IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 OP.No. 21468 of 2002(E) ----------------------- PETITIONER: ------------------- K.RAMA S/O. THYAMPANNA, RESIDING AT PUTHIGE VILLAGE, PUTHIGE POST, KASARAGOD TALUK, KASARAGOD DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.T.P.ELDHO RESPONDENTS: ----------------------- 1. STATE OF KERALA - REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE SPECIAL TAHSILDAR (LAND ASSIGNMENT) KUMBALA, KASARAGOD. 3. THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM. 4. THE REVENUE DIVISIONAL OFFICER, KASARGOD 5. SMT.RADHA AMMA, AGED 58 YEARS, W/O. LATE SUBRAHMANYA BHAT Y., ADKATHOTTI, PUTHIGE VILLAGE, PUTHIGE POST, KASARAGOD TALUK, KASARAGOD DISTRICT. 6. Y.GIREESHA BHAT, AGED 33 YEARS, S/O. LATE SUBRAHMANIAN BHAT Y. ADKATHOTTI, PUTHIGE VILLAGE, PUTHIGE POST, KASARAGOD TALUK, KASARAGOD DISTRICT. 7. GANAPATHI BHAT,AGED 31 YEARS, S/O. LATE SUBRAHMANIAN BHAT Y. ADKATHOTTI, PUTHIGE VILLAGE, PUTHIGE POST, KASARAGOD TALUK, KASARAGOD DISTRICT. 8. S.RAJENDRAN, AGED 29 YEARS, S/O. LATE SUBRAHMANIAN BHAT Y., ADKATHOTTI, PUTHIGE VILLAGE, PUTHIGE POST, KASARAGOD TALUK, KASARAGOD DISTRICT. 9. VIJAYA, AGED 27 YEARS, D/O. LATE SUBRAHMANIAN BHAT Y., ADKATHOTTI, PUTHIGE VILLAGE, PUTHIGE POST, KASARAGOD TALUK, KASARAGOD DISTRICT. 10. VEENA KUMARI, AGED 25 YEARS, D/O. LATE SUBRAHMANIAN BHAT Y., ADKATHOTTI, PUTHIGE VILLAGE, PUTHIGE POST, KASARAGOD TALUK, KASARAGOD DISTRICT. 11. SATHYANARAYANA BHAT, AGED 23 YEARS, S/O. LATE SUBRAHMANIAN BHAT Y. ADKATHOTTI, PUTHIGE VILLAGE, PUTHIGE POST, KASARAGOD TALUK, KASARAGOD DISTRICT. 12. UDAYAKUMARI, AGED 21 YEARS, D/O. LATE SUBRAHMANIAN BHAT Y. ADKATHOTTI, PUTHIGE VILLAGE, PUTHIGE POST, KASARAGOD TALUK, KASARAGOD DISTRICT. 13. JYOTHI, AGED 20 YEARS, D/O. LATE SUBRAHMANIAN BHAT Y., ADKATHOTTI, PUTHIGE VILLAGE, PUTHIGE POST, KASARAGOD TALUK, KASARAGOD DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER SRI. M.P. SREEKRISHNAN. R5 TO 8, 10, 12 & 13 BY ADV. SRI.L.GOPALAKRISHNAN POTTI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 04/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.M.P. 36768 OF 2002 IN O.P. NO. 21468 OF 2002. DISMISSED. 4.2.2008. SD/- K.M. JOSEPH, JUDGE. APPENDIX PETITIONER'S EXTS: EXT. P1 : A TRUE COPY OF THE COMPLAINT DATED 29.9.1986 TO THE DISTRICT COLLECTOR, KASARAGOD. EXT. P2 : A TRUE COPY OF THE APPEAL MEMORANDUM DATED 10.11.1986. EXT. P3 : A TRUE COPY OF THE PROCEEDINGS DATED 8.3.2000. EXT. P4 : A TRUE COPY OF THE REVISION PETITION DATED 14.7.2000. EXT. P5 : A TRUE COPY OF THE ORDER DATED 19.12.2001. K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - O.P. No.21468 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of February, 2008 JUDGMENT The petitioner calls in question Exts.P3 and P5 orders and seeks a declaration that he is eligible to have preference to get assignment of land in R.S.9/3 of Puthige Village by virtue of Rule 7 of the Kerala Land Assignment Rules. Direction is sought to assign the land in R.S. No.9/3 of Puthige Village, which is in the possession of petitioner, in his favour. 2. The case of the petitioner in brief is as follows: Petitioner is in possession of 90 cents in R.S. No.9/3 of Puthige Village for the past 40 years. Petitioner is an agricultural labourer. He has been in continuous occupation of a portion of land in R.S.9/3 of Puthige Village. According to him in terms of Rule 7 of the Kerala Land Assignment Rules, he is entitled to assignment. However, the said land came to be assigned in favour of one late Sri. Subrahmanya Bhat, whose legal representatives are impleaded as respondents 5 to 13. Petitioner preferred an appeal and the appeal came to be rejected vide Ext.P3. Petitioner carried the matter in revision before the Land Revenue Commissioner, who rejected the same by Ext.P5. Petitioner calls in O.P.21468/2002. 2 question the said decision. The order of the Tahsildar assigning land to late Sri. Subrhamanya Bhat is not produced. 3. Learned counsel for the petitioner would submit that having regard to the fact that the petitioner was in possession for 40 years, there is no rhyme or reason for not assigning the land to the petitioner. It is contended that the basis on which the land was assigned in favour of late Sri. Subrhamanya Bhat is that he was having kumki right. He submits that there is nothing to show that Sri.Subrhamanya Bhat is entitled to kumki rights. He further submits that there is no enquiry conducted. He would further contend that kumki right can be given only upto 40 meters under Rule 7A. In this case under the guise of kumki right, Sri.Subrhamanya Bhat came to be assigned with 90 cents of land. 4. Proceedings under Article 226 are not appellate proceedings and there can be no question of re-appreciation of evidence to arrive at a different conclusion. Interference can be premised only on the basis of perverse finding of fact. 5. Learned counsel for the petitioner does not dispute that though Rule 12 notice was issued, the petitioner could not appear. Therefore, it cannot be said that Rule 12 notice was not issued or that the enquiry was not conducted. Even before this court, petitioner has not O.P.21468/2002. 3 produced, as correctly pointed out by the learned counsel for respondents 5 to 13, any material to show that the petitioner was in possession of the land for 40 years. As far as the basis of kumki right is concerned, it cannot be in dispute that if a person is having kumki right under Rule 7A, land has to be assigned on priority basis to the person holding kumki right. A perusal of the order of the Commissioner would show that the Commissioner did consider the contention raised by the petitioner that there was no basis for grant of kumki right. He found on the basis of the perusal of the enquiry proceedings that assignment of kumki right in favour of late Sri. Subrahmanya Bhat was justified. The quantum of material to prove the right cannot be the basis of questioning the existence of kumki right. If there are materials to show that late Sri.Subrahmanya Bhat had kumki right, it is not for this court to veto the same under Article 226. I do not think that the petitioner has made out any case for interference. The Original Petition fails and it is dismissed. (K.M. JOSEPH, JUDGE) sb O.P.21468/2002. 4 K.M. JOSEPH, J. ----------------------------------- O.P. No. 21468 of 2002 ----------------------------------- JUDGMENT 4.2.2008.