IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 WP(C).No. 13149 of 2010(P) -------------------------- PETITIONER(S): --------------------- V.K.SULAIMAN, S/O.KOCHU MOHAMMED, AGED 56, VATTEKKATTU HOUSE, THENGODU P.O., KAKKANAD VILLAGE. BY ADVS. SRI.K.C.CHARLES SRI.M.POLY MATHAI SRI.P.CHELLAPPAN SRI.HARI MENON SRI.VIMAL K.CHARLES SMT.A.T.RENJU RESPONDENT(S): ----------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO THE DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, COLLECTORATE, CIVIL LINES, KAKKANADU, ERNAKULAM. 3. TAHSILDAR, KANAYANNUR TALUK OFFICE, COCHIN-11. 4. LAND REVENUE COMMISSIONER, OFFICE OF THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM. R3 BY GOVERNMENT PLEADER SMT.SANJEETHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 13149 of 2010(P) ----------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF THE JUDGMENT IN OP NO.20702/1997. EXT.P2. COPY OF THE ORDER DATED 26.04.2002 PASSED BY THE REVENUE DIVISIONAL OFFICER, FORT COCHIN. EXT.P3. COPY OF THE JUDGEMENT IN OP 12020/2001 DATD 5.10.2001. EXT.PP4. COPY OF THE PROCEEDINGS OF THE COMMISSIONER OF LAND REVENUE IN LR (J3)-22128/02/KDIS DATED 08.07.2003. EXT.P5. COPY OF THE JUDGEMENT PASSED BY THIS HON'BLE COURT IN WPC NO.24064/2003 DATED 29.09.2004. EXT.P6. COPY OF THE GAZETTE NOTIFICATION DATED 29.10.2008 CONTAINING THE GOVERNMENT NOTIFICATION DATED 17.10.2007. EXT.P7. COPY OF THE JUDGEMENT DATED 1.2.2010 IN WPC 1003/2010 EXT.P8. COPY OF THE PROCEEDINGS OF 3RD RSPONDENT DATED 17.3.2010. RESPONDENT'S EXHIBITS : NIL ------------------------------------- / TRUE COPY / P.A. TO JUDGE VK ANTONY DOMINIC, J. ================ W.P.(C) NO. 13149 OF 2010 ===================== Dated this the 24th day of October, 2011 J U D G M E N T The controversy in this writ petition pertains to the claim of the petitioner for assignment of land situated in Sy.No.385/2C of Kakkanad Village. 2. According to the petitioner, since 1960, his family has been in possession of 50 cents of land situated in the said survey number. The application made by the petitioner for assignment was rejected by the Tahsildar and in appeal filed before the Revenue Divisional Officer, the matter was remitted for fresh consideration. It is stated that when the matter was thus pending, a stranger by name M.K.Pakko filed OP No.20702/97 before this Court claiming interest over the property and challenging the proposal for assignment in favour of the petitioner. That original petition was disposed of by Ext.P1 judgment directing that the objections filed by the petitioner in OP No.20702/97 should also be considered when the claim of the petitioner is decided. 3. Accordingly, the parties were heard and the Tahsildar passed order rejecting the application of the petitioner on the WPC No. 13149/10 :2 : ground that as per the revenue records, the land is a thodu puramboke and hence not assignable. Against this order, petitioner again filed an appeal before the Revenue Divisional Officer. During the pendency of the said appeal, OP No.12020/2011 was filed before this Court by the Federation of Organisations for Research and Development. That original petition was disposed of by Ext.P3 judgment directing that the RDO will hear the Federation also when the appeal is decided. 4. Accordingly, the appeal was considered and Ext.P2 order was passed by the RDO upholding the claim of the petitioner and directing the Tahsildar to consider the application afresh and assign the land leaving a 5m belt along the thodu for protecting the thodu. The operative portion of this order reads thus; “From the facts of the case it is clear that the land is only thodu puramboke. It has been partially held by the appellant. It has been in possession of the appellant for several decades. The natural flow of water will not be affected by assigning this land. The Honourable High Court of Kerala has only prohibited assigning of puzha puramboke. In the circumstances the order of the Tahsildar rejecting the application is set aside. He is to consider the application afresh and assign land leaving a 5m belt along the thodu for protecting the thodu. The balance may be assigned to the appellant after following all required formalities under law.” 5. The Federation filed revision before the Land Revenue WPC No. 13149/10 :3 : Commissioner against Ext.P2 order. The revision was considered and by Ext.P4, the Land Revenue Commissioner rejected the revision. Against these orders, Federation filed WP(C) No. 24064/03. That writ petition was considered by a Division Bench and by Ext.P5 judgment, the writ petition was dismissed holding that all revenue records were examined by the authorities and that it was after a joint local inspection conducted by the RDO and the Tahsildar that the impugned order was passed. This Court also took note of the fact that all rules relating to assignment of thodu puramboke will be complied with if at all the land is assigned to the petitioner, and that, no obstruction will be caused to the thodu by assigning the above stretch of land. 6. According to the petitioner, subsequently, the land was measured and demarcated and the value to be paid also was fixed. It is also stated that the Government had also issued Ext.P6 notification taking over the said land from the Panchayat. Even inspite of all this, since there was no progress in the matter of assignment, petitioner again approached this Court by filing WP (C) No. 1003/10, which was disposed of by Ext.P7 judgment directing completion of the process within one month. Accordingly, the Tahsildar considered the matter and Ext.P8 order WPC No. 13149/10 :4 : was passed holding that the application made by the petitioner for assignment of 40 cents of land comprised in Re.Sy.No.722, Block No.9 of Kakkanad Village is rejected. It is this order which is challenged in this writ petition. 7. The contention raised by the learned counsel for the petitioner is mainly that his claim for assignment of the land already stands upheld by Ext.P2 appellate order of the RDO, Ext.P4 revisional order of the Land Revenue Commissioner and Ext.P5 judgment in WP(C) No. 24064/03 rendered by a Division Bench. It is stated that the claim so upheld by all statutory authorities including this Court could not have been upset by an order of the Tahsildar. 8. On the other hand, learned Government Pleader contended that the effect of Exts.P2, P4 and P5 is that the application made by the petitioner for assignment is to be considered in the light of the provisions contained in the Kerala Land Assignment Act and the Rules, and that, it was accordingly that the Tahsildar considered his claim. It is contended that the claim has been negatived by the Tahsildar only because of the ineligibility of the petitioner, which has been duly adverted to in Ext.P8 order. WPC No. 13149/10 :5 : 9. A reading of Ext.P8 order shows that the Tahsildar has held that the land is not in the possession of the petitioner, that the petitioner and his family members own various extents of land, that the land may be required for future development of Kinfra, that there is no agricultural operations in the land, that the petitioner and his family members have an annual income of more than `1,00,000/- and that the land in question is not indispensable for the applicant. 10. As already seen, in Ext.P2 order passed by the RDO, the Tahsildar rejecting the application made by the petitioner was set aside and he was ordered to consider the application afresh and assign land leaving a 5m belt along the thodu for protecting the thodu. It was this order, which was confirmed by the Land Revenue Commissioner in Ext.P4 order rejecting the revision filed by the Organization for Research and Development. Here again, though claim of the petitioner for assignment was upheld, it was clarified that, assignment if any, shall be only in compliance with the statutory provisions. These orders were confirmed by the Division Bench of this Court in Ext.P5 judgment. Thus, the entitlement of the petitioner for assignment of the land has been upheld by the RDO, Land Revenue Commissioner and this Court WPC No. 13149/10 :6 : and he is entitled to be assigned the land subject to the provisions of the Land Assignment Act and the Rules. 11. In this context, learned Government Pleader was perfectly justified in referring to Rule 5 of the Kerala Land Assignment Rules, which prescribes a maximum limit of land to be assigned and the petitioner cannot have any claim beyond the said provisions. Therefore, in such circumstances, Tahsildar could not have negatived the claim of the petitioner in totality, but the order which he passed ought to have in compliance with Exts.P2, P4 and P5 and in the light of the provisions contained in the Kerala Land Assignment Act and the Rules. Since such exercise was not done, Ext.P8 deserves to be set aside and I do so. 12. The 3rd respondent, Tahsildar is directed to pass orders in the light of Exts.P2, P4 and P5 and duly adverting to the aforesaid findings in this judgment. Necessary orders in this behalf shall be passed, as expeditiously as possible, at any rate within 8 weeks of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp