IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 OP.No. 16927 of 1999(M) ---------------------------------- PETITIONER: ------------------- P.M. SUKUMARAN, S/O. T.R. GOVINDAN, THANAYATH HOUSE, AMBALAVAYAL, SULTHAN BATHERY TALUK. BY ADV. SRI.SUBHASH CYRIAC. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, WAYANAD. BY GOVERNMENT PLEADER SMT. N. SUDHADEVI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 27630/1999 IN O.P. NO. 16927/1999-M DISMISSED 16/01/2008. SD/- K.M.JOSEPH, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE ORDER DTD. 28/02/1980 OF THE ADMINISTRATIVE OFFICER, AMBALAVAYAL. EXT.P.2: COPY OF THE NOTICE NO. L2-10229/95 DTD. 14/07/1997 OF THE DEPUTY COLLECTOR (LR), WAYANAD. EXT.P.3: COPY OF THE ORDER L2-10229/95 DTD. 24/09/1997 OF THE DISTRICT COLLECTOR, WAYANAD. EXT.P.4: COPY OF THE REVISION FILED BY THE PETITIONER BEFORE THE R.2. EXT.P.5: COPY OF THE ORDER NO. K. DIS. 111/98/HS1 DTD. 04/12/1998 OF THE R.2. EXT.P.6: COPY OF THE REVIEW PETITION DTD. 14/01/1999 FILED BY THE PETITIONER BEFORE THE R.2. EXT.P.7: COPY OF THE PROCEEDINGS NO. K. DIS. H1-195/99DTD. 20/05/1999 OF THE R.2. TO THE PETITIONER. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. C. R. K. M. JOSEPH, J. ----------------------------------- O.P. NO. 16927 OF 1999 M ---------------------------------- Dated this the 16th January, 2008 JUDGMENT Petitioner was assigned 1.25 cents of land vide Ext.P1 dated 28.2.1980 under the Wayanad Colonization Scheme Rules, 1969. The said Rules have been framed under Section 3 of the Kerala Land Assignment Act. Thereafter, the petitioner after 17 years, received Ext.P2 notice as to why the assignment should not be cancelled. He submitted his version. But, by Ext.P3, the District Collector cancelled the assignment on the ground that the petitioner failed in remitting the basic tax and it was remitted only on 20.1.1992 and that the petitioner is not in possession of the land from 28.2.1980 to 20.1.1992. Petitioner preferred Ext.P4 revision which came to be dismissed by Ext.P5. Ext.P6 review was also unsuccessful. Petitioner challenges Exts.P3, P5 and P7 and seeks a declaration that the assignment cannot be cancelled. OP NO.16927/99 M 2 2. A Counter Affidavit has been filed, wherein, it is stated, inter alia, as follows: "6. Many complaints were received by the Government against the assignment and the Government ordered the cancellation of assignment after obtaining a report from the District Collector. The District Collector issued the notice to the petitioner to show cause why the assignment should not be cancelled. But, the petitioner could not justify the assignment in his favour. Rule 13(2) of the Wayanad Colonization Scheme states on assignment on registry shall be liable to cancellation within a period of five years from the date of assignment if it is found that the assignment was inequitable or was made under mistake of fact in excess of the limit of powers delegated to the assigning authority or that there is any irregularity in procedure of such assignment. Rule (5) states that the authority competent to order the cancellation of an assignment on registry shall be the authority which made the assignment or one superior to it. 7. In this case, assignment was ordered on OP NO.16927/99 M 3 28.2.80. The assignment was cancelled by the District Collector on 24.9.1997 as directed by the Government on 5.6.1997 as per Rule 8(3) of the KLA Rules, 1984. The District Collector had pointed out to Government that the assignment in this case comes under Rule 7A of W.C. Rules 1969 which states that assignment is to be done following KLA Rules, 1964 rather than WCS Rules, 1969. So provision of K.L.A. Rules prevail in this case. As per Rules 8(3) and 21(9) of KLA Rules, Government can at any time revise, cancel or alter the assignment order after giving notice. The District Collector cancelled the assignment on Government directions after issuing notice and verifying the details. Hence the orders passed by the District Collector and Land Revenue Commissioner are in order." 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. Learned counsel for petitioner would contend as follows: Ext.P1 assignment was made under the Wayanad OP NO.16927/99 M 4 Colonization Scheme Rules. However, the impugned orders are in exercise of the powers under the Land Assignment Rules. He would submit that in so far as the assignment was done under the Wayanad Colonization Scheme Rules, 1969, there was no authority with the District Collector. He would further submit that the land tax was paid on 28.2.1980 and he paid the arrears in 1992. He would point out that from Ext.P5 it is clear that the order has been passed on the basis of the decision taken by the Government as revealed by the communication which is referred to in Ext.P3. The said decision of the Government was taken without hearing the petitioner and it is on the said basis that the Authority has cancelled the assignment, he contends. 5. Learned Government Pleader would, however, submit that power is available under the Land Assignment Rules 1964. She fairly submits that the assignment was made under the Wayanad Colonization Scheme Rules. She would point out that the petitioner did not have possession. 6. As far as the first contention is concerned, I am of the OP NO.16927/99 M 5 firm view that the petitioner is justified in impugning the orders on the ground that the cancellation of the assignment purported to be made under the Land Assignment Rules, is without authority. The assignment has been made under the Wayanad Colonization Scheme Rules, 1969. Rule 13(2) of the said Rules provides as follows: "13. Conditions of assignment.- (2) The assignment on registry shall be liable to be cancelled for contravention of the provision in sub-rule (1A). An assignment on registry shall also be liable to be cancelled within a period of five years from the date of assignment if it is found that the assignment was grossly inequitable or was made under a mistake of fact or owing to wrong representation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure for such assignment." 7. The cancellation is sought to be justified under Rule 8 (3) of the Land Assignment Rules, 1964 which reads as follows: "8. Conditions of assignment on registry:- OP NO.16927/99 M 6 (3) The registry shall be liable to be cancelled for contravention of the provisions in sub-rule (1A) or sub-rule (2). The registry may be cancelled also, if it is found that it was grossly inequitable or was made under a mistake of facts or owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure. In the event of cancellation of the registry, the assignee shall not be entitled to compensation for any improvements he may have made on the land. The authority competent to order such cancellation shall be the authority which granted the registry, or one superior to it; Provided that no registry of land shall be cancelled without giving the party or parties affected thereby, a reasonable opportunity of being heard. Provided further that no assignment of land shall be cancelled if the annual family income of the transferee occupant does not exceed Rs.10,000/= (Rupees ten thousand only) and who does not own or possess any landed property, OP NO.16927/99 M 7 anywhere in the State: Provided also that in the case of a transfer of land covered by the above proviso the assignee shall not be eligible for further assignment of land anywhere in the State." Rule 21(9) on which the Government Pleader placed reliance reads as follows: "21. Appeal to lie to Revenue Divisional Officer etc.- (9) The Government may at any time revise, cancel or alter on their own motion or otherwise any decision made or order passed by the Tahsildar, an Officer authorised by the Government under rule 23A, Revenue Divisional Officer, District Collector or the Board of Revenue under these rules: Provided that no such decision or order shall be revised, cancelled or altered under this sub-rule without giving the party affected thereby a reasonable opportunity of being heard." 8. In Karimtharuvi Tea Estates Ltd. v. State of Kerala (1999 (1) KLT 33) this Court has declared it as void and OP NO.16927/99 M 8 unsustainable. That apart, I would think that the assignment in this case was made under the Wayanad Colonization Scheme Rules, 1969. There is specific and special provision contained in the said Rules. In such circumstances, it is not open to the respondents to draw any support from the provision contained in Rule 8(3) of the Land Assignment Rules. Therefore, the petitioner is entitled to succeed on the ground that the cancellation having been made beyond the period of five years from the date of assignment is illegal and without authority. In such circumstances, the Writ Petition is allowed and Exts.P3, P5 and P7 are quashed. K. M. JOSEPH, JUDGE kbk. C. R. K. M. JOSEPH, J. O.P NO. 16927 OF 1999 M JUDGMENT 16th January, 2008