IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 WP(C).No. 7566 of 2006(A) ---------------------- PETITIONER : -------------------- KHADEEJA, D/O. ADAM, KOCHANADU HOUSE, KALANAD VILLAGE, KALANAD P.O., KASARGODE DISTRICT. BY ADVS. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT(S): ------------------------- 1. COMMISSIONER (LAND REVENUE), TRIVANDRUM. 2. DISTRICT COLLECTOR, KASARGODE. 3. REVENUE DIVISIONAL OFFICER, KASARGODE. 4. TAHSILDAR, KASARGODE. 5. BEKAL RESORT DEVELOPMENT CORPORATION, REPRESENTED BY MANAGING DIRECTOR, BEKEL RESORT DEVELOPMENT CORPORATION, KASARGODE P.O., KASARGODE DISTRICT. R1 TO R4 BY GOVT. PLEADER SRI. NOBLE MATHEW R5 BY ADV. SRI.V.N.RAMESAN NAMBISAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 7566 of 2006(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE 3RD RESPONDENT DATED 6.7.1999. EXT.P2 : COPY OF THE PATTA ISSUED BY THE 3RD RESPONDENT IN FAVOUR OF THE PETITIONER DATED 30.9.2000. EXT.P3 : COPY OF THE SHOW CAUSE NOTICE (MISTAKENLY SHOWN AS 30.5.2000) ISSUED BY TH 4TH RESPONDENT TO THE PETITIONER DATED 30.5.2001. EXT.P4 : COPY OF THE WRITTEN OBJECTIONS SUBMITTED BY THE PETITIONER BEFORE 4TH RESPONDENT DATED 2.6.2001. EXT.P5 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. NO. 20634/2001 DATED 16.8.2001. EXT.P6 : COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 30.10.2002. EXT.P7 : COPY OF THE ORDER OF THE SUB COLLECTOR DATED 11.3.2005. EXT.P8 : COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 5.7.2005. EXT.P9 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO. 23184/2005 DATED 5.8.2005. EXT.P10 COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 18.1.2006. EXT.P11 COPY OF THE CERTIFICATE ISSUED FROM THE SCHOOL OF THE PETITIONER DATED 27.7.2005. EXT.P12 COPY OF THE AUTHENTICATED COPY OF THE EXTRACT FROM THE ADMISSION REGISTER MAINTAINED IN THE SCHOOL DATED 27.2.2006. RESPONDENT'S EXHIBITS : EXT.R5(a) : COPY OF THE SKETCH OF THE SITE INVOLVED IN THE CASE IN R.S. NO. 133/1 PART OF KALANAD VILLAGE. (Contd...) WP(C).No. 7566 of 2006(A) EXT.R5(b) : COPY OF TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, KASARAGOD IN FAVOUR OF THE MANAGING DIRECTOR OF BRDC LTD., DATED 30.12.2002. EXT.R5(c) : COPY OF TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, KASARAGOD IN FAVOUR OF THE MANAGING DIRECTOR OF BRDC LTD., DATED 27.03.2007. EXT.R5(d) COPY OF A ROUGH SKETCH OF THE SITE INVOLVED IN THE CASE IN R.S. NO. 133/1. //TRUE COPY// P.S. TO JUDGE Mn S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.7566 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of October, 2011 J U D G M E N T The petitioner claims to be a landless lady. She applied for assignment of land under the Kerala Land Assignment Rules, as per Ext.P1 application dated 06.07.1999. That application was allowed and Ext.P2 patta dated 30.9.2000 was issued to the petitioner. By Ext.P3 show cause notice dated 30.05.2000 (sic for 30.05.2001) the petitioner was directed to show cause why the assignment should not be cancelled on the ground that the 5th respondent herein had submitted an application dated 28.09.1999 for assignment of the same land. By Ext.P5 judgment in O.P. No.20634/2001, this Court directed to pass a speaking order in respect of the matter. By Ext.P6 order dated 30.12.2002, the 4th respondent held that the assignment is not liable to be cancelled. The 5th respondent challenged Ext.P6 order in appeal. By Ext.P7 order dated W.P.(C)No.7566 of 2006 -2- 11.03.2005 the 3rd respondent allowed the appeal and remanded the matter to the 4th respondent for fresh disposal. By Ext.P8 order dated 05.07.2005, the 4th respondent cancelled Ext.P2 patta. The petitioner challenged the same in W.P. (C) No. 23184/2005. By Ext.P9 judgment, the petitioner was relegated to the alternate remedy by way of revision. The petitioner filed a revision before the 1st respondent. By Ext.P10 order dated 18.01.2006, the 1st respondent dismissed the revision. The petitioner is challenging Exts.P7, P8 and P10 orders. The contention of the petitioner is that the only ground on which the revision was dismissed were that the petitioner has not produced any documents to prove that she was not a minor at the time of application, that the certificate issued by the school is not an acceptable document and that the petitioner was not able to identify the land assigned to her. According to the petitioner, as is clear from Ext.P12 extract from the Admission Register of the school in which the petitioner had studied, the petitioner's date of birth is W.P.(C)No.7566 of 2006 -3- 26.05.1979 and therefore as on the date of application in 1999, the petitioner was clearly 20 years old and was not a minor. It is further contended that, after having assigned the land, it is vain to hold that the petitioner was not able to identify the land. The petitioner points out that, as per the 2nd proviso to Rule 8 (3) of the Kerala Land Assignment Rules, 1964, the assignment in favour of the petitioner is not liable to be cancelled in so far as the petitioner's annual income does not exceed Rs.10,000/- and the petitioner does not own or possess any landed property, anywhere in the State. 2. The 1st respondent has filed a counter affidavit supporting the orders. 3. The counsel for the 5th respondent has also filed a counter affidavit. 4. I have considered the rival contentions in detail. 5. The operative portion of Ext.P10 order reads thus: “Finding: 1. The revision petitioner has not produced any authoritative document to prove that she is not a minor at W.P.(C)No.7566 of 2006 -4- the time of application of assignment. Certificate issued by the School is not an acceptable document. 2. The assignee was not even able to identify the land. This violates Rule 8(2) of the KLA Rules.” 6. I find the reason very strange and totally unacceptable. The 1st respondent does not find that the petitioner was in fact a minor at the time of the application for assignment. Of course, I could have understood if the assignment was cancelled on the ground that the petitioner was a minor at the time of application. The only ground mentioned is that the petitioner has not proved that she was not a minor at the time of application and it is further stated that the certificate issued by the school is not an acceptable document. I am at a loss to understand how the 1st respondent can say so, when in our State, extract from the admission register of the school in which a person has studied is considered as an authentic document with regard to the date of birth. Ext.P12 is the extract from the admission register in respect of the petitioner issued by the Headmaster, G.L.P. School, Kalanad Old, wherein the W.P.(C)No.7566 of 2006 -5- petitioner's date of birth is clearly given as 26.05.1979. As is clear from Ext.P1, the petitioner submitted application for assignment on 06.07.1999. As on that date, the petitioner was clearly a major being 20 years old. I also find the 2nd reasoning also strange. The Revenue authorities cannot deny that it is only after identifying the property that Ext.P2 patta has been issued. The revenue authorities know which is the property so assigned. As such, the finding that the assignee was not able to identify the land is not a reason to cancel the assignment. Therefore Ext.P10 order is nothing but perverse. 7. It appears that the proceedings for cancellation of the patta issued to the petitioner was initiated at the instance of the 5th respondent on the ground that they were also an applicant for assignment of the land. But their application is dated 28.9.1999 whereas the petitioner applied on 6.7.1999. It is recognising the petitioner's preferential right for assignment, orders were issued in her favour. No valid reasons have been put forward by the W.P.(C)No.7566 of 2006 -6- respondent to deny the assignment to the petitioner. Moreover in view of the 2nd proviso to Rule 8 (3) of the Kerala Land Assignment Rules, the assignment granted in favour of the petitioner is not liable to be cancelled. Rule 8 (3) of the Kerala Land Assignment Rules, 1964 reads thus: “(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, 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.” The averment of the petitioner that the petitioner's annual income does not exceed Rs.10,000/- and that the petitioner does not own or possess any landed property, anywhere in W.P.(C)No.7566 of 2006 -7- the State is not disputed by the respondents. The respondents have no case that the petitioner has violated any of the conditions of the assignment. There is also no finding that the petitioner is not eligible for assignment other than the reasons mentioned in the impugned order which I have found to be unsustainable. In view of the above undisputed facts, the embargo in the 2nd proviso to Rule 8 (3) clearly applies in the petitioner's case. In the above circumstances, I am of opinion that the respondents 1 to 4 could not have cancelled the patta issued to the petitioner. Accordingly, Exts.P7, P8 & P10 orders are quashed. It is declared that Ext.P2 patta, assigning the land mentioned therein to the petitioner was validly assigned in favour of the petitioner. The writ petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/