismissed. The above order of the learned single Judge is under challenge in this writ appeal. 12. As noticed already, the appellant had applied for assignment of kayal poramboke land. “Poramboke” as defined under the Land Conservancy Act 1957 “shall mean and include unassessed lands which are the property of Government under Section 3(1) or (2) used or reserved for public purposes or for the communal use of villagers such as the beds and banks of rivers, irrigation and drainage channels, traffic canals, tanks, lakes, back-waters and water courses. Kayal poramboke is Government land partly submerged, in or forming part of backwaters, tanks, streams, water bodies etc. The land which was sought to be assigned in favour of the appellant is stated to be situated in Vembanattu Kayal. 13. Sri.R.D.Shenoy, learned senior counsel appearing for the appellant submits that the application for assignment being in respect of a land which was admittedly included in the list available for assignment by the District Collector, it ought to have been allowed by the revenue authorities. While referring to Rule 2(cc) which defines “encroachment not considered objectionable”, he points out that the District Collector under WA.2238/2008 : 6 : Ext.P4 proceedings had included the land in question, in the list of assignable lands. Learned senior counsel further points out that the Revenue Authorities having already obtained a consent letter from the appellant regarding his willingness to deposit the land value way back in 1987 as revealed from Ext.P3, it was totally unnecessary and impermissible to have called for objections afresh under Rule 12(1) of the Rules. It is also contended that Rule 6(2) of the Rules has no application as held by the learned single Judge. The other contention raised by the learned senior counsel is that the land in question had not vested in the Panchayat as erroneously held by the Land Revenue Commissioner in Ext.P14 order. 14. One of the reasons which persuaded the statutory authorities to reject the application for assignment was that the appellant and his family were admittedly in possession of considerably large extents of land in the same village and within the limits of Chembu Grama Panchayat. As has been noticed already, it was admitted by the appellant himself that he and his son had purchased 3.87 acres of land from Smt.T.K.Radhamani Amma in 1979 on the strength of two registered assignment deeds. According to the appellant, he owns and possesses 1.37 acres, while his son is entitled to WA.2238/2008 : 7 : the remaining extent of 2.50 acres. Admittedly the Government had issued patta in favour of Smt.Radhamani Amma in respect of the land assigned by her to the appellant and his son. But going by the averments in the writ petition and the appeal memorandum, the case of the appellant appears to be that he had encroached into some kayal poramboke land and planted it with improvements, in respect of which he had submitted Ext.P1 application. It is averred by the appellant in the writ petition that out of the 1.37 acres purchased by him, 1.25 acres is classified as kayal poramboke and described as “virivu” in the assignment deed. Appellant further proceeds to state that “the encroachment with respect to this extent of land is not considered to be objectionable in terms of Rule 2(cc) of the Rules”. Obviously the pleadings will unambiguously show that the land that is sought to be assigned to the appellant appears to be the one which he had purchased from Smt.Radhamani Amma, who admittedly had obtained patta from the Government. 15. But more significantly, in Ext.P1 application submitted by the appellant in 1981, he had stated that he was in possession of the land sought to be assigned to him for the last 18 years. But the specific case of WA.2238/2008 : 8 : the appellant in the writ petition is that soon after the purchase of the land from Smt. Radhamani Amma in 1979, he had put up rubble bund around the property to withstand the tides from the kayal (backwaters) and consequent erosion and thus made “the encroachment area a very well improved coconut garden”. Therefore obviously the information furnished by the appellant in Ext.P1 application in the year 1981 that he had been in possession of the encroached area for more than 18 years was obviously erroneous and misleading. 16. It is also significant to note that in Ext.P1 application the appellant had himself admitted that he was in possession of 11 acres of land at the time of submitting the application. In this context it has to be noticed that the Land Revenue Commissioner had referred to the report of the District Collector stating that the appellant and his family owned huge extent of land in Chembu Village, the details of which were enumerated in the order itself. We have referred to the above aspects only to indicate that the appellant had not approached the statutory authority for assignment with clean hands. 17. We have referred to the above aspect for yet another reason also. WA.2238/2008 : 9 : It was contended by the learned senior counsel that Rule 6(2) of the Rules will have no application, since the appellant could be considered to be in possession of only 12 cents out of 1.37 acres, if the encroached area of 1.25 acres is excluded. We are unable to comprehend the rationale of the above contention. As has been mentioned already, even according to the appellant, he and his son had purchased the patta land from Smt.Radhamani Amma in 1979. Therefore it cannot be contended by the appellant that he was not in possession of large extent of land including the other holdings as found by the statutory authorities. Rule 6(2) of the Rules postulates that the extent of Government land that may be granted on registry when the same is indispensably required for the beneficial enjoyment of adjoining registered holdings shall not exceed fifteen cents. Therefore obviously the appellant was not entitled to get assignment of the land as requested by him. Going by the provisions contained in Rule 5 of the Rules also, the appellant will not be entitled to get more than fifty cents, and that too for personal cultivation meaning thereby that assignment can be granted only to people who do not hold any land. 18. The local Grama Panchayat had passed Ext.P8 resolution raising WA.2238/2008 : 10 : objection to the proposal for assignment of the land to the appellant. In Ext.P8 resolution the Panchayat had pointed out that the appellant was not a resident of the locality. Further, he had been holding a high post in the Government service earlier and he and his family were holding large extents of land. It was further pointed out by the Panchayat that the kayal poramboke land in question had already been earmarked for distribution among the landless people residing in the Panchayat who did not own even one cent of land to make a home. This resolution was passed by the Panchayat when it came to know about the notice issued by the Tahsildar under Rule 12(1) of the Rules while considering the application for assignment submitted by the appellant. 19. It is contended by the learned senior counsel that mere possession of some land will not disentitle the appellant to claim assignment under the Act and the Rules. The contention of the learned senior counsel is that so long as the appellant is not in possession of excess land as contemplated under the Kereala Land Reforms Act , it cannot be said that he would be disentitled to get assignment. The above contention, in our view, is wholly untenable and totally misconceived. As rightly WA.2238/2008 : 11 : pointed out by the Grama Panchayat, the appellant who is admittedly affluent and who is in possession of considerably large extent of land cannot seek the benefit of the benevolent provisions of the Act and the Rules in preference to thousands of landless poor people of the Panchayat. 20. The other contention raised by the learned senior counsel is that the land in question is not vested in the Panchayat by virtue of Section 218 of the Kerala Panchayat Raj Act, 1994. We are unable to agree, since a perusal of the provisions contained in the said section will undoubtedly show that the above contention is wholly untenable. Learned senior counsel has made a vain attempt to contend for the position that the amended provision of the Panchayat Raj Act cannot be looked into since the appellant had submitted the application in 1981, before the amended Act came into force in 1994. The above contention is also wholly untenable in view of Section 82(1) of the Panchayat Act, 1960 read with Section 218 of the amended Act. It is on record that the application submitted by the appellant was taken up for consideration in 1995 as directed by the Revenue Board and the Tahsildar had issued Rule 12(1) notice calling for objections, if any, from the public against the assignment. In that view of the matter, also the WA.2238/2008 : 12 : contention raised by the appellant that Section 218 of the Panchayat Act did not have any application, cannot be sustained. 21. We have carefully perused the entire materials available on record including the two orders passed by the statutory authorities. We do not find any illegality or irregularity in the view taken by the statutory authorities. The learned single Judge, in our view, had rightly upheld the orders passed by the statutory authorities. We are unable to see any reason to interfere with the order passed by the learned single Judge. Therefore while confirming the judgment of the learned single Judge, the Writ Appeal is dismissed. H.L. DATTU Chief Justice A.K. BASHEER Judge an.