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 TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 WA.No. 1196 of 2008 ----------------------------- AGAINST THE JUDGEMENT IN OP.20227/2000 Dated 16/10/2006 .................... APPELLANTS / RESPONDENTS 2 TO 5 IN THE OP ---------------------------------------------------------------------- 1. THE LAND REVENUE COMMISSIONER, COMMISSIONERATE OF LAND REVENUE, THIRUVANANTHAPURAM. 2. THE REVENUE DIVISIONAL OFFICER, KASARAGOD AT KANHANGAD. 3. THE SPECIAL TAHSILDAR (LA), KASARAGOD. 4. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA RESPONDENTS: PETITIONER & IST RESPONDENT IN THE OP -------------------------------------------------------------------------------------- 1. UMAVATHI @ NALINI, W/O.LATE SUNDARAN, BADIBAGILU, KASARAGOD VILLAGE. 2. P.KUMARAN NAIR, S/O.NOOKAL MUNHAMBU NAIR, MEDU, CHENGALA VILLAGE, KASARAGOD DISTRICT. BY SENIOR ADVOCATE SRI.S.V.BALAKRISHNA IYER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.1196 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of August 2008 JUDGMENT A.K.BASHEER, J. The short question that arose for consideration before the learned Single Judge was whether the Land Revenue Commissioner was justified in issuing Ext.P5 order revoking or cancelling the order of assignment issued in favour of respondent No.1/writ petitioner. The learned Judge took the view that the Commissioner was not justified in revoking the assignment and quashed Ext.P5 order. The above order passed by the learned Single Judge is under challenge in this writ appeal at the instance of the State. 2. A brief reference to certain essential facts is necessary to consider the question whether any interference is warranted in the judgment passed by the learned Single Judge. 3. By order dated July 8, 1991, Special Tahsildar (Assignment), Kasaragod, had assigned 17 cents of land situated in Survey No.150/2E of Chengala village in favour of respondent No.1 as provided under the provisions contained in the Kerala Land Assignment Act (for short, the Act) and the Rules framed thereunder. Thereafter, in 1992 Ext.P1 patta was also issued in favour of respondent No.1. W.A.No.1196 OF 2008 :: 2 :: 4. It appears that after a lapse of six years, the above order was challenged by respondent No.2 herein before the Revenue Divisional Officer who is the appellate authority under the Act. The appellate authority, after hearing the parties concerned, took the view that respondent No.2 had not satisfactorily explained the inordinate delay in impugning the order of assignment. Further, on facts also, the authority found that the assigned land was not “kumki and legthi to the warga” property belonging to respondent No.2 and that no material was produced by respondent No.2 to show that he had planted any improvements in the property as claimed by him. In fact the appellate authority had conducted a local inspection before dismissing the appeal filed by respondent No.2. 5. The said order passed by the appellate authority was challenged by respondent No.2 before the Land Revenue Commissioner, Thiruvananthapuram. The revisional authority, in Ext.P5 order, held that the records revealed that the assignee (respondent No.1) had not taken possession of the land assigned to her and therefore, going by Rule 8(3), the assignment was liable to be cancelled. The revisional authority therefore directed that the Tahsildar shall take appropriate steps to revoke the order of assignment issued in favour of respondent No.1 and to distribute the land to other eligible persons. 6. Learned Government Pleader while supporting Ext.P5 order contends W.A.No.1196 OF 2008 :: 3 :: that going by the provisions contained under the Act and the Rules, an assignee who violates the conditions prescribed in Rule 8(2), was not entitled to get the benefit of assignment. It is further contended that the revisional authority was amply empowered to review any order suo-motu, and to revoke or cancel an order of assignment at any point of time as provided under Rule 21(8) of the Rules. 7. It is undoubtedly true that under sub-rule 8 of Rule 21 of the Rules, the Board of Revenue (Land Revenue Commissioner as of now) shall be competent to revise, cancel or alter, on its 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 or District Collector, under these Rules. However, the proviso under the above sub rule stipulates that no proceedings in this behalf shall be initiated by the Board after the expiry of two years from the date of such decision or order, and no such decision or order shall be set aside or modified by it without giving the party affected thereby, a reasonable opportunity to be heard. 8. It is pertinent to note that respondent No.2 was a stranger to the assignment. But he had impugned the order of assignment before the appellate authority after a lapse of six years. The appellate authority after hearing the objections raised by the stranger had categorically found that no valid reasons W.A.No.1196 OF 2008 :: 4 :: for the inordinate delay had been placed on record by respondent No.2 while impugning the order of assignment. It was further noticed by the appellate authority that on a local inspection made by him it had been found that respondent No.2 had not made any improvements as claimed by him. The specific case of the assignee (respondent No.1) was that the cashew trees found in the property were planted by her. Anyhow, we are not concerned with that aspect of the matter at this stage. 9. The revisional authority, while dealing with the revision petition preferred by respondent No.2, had necessarily to consider only the question whether the order passed by the appellate authority was valid or not. Strangely, the revisional authority had not adverted to the question of delay at all, on which ground the appellate authority had primarily dismissed the appeal. The revisional authority did not stop there. Apparently invoking the suo motu revisional power as envisaged in Rule 21(8) of the Rules, the revisional authority proceeded further and held that the very order of assignment issued in favour of respondent No.1 was liable to be revoked/cancelled. This, in our view, could not have been done in the peculiar facts and circumstances of this case while considering the revision petition filed by respondent No.2. For that short reason Ext.P5 order cannot be sustained. The learned Single Judge has of course quashed Ext.P5 order relying on the local inspection report of the W.A.No.1196 OF 2008 :: 5 :: appellate authority. In our view Ext.P5 order is liable to be set aside for the reasons stated by us. In the above facts and circumstances, we do not find any reason to interfere with the impugned judgment. 10. However, we make it clear that it will be open to the revisional authority or the Government to initiate appropriate proceedings as contemplated under the rules, if for any reason the said authority is satisfied that the order of assignment issued in favour of respondent No.1 is liable to be revoked or cancelled. Needless to mention, the revisional authority shall initiate any such proceeding only after issuing notice to the assignee as provided under the Rules. Writ appeal is dismissed. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE jes