IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 WP(C).No. 24300 of 2007(P) -------------------------- PETITIONER(S): --------------- DAYANANDA S. SOMESHWARA, S/O SOMAPPA SOMESHWARA,THALAPPADY SERVICE STATION, THALAPPADY, MANGALORE TALUK. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, KASARGODE. 3. THE REVENUE DIVISIONAL OFFICER, KASARGODE. 4. THE TAHSILDAR, KASARGODE. GOVERNMENT PLEADERSRI. K. RAMESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C. NO. 24300/2007 --------------------------------------------------------------------- EXT.P1 TRUE COPY OF CERTIFICATE ISSUED BY IBP CO. LTD. EXT.P2 COPY OF LEASE ORDER. EXT.P3 NOTICE DT. 10-4-1995. EXT.P4 JUDGMENT IN O.P.NO. 3983/1985. EXT.P5 PROCEEDINGS DT. 15-9-1989. EXT.P6 PROCEEDINGS DT. 28-11-1990. EXT.P7 TRUE COPY OF REPRESENTATION. EXT.P7(a) REPRESENTATION DT. 2-1-2002. EXT.P7(b) DO DT. 15-7-2005. EXT.P8 INTIMATION DT. 7-1-2002. EXT.P8(a) INTIMATION DT. 2-2-2006. EXT.P8(b) INTIMATION DT. 19-6-2006 EXT.P9 TRUE COPY OF EYE SKETCH. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 24300 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 2nd day of June, 2010. J U D G M E N T The petitioner is in occupation of certain Government land. Proceedings have been initiated under the Land Conservancy Act for evicting him from that land. He lost before the Sub Collector, who passed Ext. P5 order confirming the order of eviction. The petitioner filed a revision before the District Collector, in which the District Collector passed Ext. P6 order, the operative portion of which reads thus: “In view of the above facts I feel there is no harm in assigning the land to the petitioner by collecting market value and order accordingly. In the result, the revision petitioner is allowed and order of the Revenue Divisional Officer stands modified to the above extent. The stay granted is hereby vacated.” In view of that order, the petitioner seeks assignment of the land for which purpose he has filed this writ petition seeking the following reliefs: “(a) Issue a writ of mandamus or any other appropriate writ, order or direction, directing respondents 2 and 4 to process and finalize the steps for assignment of Government land – 21 cents comprised in R.S.No. 16/2 (16/1 Pt.) to the petitioner as ordered by Ext. P 6 i.e by fixing the market value payable by the petitioner for assignment of the subject land as expeditiously as possible and in any event within a short time being fixed by this Hon'ble Court. (b) Issue a writ of mandamus or any other appropriate writ, order or direction, forbearing respondents 2 and 4 from attempting to dispossess the petitioner from the subject land - comprised in R.S.No. 16/2 (16/1 Pt.).” 2. A counter affidavit has been filed by respondents 2 and 4 in which in paragraphs 5 to 8 it is stated thus: W.P.C. No. 24300/2007. -: 2 :- “5. It is admitted that notice under the KLC Act was issued to the petitioner on 10-4-1985 directing him to vacate the Government land measuring 0.21 acres in R.S. No. 16/2 encroached by him or else he will be summarily evicted from the land. Actually, the petitioner is occupying the land already leased out to him by the deputy Commissioner, D.K., Manglore and the land encroached by him is in the Kerala state. Hence his version that he has unknowingly constructed well and other things in the land allotted to him is false. Even after receiving the eviction order he has not approach the appellate authority that is the Revenue Divisional Officer with appeal as stipulated in KLC Act and rules. 6. Instead of approaching the Revenue Divisional Officer , on the very same issue the petitioner approached this Honourable Court in O.P.No. 3983/1985. By the judgment dated 18.3.88 this honourable Court has directed the petitioner to file appeal under Section 16 of the KLC Act before the Revenue Divisional Officer within a period of one month from the date of issue of the judgment. Accordingly, he filed an appeal before the Revenue Divisional Officer, Kasaragod and it was disposed by the Revenue Divisional Officer in proceedings No. D.Dis 10071/89 (KCA.21/88) dated 15-9-1989 with the observation that the encroached portion of the land can be leased out to the petitioner temporarily in consultation with the executive Engineer, National Highway. The petitioner was directed to file application for lease before the Tahsildar, Kasaragod. Instead of filing the lease application as per the direction of the appellate authority, he approached the District Collector, Kasaragod with a revision petition against the order d. 15-9-1989 of Revenue Divisional Officer, Kasaragod. The District Collector, Kasaragod finalized the revision petition as per proceedings No. D.Dis 5375/89/C4 dated 28-11-1990 allowing the petition. District Collector observed that there is no harm in assigning the land in question to the petitioner by collecting market value. But the assignment proposal as per the above order has not been finalized due to the objection raised by the PWD authorities. Since the land is registered as Local Fund Road Puramboke, consent of the PWD authority is essential in this case. Hence the proposal for the assignment of land was returned for want of consent from the competent authorities. As per the Panchayat Raj Act, 1994 this land is also vested with Panchayat and the Government has not considered puramboke land for assignment. In the Government letter No.75246/L2/98/Rev. dated 24.1.2001, it has been directed not to submit assignment proposal in respect of puramboke land until further orders. Based on the judgment issued by the Honourable court in O.P. 1577/92 W.P.C. No. 24300/2007. -: 3 :- Government issued circular No. 4411802/01/RD dated 7-8-2001. In which it has been instructed that proposals for assignment of Government/Puramboke lands in favour of persons, associations, organisations which do not involve public interest are not recommended in future. Hence the proposal for assignment of the above mentioned land in favour of the petitioner was not materialized in the light of the above mentioned orders. As and when fresh direction are received from the Government in the matter of assignment of puramboke land on realizing market rate the case of the petitioner can be considered as afresh. 7. The grievances of the petitioner is that the authorities have informed him that the file concerned to this case is missing in the office is baseless. Nobody in the office is informed the petitioner that the files are missing. But due to the present Government policies there is no scope to get assignment of puramboke land on realizing the market rate especially on considering the fact that assignment was also objected by the PWD authorities. The second and 4th respondents are acting and also bound to act as per the directions of the Government, in this case also their stand is based on the Government directions. Contention raised by the petitioner are against the facts and not sustainable. 8. As and when the Government reconsider the norms and conditions of assignment of puramboke land and when the petitioner receives concurrence of the PWD authorities this request of the petitioner for assigning puramboke land after realizing market value can be considered.” 3. I have considered the rival contentions in detail. 4. I am at a loss to understand how in proceedings under the Land Conservancy Act, the District Collector can direct assignment of land to the petitioner by collecting market value. The learned Government Pleader would submit that only the Government can pass orders granting assignment of land after collecting market value. Whatever that be, I am of opinion that the 1st respondent should take a decision in this matter as to whether the land should be assigned to the petitioner or whether he should be evicted under the land W.P.C. No. 24300/2007. -: 4 :- conservancy proceedings. Accordingly, I direct the 1st respondent to consider this question and pass orders thereon after affording an opportunity of being heard to the petitioner as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/