Kerala High Court
Kunhali vs The Tahsildar on 6 January, 2021
"C.R"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942
WA. No.1571 OF 2020
[AGAINST THE JUDGMENT DATED 29.06.2020 IN WP(C)
NO.1051/2020(F) OF HIGH COURT OF KERALA]
APPELLANT/PETITIONER:
KUNHALI, AGED 68 YEARS.
S/O. MOOSAKUTTY, THATTANGATTU,
KUMMANKODE AMSOM, NADAPURAM DESOM,
VATAKARA, KOZHIKODE DISTRICT,
PIN - 673506.
BY ADVS. SRI.T.KRISHNANUNNI (SR.)
SMT.MEENA.A.
SRI.VINOD RAVINDRANATH
SRI.K.C.KIRAN
SMT.M.R.MINI
SRI.M.DEVESH
SRI.ASHWIN SATHYANATH
SHRI ANISH ANTONY ANATHAZHATH
SHRI THAREEQ ANVER
RESPONDENTS/RESPONDENTS:
1 THE TAHSILDAR, LAND RECORDS,
VATAKARA, KOZHIKODE DISTRICT, PIN - 673101,
2 THE REVENUE DIVISIONAL OFFICER,
VATAKARA, KOZHIKODE DISTRICT, PIN - 673101.
3 THE DISTRICT COLLECTOR,
CIVIL STATION, KOZHIKODE, PIN - 673020.
4 THE LAND REVENUE COMMISSIONER,
PUBLIC OFFICE BUILDING, MUSEUM JUNCTION,
WA.1571/2020 2
THIRUVANANTHAPURAM, PIN - 695033.
5 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT,
THIRUVANANTHAPURAM, PIN - 695001.
R1 BY ADV. SRI.RANJITH THAMPAN,
ADDL.ADVOCATE GENERAL
ADV. SRI.Y.JAFFAR KHAN, GOVT. PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
06.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WA.1571/2020 3
"C.R"
JUDGMENT
Dated this the 6th day of January, 2021 S. Manikumar, CJ This intra court appeal is filed against the judgment passed by a learned single Judge of this Court in W.P.(C) No.1051 of 2020 dated 29.06.2020, by which, the writ petition was dismissed, by observing that there is no scope for interference with the proceedings impugned therein; that if the civil suit is pending, the petitioner is free to seek any relief against the property; and that the parties are bound by the orders to be passed by the civil court in that regard.
2. Facts leading to the filing of instant appeal are that by Exhibit-P1 proceedings of the Tahsildar (Land Survey) dated 28.04.2018, issued under Section 12 of the Kerala Land Conservancy Act, 1957, appellant/writ petitioner, who was in unlawful possession of 6.58 cents of land in R.S. No.72 of Nadapuram Village, was directed to vacate the said land, alleging that it is the property of Government, under Section 3 of the Kerala Land Conservancy Act, 1957. Relying on Exhibit-P2 partition deed of the year 1958, in which the property was stated to be allotted to his father, appellant denied the allegation that he is in unlawful possession of the said property. Apart from Exhibit-P2 deed, he has also relied on Exhibit-P3 judgment in O.S. No.87 of 1982 of the trial court accepting title, Exhibit-P4 judgment in A.S. No.8/1991 dated 18.09.1991 of the lower appellate court, Exhibit-P5 WA.1571/2020 4 judgment in S.A. No.584/1992 dated 25.01.1993 of this Court, Exhibit-P6 Commissioner's plan in O.S. No.82/1987, Exhibit-P7 Commissioner's report dated 26.10.1983 in a suit identifying the land in question, Exhibit-P8 revenue resettlement register of the land, Exhibits-P9 to P12 land tax receipts dated 23.11.1987, 23.11.1987, 24.10.1966, 23.10.1979 and 26.11.1980, to show that his unlawful occupation of the land now asked to be vacated.
3. Appellant has further stated that the appeal filed against Exhibit-P1 proceedings of the Tahsildar (Land Survey) was dismissed by Exhibit-P13 order, by the Revenue Divisional Officer, Kozhikode, respondent No.2, dated 26.11.2018. Though he has filed revision against Exhibit-P13 order, the same was also dismissed, as per Exhibit-P14 order dated 12.05.2019 by the District Collector, Kozhikode, respondent No.3. Against Exhibit-P14 order, appellant approached the Land Revenue Commissioner, Thiruvananthapuram, respondent No.4, which resulted in Exhibit-P15 order dated 14.10.2019.
4. Being aggrieved by Exhibits-P1, P13 to P15 orders, the appellant has filed W.P.(C) No.1051 of 2020 for the following reliefs:
i. issue a writ of certiorari or any other writ, order or direction, quashing Exhibits-P1, P13, P14 and P15 orders; ii. issue a writ of mandamus or any other writ, order or direction, directing the respondents not to dispossess the petitioner from the land on the basis of Exhibit-P1 order; and WA.1571/2020 5 iii. issue a writ of mandamus or any other writ, order, or direction, directing the respondents to restore possession, in case of dispossession, based on Exhibit-P1 proceedings.
5. Before the writ court, Junior Superintendent, Vatakara Taluk Office, on behalf of respondents 1 to 3, has filed a counter affidavit, wherein it was contended as follows:
A) The property having an extent of 6.58 cents of land in Re- survey No.72 (old Survey No.23/5) of Nadapuram Village is the absolute property of the Government. Total extent of the said property in Re-survey No.72 is 34 cents. The said property is recorded as "Thodu" in the revenue records, as evident from Exhibit-R1(a), relevant page of Resettle Adangal on the file of the Village Office, Nadapuram, and Exhibit-R1(b) relevant page of Settlement Register. The Village Officer, Nadapuram, submitted a report in Form No. A to the Tahsildar, Vatakara, stating that the petitioner has illegally trespassed into the Government property, referred to above and recommended action under the Kerala Land Conservancy Act, 1957.
B) On receipt of the report received from the Village Officer, in Form No.A, the Tahsildar, Vatakara issued statutory notice in Form No.B to the petitioner. The petitioner appeared through counsel on 14.04.2018 and sought for an adjournment for producing documents. Accordingly, the case was adjourned to 27.04.2018 and on that date, petitioner produced certain documents regarding OS No.87/88 on the file of Munsiff's Court, Vatakara and AS No.8/91 on the file of the Sub Court, Vatakara. Arguments of the petitioner were heard by the Tahsildar and the documents produced by him were also duly verified. On verification of the documents, it was revealed that the said Civil Cases were filed against two private persons, with respect to Re-Survey No.71/5 (old Survey No.75/ 1B). It was further WA.1571/2020 6 revealed during the course of enquiry and examination of documents, that the said Civil Cases have no connection with the property of the Government comprised in Re-survey No.72 of Nadapuram Village. The attempt of the petitioner was to mislead the Tahsildar, relying on the judgments of the Civil Courts filed against private persons, with respect to property comprised in Re- Survey No.71/5 (old Survey No.75/1B).
C) It was also found by the Tahsildar that Exhibit - P2 title deed relied on by the petitioner was executed in connection with some other properties and it has no connection with the property comprised in Re-survey No.72. When it was found that the contentions of the petitioner are merit-less, the Tallsildar passed Exhibit-P1 order dated 28.04.2018, directing the him to vacate from the Government property comprised in Re-survey No.72 and Form No.0 proceedings were also issued. The Village Officer, Nadapuram took possession of the property on 09.05.2018, after preparing a Mahazar and report [(Exhibit-R1(c)] was also submitted to the Tahsildar indicating the same.
D) The petitioner thereafter challenged the proceedings of the Tahsildar before the Revenue Divisional Officer, respondent No.2. The Revenue Divisional Officer, after verifying the relevant records, found that there was no merit in the appeal filed by the petitioner and hence, rejected by Exhibit - P13 order dated 26.11.2018. The orders passed by the Tahsildar and the Revenue Divisional Officer were again challenged in a Revision Petition before the District Collector, Kozhikode, respondent No.3, who after hearing the contentions of the petitioner, found that there is no merit in the contentions raised and accordingly, rejected the revision petition.
E) The petitioner again filed an application before the Land Revenue Commissioner, respondent No.4, which was also WA.1571/2020 7 dismissed by Exhibit - P15 dated 14.10.2019. It can be seen from Exhibit - P15 order passed by the 4 th respondent that the petitioner has miserably failed to produce any documents before any of the aforesaid officials to prove his title with respect to the Government property comprised in Re-survey No.72 of Nadapuram Village. Though, the petitioner has contented that he is the owner in possession of the property having an extent of 6.58 Cents of land comprised in Re-survey No.72 of Nadapuram Village, he has no documents to substantiate that the properties are owned by him.
F) The contention of the petitioner that the Government property comprised in Re-survey No.72 was delivered to him in the Execution Petition is also factually incorrect and liable to be rejected. As stated above, the Civil Courts have not found that the property comprised in Re-survey No.72 is the property of the petitioner. All the Civil Court records would show that the property comprised in Re-survey No.72 was not at all a subject matter in the aforesaid proceedings. Therefore, the contention of the petitioner that the property under dispute was delivered to him by Exhibit-P19 proceedings is incorrect and liable to be rejected.
G) It was further contended that the petitioner is a ranked trespasser and under the guise of the Civil Court judgments, his attempt is to create bogus records to grab the Government land comprised in Re-survey No.72 of Nadapuram Village. It is brought to the notice of the Court that one Sri. N. M. Rafeeque Thangal and two other persons had surrendered 25 cents of land comprised in Re-survey No.73/Pt, for construction of a Fire Station in Nadapuram Village. The property comprised in Re-survey No.72 was originally a 'Thodu', which was illegally filled up later. The District Collector, Kozhikode, by order dated 14.05.2019, has transferred the property comprised in Re-survey No.73/1 to the Poramboke land. The property comprised in Re-survey No.72 is the only a pathway WA.1571/2020 8 leading to the property proposed for construction of the Fire Station.
H) It was further contended that the Government allocated necessary funds for construction of the fire station and the tenders were also invited. The competent officer awarded the tender to the contractor, and the contractor executed the agreement with the Assistant Executive Engineer, PWD Buildings Sub Division, Koyilandy. The Contractor had already started construction of the fire station and the work of the fire station is in progress. In the meanwhile, the petitioner filed the above case and obtained an interim order, from dispossessing the petitioner based on Ext - P1.
I) It was further contended that the property referred in Exhibit-P1 was resumed by the Village Officer on 09.05.2018 from the petitioner by preparing a Mahazar. The petitioner is not in possession of the said property. His attempt is to grab the Government land. Now the construction of the fire station is affected, as the petitioner has raised a contention that he is not vacated from the property comprised in Re-survey No.72. In fact, the petitioner is not in possession of the above property. Therefore, the contention of the petitioner is that the property comprised in Re- survey No.72 is under his possession and enjoyment is not correct.
J) The contention of the petitioner is that the first respondent Tahsildar is not competent to pass Exhibit - P1 order is factually incorrect and legally unsustainable. It is evident from the records maintained in the office of the 1st respondent that the petitioner has never raised any dispute regarding the authority of the Tahsildar, when Exhibit - P1 Form No.B notice was issued. The petitioner has voluntarily participated in the proceedings and suffered impugned order. Before the appellate, as well as the revisional authority also, he has never raised any dispute regarding the authority of the Tahsildar, to pass Exhibit-P1 order.WA.1571/2020 9
K) It was further contended that under the Kerala Land Conservancy Act, 1957, Government have duly notified Tahsildar as the competent authority, to initiate proceedings under the Act, 1957 and, therefore, Exhibit - P1 order was passed by a competent officer. The provisions of the Kerala Panchayat Raj Act, 1994 and the rules made thereunder are not a bar to initiate proceedings by a competent officer under the Land Conservancy Act. The judgments relied on by the petitioner are not applicable to the facts of the case. He has no resemblance of title in the property comprised in Re- survey No.72, which was concurrently found by the original appellate as well as the revisional authority. Therefore, there is no irregularity or illegality in the orders passed by the revenue officials.
L) It was further contended the Government have to complete the construction of fire station on the basis of an agreement executed by the PWD Department with the contractor. The construction articles can be transported to the site only through the property comprised in Re-survey No.72, which is used as a pathway. The Government is permitted to complete construction of the fire station, transporting the construction materials through the Re-survey No.72 of Nadapuram Village. Substantial prejudice, injury and loss would be caused to the Government, if construction of the fire station is delayed. There is no fire station near Nadapuram. The Government accorded sanction and allocated funds, taking note of the aforesaid situation. For the foregoing reasons, the respondents prayed for dismissal of the writ petition.
6. After considering the rival submissions advanced by the respective parties, statutory provisions, and the decisions relied on by the learned counsel for the appellant, Banerjee Memorial Club v. Taluk Tahsildar reported in 2016 (1) KLT 241 and Deviprasad v. District Collector reported WA.1571/2020 10 in 2019 (3) KLT 376, writ court, by judgment dated 29.06.2020, dismissed the writ petition. Assailing the correctness of the impugned judgment, this appeal is filed on the following grounds:
(a) The appellant and his predecessors were in actual physical settled possession of the disputed plot for decades together. Their possession was acknowledged and admitted by the revenue authorities. Revenue was paid for the plot also under the belief that the same lies in Sy. No.71. There were well demarcated boundaries on all the four sides. Revenue register would go to show that there is no poramboke attached to the thodu in Sy. No.72. The lie of the property also suggests that it cannot be a thodu poramboke. In such circumstances, the rights of the appellant and his predecessors in the property could not have been decided finally in summary proceedings under the Kerala Land Conservancy Act, 1957.
(b) The finding that appellant and his predecessors were not in settled possession of the land and no semblance of interest can be attributed to them is factually and legally incorrect.
(c) The records available would conclusively show that there was cultivation in the property. Two coconut trees over the age of 25 years were existing in the property. The septic tank attached to the building of the appellant situates in the plot. The lie of the property would conclusively show that the plot is in settled possession of the appellant.
(d) Under the provisions of the Kerala Panchayat Act, 1994, the property in question cannot be treated as one vested in the local authority.
(e) Writ court ought to have accepted the contention that the revenue authorities are not competent to initiate proceedings WA.1571/2020 11 under the Kerala Land Conservancy Act, 1957 with respect to the subject property.
(f) Exhibits-P3, P4 and P5 judgments and also Exhibits-P6, P7, P20 and P21 plans and reports of the Commission would show that the property was in the settled possession of the appellant and his predecessors. Exhibits-R1(c) and R1(d) also would support the case of the appellant that he was in actual physical possession of the property. That apart, the disputed plot will not come under the scope of Sections 3 and 4 of the Land Conservancy Act, 1957 and the appellant has been dispossessed from the subject property, without following the statutory requirement contemplated under the Kerala Land Conservancy Act, 1957.
7. Based on the above, Mr. T. Krishnanunni, learned Senior Counsel appearing for the appellant, made submissions. He relied on paragraphs 21 and 24 of the Banerjee Memorial Club (cited supra) to contend that it is a settled possession of the appellant and that he cannot be evicted by summary proceedings. According to the learned Senior Counsel, the respondents ought to have filed a civil suit for declaring that the subject property belongs to the Government and seek for appropriate remedy in the said suit. For the abovesaid reasons, he sought for interference with the impugned judgment.
8. Heard learned counsel for the parties and perused the material available on record.
WA.1571/2020 12
9. Report of the Village Officer, Nadapuram, addressed to the Tahsildar, Vatakara dated 09.05.2018 [Ext-R1(d)] reads thus:
"No. 132/10 Report of the Taluk Office Village Office Nadapuram, 9.5.18 Sir, Subject: Encroachment of Puramboke Thodu for which tax is not paid.
Reference:- H2 5897/18 issued by the Tahsildar, Vadakara.
Your kind attention is invited to the above referred matter. Sri. Kunjali Thadangattu, who is in possession of the adjacent land of the Thodu (Tax not been paid) comprised in Re survey No.72 situated in Nadapuram village, Nadapuram Desam has encroached into the said property. When it was noticed, notice was issued to him followed by submission of 'A' Form on 24.4.2018. Thereupon 'B' Form notice and C Form notice were issued to the encroacher in accordance with law. After the stipulated time, on 9.5.2018, the encroached land having an extent of 6.58 cents of land was repossessed in the presence of the witness. The sketch of the land, Mahassar along with the report are produced herewith.
Truly Sd/-
Village Officer"
10. Mahassar prepared on 09.05.2018, in connection with eviction of the appellant from the poramboke land [Exhibit-R1(c)] reads thus:
"MAHASSAR Mahassar prepared in connection with the eviction from the poramboke land comprised in Re-survey No.72 of WA.1571/2020 13 Nadapuram village, Nadapuram Desam, Vadakara Taluk, which is the land portion of the Thodu (Canal) for which tax is not been paid.
The property which has been encroached comprised in Re survey No.72 situated in Nadapuram Village, Nadapuram Desam, situated on the western side of Government Hospital, Nadapuram, on the southern side of Nadapuram-Vadakara PWD Road, near to the bridge in the road.
Extent 6.58 Cents Boundaries East: Property in possession of Thandagat Kunjali & Ors. South: Property in the possession of strangers West: Thodu (Canal) North: PWD Road Improvements: Two Coconut trees having an age of about 25 years. Mahassar thus prepared.
1. Harris Anthruhan 50 Kallantevide Kallayi.
2. Chandran Kizhakkayil Kallayi 673506."
11. Proceedings of the Tahsildar (Land Survey) dated 28.04.2018 (Exhibit-P1) reads thus:
"PROCEEDINGS OF THE TAHSILDAR (Land Survey) DATED 28.4.2018 Present: Raveendran K.K.
Sub:- Encroachment of Puramboke - regarding Reference: 1. Report of the Taluk Surveyor, Vadakara.
2. Form 'A' Report issued by the Village Officer, Nadapuram dated 24.3.2017 and 24.4.2018.
3. 'B' Form Notices issued by this office dated 31.3.2018 & 25.4.2018.
The Village Officer has reported as per the reference cited as (2) that the 'Thodu Puramboke' comprised in Re-Survey No.72 WA.1571/2020 14 situated in Nadapuram Village, Vadakara Taluk has been encroached by Sri. Kunjali Thadangod.
As per reference cited as (2) above, the Village Officer, Nadapuram has submitted 'A' Form report and on the basis of the same, a 'B' Form notice was issued through Village Officer to Sri. Kunjali Thadangod, who is the encroacher. On 11.04.2018, Advocate Rajesh represented Sri.Kunjali Thadangod and requested time for producing documents. On 27.4.2018, Kunjali produced before the Hon. Munsiff's Court, Nadapuram in O.S. No.87/88 and before the Hon. Sub Judge, Vadakara in A.S. 8/91., the copy of the petition filed before the Hon. High Court against the eviction proceedings was produced. But, the Hon. High Court has not passed any orders in the above petition. Since the State of Kerala is not a party to the proceedings before the Court, Nadapuram, as well as the Court at Vadakara, and the name of the place and Re-survey shown in the Title Deed differ and since in view of Sections 3 and 5 of the Land Conservancy Act, 1957, it is a Government land, it is hereby ordered that you have to vacate yourself from the encroached land having an extent of 6.58 cents comprised in Re-survey No.72, within 7 days on receipt of this notice. Failing to act upon this notice, steps shall be initiated in view of the provisions of Land Conservancy Act, 1957. 'C' Form in view of the Land Conservancy Act, 1957 is forwarded along with this.
Sd/-
Talshidar (Land Survey) Copy to : Kunjali, Adangot, Nadapuram.
(Village Officer, Nadapuram - has to submit report after issuing notice and C Form Notice to the party and produce the report after evicting from the land along with the copy of the notice issued in proof issuance.)"
12. Proceedings of the Revenue Divisional Officer, Vadakara, respondent No.2, dated 26.11.2018 (Exhibit-P13) reads thus: WA.1571/2020 15
"J-86/18 PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER, VADAKARA DATE: 26/11/2018 (PRESENT - VP ABDUL RAHMAN) SUBJECT: K.L.C.A Act 1957 - Orders are issued in the appeal submitted against the order of the Tahsildar (LR) Vadakara to evict the encroachment of Thodu.
REFERENCE: 1) Appeal petition dated 8/5/2018 submitted by Sri.Kunjali, son of late Moosakutty, Thadangattu house, Nadapuram.
2) Proceedings of Tahsildar (LR) Vadakara number H2-5297/18 dated 24/8/2018.
3) Judgment of Honourable High Court of Kerala in WP(C) No. 17516/2018 APPELLANT: Sri Kunjali, son of late Moosakutty, Thadangattu House, Nadapuram.
OPPOSITE PARTY: Tahsildar (LR) Vadakara.
This appeal is filed challenging the order issued by the Tahsildar (LR) Vadakara as per reference cited as (2), by which, eviction order was issued against the unauthorized encroachment of 6.58 cents of Thodu Poramboku Land comprised in resurvey 72 situated in Nadapuram Village, Nadapuram Desom, Vadakara Taluk.
1. The village officer of Nadapuram has submitted Form 'A' report before the Tahsildar land records on 24/3/2018, 24/4/2018 stating that the appeal petitioner Kunjali has encroached into Thodu Puramboku comprised in resurvey 72 situated in Nadapuram Village, Nadapuram Desom, Vadakara Taluk and constructed Kuzhikur's. On the basis of the same, the Tahsildar has issued 'B' form notice to the party on 31/3/2018, 25/4/2018 as per Kerala Land Conservancy Act. On 28/4/2008 the order referred as item no. (2) above along with 'C' Form notice directing him to vacate from the encroached area.
2. Against the order of the Tahsildar, the appellant approached the Honourable High Court of Kerala in WP(C) No.17516/2018 and the Honourable High Court has directed in the judgment dated 30/5/2018 directing to dispose the appeal petition, stay petition before this office within a time frame. On the basis of the same it was directed to the Tahsildar land records Vadakara to keep in abeyance further proceedings till the disposal of this appeal.WA.1571/2020 16
3. Aggrieved by the order of the Tahsildar land records/Vadakara, the appellant has filed an appeal in this office and pursuant to the same, both the appellant and opposite party were afforded with an opportunity of hearing in person. Advocate M. Rajesh appeared on behalf of the appellant on 8/8/2018 and 26/9/2018. The Document No. 973/1958 of Nadapuram Sub Registrar office dated 19/9/1958, copies of the judgment in OS No.87/1982 of Honourable Munsiff's Court, Nadapuram, copy of the AS No.8/1991 of Honourable Sub Court, Vadakara, SA No.584/1992 of the Honourable High Court of Kerala and copies of tax receipts of the year 94-95, 95-96.
4. It was submitted that the above property was owned by the appellants father named Moosakutty and litigation was filed against one OT Attakkoya Thangal and others with respect to the ownership of the property before the Honourable Munsiff's Court Nadapuram in OS 87/82 in which judgment was passed in favour of them. Challenging the same, AS No.8/1991 was filed before Honourable Sub Court, Vadakara and SA No.584/1992 before the Honourable High Court of Kerala which were dismissed. When the village officer Nadapuram refused to accept Tax, A writ petition was filed in the Honourable High Court of Kerala WP(C) No. 13778/18 but the Tahsildar (LR) Vadakara has issued an order dated 28/4/2018 under Section 12 of KLC Act, 1957 and the same is not in accordance with law and hence the appeal has to be allowed and set aside the order of the Tahsildar.
5. 'A' Form report was prepared and submitted by the village officer Nadapuram stating that one Sri. Kadangottu Kunjali, who is the person in possession of the adjacent land of the Thodu comprised in resurvey number 72 of Nadapuram village, Nadapuram Desom has encroached to an extent of 6.58 cents which is a part of that Thodu. On assessing the boundaries of the above Thodu in the presence of village officer Nadapuram and the Taluk Surveyor it was convinced that the western boundary described in the title deed of the appellant as Thodu relates to the eastern boundary and since the encroachment of Thodu is established. 'B' Form notice was issued to the encroacher in accordance with the Kerala Land Conservancy Act. Thereupon the party was represented through his advocate on 11/4/2018 and produced the judgments in Honourable Munsiff's Court, Nadapuram in OS No.87/82 in which judgment was passed in favour of them. Challenging the same AS No.8/1991 was filed before Honourable Sub Court, Vadakara and SA No.584/1992 before the Honourable High Court of Kerala. But in all these cases the Govt was not a party and since the name of the place, resurvey number etc are seen different in the document and as per the present revenue records the encroached land is the part of the Poramboku Thodu and hence, order was issued on 28/4/2018 along with 'C' Form notice. Thereafter, the Village Officer, Nadapuram, on 9/5/2018, has restored the property and handed over to the Grama Panchayat, Nadapuram, and the opposite WA.1571/2020 17 party has filed a statement to the effect that it was done in accordance with law.
6. In the land tax receipts produced along with the file, only the number of the Pattayam is endorsed. But the re-survey number or the extent of the property was not shown. Hence, the documents produced by the petitioner cannot be taken in evidence. Adjacent to the Poramboku Thodu comprised in re-survey number 72 on the eastern side property comprised in re-survey 71/5 is in possession of the appellant. In the partition deed number 973/1958 of Sub Registrar office, Nadapuram, the resurvey number of the property is entered as 71/5, old survey number 75/1B.
7. On the basis of perusal of the documents relating to the property and the subject matter of the property was examined by the Tahsildar land records, Vadakara, Taluk Surveyor and village officer Nadapuram and after hearing the appellant and opposite party and after perusing all the documents produced in the file and also the files relating to the same of Taluk Office Vadakara orders are hereby passed.
ORDER As per the land revenue records the property having an extent of 34 cents comprised in resurvey 72 of Nadapuram Village, Nadapuram Desom, Vadakara Taluk is Thodu. The above Thodu is passing through different Desoms named as Kammankodu, Nadapuram, Kakkamvelli of Nadapuram Village having different survey numbers in length wise. 'A' Form report was submitted by the village officer, Nadapuram on the basis of the finding that an extent of 6.58 cents which is a part of the Thodu comprised in survey number 72 has been encroached by the Appellant and carried out constructions. The document relied by the appellant Document No 973/1958 of the Sub registrar office Nadapuram, the name of the place is shown as Manniyur parambu of Thadangattu comprised in resurvey number 71/5, old survey number 75/1B. In the document, the western boundary is entered as Thodu. But as per the examination conducted in the property as per FMB it is convinced that the subject matter of the issue having an extent of 6.58 cents of land is also included in resurvey 72 which is a part of the Thodu. The property which is entered as Thodu is not WA.1571/2020 18 shown in the revenue records such as basic tax register, resettlement Adangal as the property of the party or its predecessors. In earlier occasions, the revenue divisional officers concerned with the same used to follow in accordance with law and issue orders registering the property as per MLR Act. But the above property has not been issued by registering the same in his name or to his ancestors. It was in the above circumstances after convincing that an extent of 6.58 cents of property comprised in resurvey 72 of Nadapuram Village, Nadapuram Desom, which is a part of the Thodu has been encroached by the appellant. The Tahsildar (LR) has issued the above order.
The protection of the Government land is the primary responsibility of the revenue department. Since the Government or Grama Panchayat of Nadapuram was not a party in the proceedings before Honourable Munsiff's Court Nadapuram in OS 87/82 in which judgment was passed in favour of them. Challenging the same AS 8/1991 was filed before Honourable Sub Court, Vadakara and SA 584/1992 before the Honourable High Court of Kerala, the above judgments is not an impediment to evict the encroachment of Puramboku Land.
In the above circumstances, the proceedings number H2-5897/18 dated 28/4/2018 issued by the Tahsildar (LR) as per the part of eviction initiated under Kerala Land Conservancy Act against the appellant who has encroached an extend of 6.58 cents of land which is a part of the Thodu comprised in resurvey 72 of Nadapuram village, Nadapuram Desom and vested with the Grama Panchayat, Nadapuram is seen issued in accordance with law and upheld as the same and the appeal petition submitted as per reference cited as (1) is hereby rejected. The stay order issued on 8/8/2018 by this office has become ineffective with WA.1571/2020 19 effect from the date of this order. The appeal is hereby closed and the direction of the Honourable High Court of Kerala in WP (C) 17516/2018 is complied herewith.
Signed Revenue Divisional Officer Vatakara."
13. Proceedings of the District Collector, Kozhikode, respondent No.3, dated 12.05.2019 (Exhibit-P14) reads thus:
"L.7.133/2019 PROCEEDINGS OF THE DISTRICT COLLECTOR, KOZHIKODE DATED 12.5.2019 (Present: S.Sambasiva Rao I.A.S) Sub: Kerala Land Conservancy Act-1957- Vadakara Taluk- Nadapuram Village- Encroachment of Puramboke Thodu (Canal)- Revision Petition Filed- regarding issuing of order.
Reference:- 1. Revision Petition dated 24.12.2018 filed by Sri. Kunjali, S/o (late) Moosakutty, Thadangatt (House) Nathapuram, Kozhikode.
2. Proceedings of the Tahsildar (Land Survey) H2- 5897/2018 dated 28.4.2018.
3. Proceedings No. J.86/2018 dated 26.11.2018 of the Revenue Divisional Officer , Vadakara.
4. Letter No H2- 5897/2018 dated 11.2.2019 issued by Tahsildar Land Survey, Vadakara.
As per reference mentioned as (2) the Tahsildar, Land Survey, Vadakara has issued an order directing Sri. Kunjali, S/o. (late) Moosakutty, Thadangatt, to vacate from the encroached land of Puramboke Thodu, having an extent of 6.58 Cents comprised in Re- Survey No 72 situated in Nadapuram Village, Vadakara Taluk, Nadapuram Desom.WA.1571/2020 20
Against the eviction order issued by Tahsildar Land Survey, Vadakara, Sri. Kunjali filed an Appeal Petition before the Revenue Divisional Officer, Vadakara and in the order issued as per reference mentioned as (3) the order issued by Tahsildar Land Survey against the encroachment of the appellant with respect to the land having an extent of 6.58 cents comprised in Re- Survey No 72 situated in Nadapuram Grama Panchayat, Nadapuram Village, Vadakara Taluk, Nadapuram Desom was upheld on a finding that it is in accordance with law in view of Land Conservancy Act and the appeal was rejected.
Aggrieved by the order referred as (3) above issued by Revenue Divisional Officer, Vadakara, filed a Revision Petition before this Office as per Section 16 of Kerala Land Conservancy Act, 1957 and Rule 31 of Kerala Land Conservancy Rules. In the said revision petition, it was pointed out that an extent of 3.83 Ares of land belongs to him and the Tahsildar Land Survey, Vadakara has done very serious damages to the properties of the petitioner and others. It was alleged that the property shown in the schedule does not belong to the Government and he has not encroached into the government property. Besides, the Tahsildar has not taken any steps to identify the properties of the petitioner and others. Hence it was prayed to stay the order issued by the Revenue Divisional Officer, Vadakara till the disposal of the Revision Petition. On the basis of the same directions were issued to the Tahsildar Land Survey, Vadakara to keep in abeyance the eviction proceedings the disposal of the Revision Petition and to make available a detailed statement in the matter.
While passing the order of Revenue Divisional Officer, Vadakara mentioned as item No (3) above, opportunity of hearing in person was afforded to appeal party and opposite party. Appeal party was represented on 8.8.2018 and 26.9.2018 through his advocate M.Ragesh and it is mentioned that he has produced the copies of the WA.1571/2020 21 Title Deed No 973/1958 of S.R.O Nadapuram, judgments in copies of the judgement in OS 87/1982 of Honourable Munsiff's Court Nadapuram, copy of the AS 8/1991 of Honourable Sub Court Vadakara, S.A 584/1992 of Honourable High Court of Kerala and copies of tax receipts of the year 94-95, 95-96.
Besides, the property concerned was inspected in the presence of the Tahsildar of land Survey, Village officer Nadapuram and Taluk Surveyor by and in the receipts produced the Re- Survey Number or the extent of the property is not entered and only the Pattayam Number is shown. The property which is entered as Thodu is not shown in the revenue records such as basic tax register, resettlement Adangal, as the property of the party or his predecessors. It is also stated that the above mentioned land has not been registered and transferred to the appeal party of his predecessors in view of MLR Act.
In the Revision Petition submitted by Sri. Kunjali, he was given an opportunity of personal hearing before the District Collector on 12.02.2019. In the said hearing Advocate Ragesh appeared on behalf of him and produced copies of the Title Deed No 973/1958 of S.R.O Nadapuram dated 13.9.1958. In the said hearing Village Officer, Nadapuram was present and explained that as per FMB the property comprised in Survey No.72, which is the subject matter in this issue, is a part of the Thodu.
In the report submitted by the Tahsildar Survey, Vadakara Village, Vadakara Taluk, it is reported that an extent of 34 cents of land is seen as Thodu, Tax not been paid as per revenue records. The said Thodu passes through different Desoms named as Kammankodu, Nadapuram, Kakkamvelli of Nadapuram Village having different survey numbers. An extent of 1 ½ cents comprised in Re-Survey No 72 which is a part of the above Thodu has been encroached by Sri. Kunjali and carried out improvements therein. It is informed that the 'B' form was issued WA.1571/2020 22 on 31.3.2018 on the basis of the 'A' form booked and submitted by the Village Officer, Nadapuram. Thereupon, Taluk Surveyor carried out inspection and found that a total extent of 6.58 cents was encroached. It was in the said circumstances; 'B' Form was issued on 26.4.2018 for a further extent of 5.08 cents as per Land Conservancy Act and also informed that Sri. Kunjali has produced OS 87/1982 of Honourable Munsiff Court Nadapuram, copy of the AS 8/1991 of Honourable Sub Court, Vadakara. The Tahsildar informed that in all these cases the Govt was not a party and since the name of the place, resurvey number etc are seen different in the document and as per the present revenue records the encroached land is the part of the Puramboku Thodu and hence, order was issued on 28/4/2018 along with 'C' Form notice.
In the hearing conducted on 19.2.2019, the party was represented by his counsel and produced the .................written on 31.3.1943, Plan issued by the Taluk Surveyor, Vatakara. In the argument notes submitted by the petitioner, it is stated that the subject matter of the complaint was in the ownership of Ammad Kutty from time immemorial and after Ahmad Kutty, Thadangattu Aarangadan Moosakutty obtained the property described in the petition along with other properties. Subsequently as per a partition deed number 973/1958 of Nadapuram sub Registry office, the entire property has been partitioned among Moosakutty and others. The 'A' Schedule of the partition deed was set apart as the share of Moosakutty. The property mentioned in the petition is included in 34 and in that property there are coconut trees having about 40 years of age. It is submitted that the income from the said property was shared between the petitioner and others. It was also informed that a suit number OS 87/1982 which was filed before Munsiff's Court Nadapuram against Attakkoya Thangal and others was allowed in favour of the plaintiffs.WA.1571/2020 23
The District Collector required to give clarification about the ownership claimed with respect to the property since in the hearing conducted on 19/2/2019 the contention that the petitioner is having property in survey No. 75/18, the property which is the subject matter of the issue is included in survey No. 75/18 and not included in re- survey No. 72 The advocate submitted that as per the .....................dated 31/3/1943, the entire property in possession of the petitioner is included in the schedule. If the boundaries and length of the property described the schedule is taken it can be seen that the subject matter of the property in issue is the part of the property owned by the petitioner and it has been marked in the FMB mistakenly as re-survey No. 72 and hence, in that effect, FMB is incorrect.
On the strength of the documents produced in the file, the documents produced by the petitioner, hearing the petitioner, and the Village Officer in person, the following order is passed in the Revision Petition.
The Revision Petition which was filed in connection with the encroachment of a part of the Thodu Tax not been paid, which comes to an extend of 6.58 cents comprised in Re-survey 72 situated in Nadapuram Village, Nadapuram Desom, Vadakara Taluk which was encroached by Sri Kunjali, Son of Moosakutty, Thadangattu House and on perusal of the related documents it is seen that an extend of 34 cents of land comprised in resurvey No 72 is Thodu Tax not been paid. On the basis of the finding that the petitioner has encroached into 6.58 cents of land, which is a part of Thodu, Tax not been paid and came out improvements the Village Officer, Nadapuram submitted 'A' Form report and since the Govt. land was unauthorizedly encroached, the Tahsildar (Land Survey), Vadakara issued orders requiring to vacate the encroached land. In the document number 973/1958 dated 13/9/1958 of Nadapuram Sub Registry produced by the petitioner, WA.1571/2020 24 the re-survey number is entered as 71/5, old survey No. 75/18. But, as per FMB, the property having an extent of 6.58 cents, which is a subject matter of this petition, is included in resurvey No. 72 which is a part of Thodu, Tax not been paid. In the FMB Thodu, Tax not been paid is clearly demarcated and on going through the sketch of the Tahsildar it is seen that the petitioner has encroached into the property. Since the Govt. is not a party to the suit OS 87/1982 on the file of Honourable Munsiff's Court Nadapuram, the judgment declared in that case shall not be binding on a matter to evict and encroachment in a Poramboku land. The ....................produced by the petitioner which was executed on 31/3/1943, and copies of the tax receipts of the years 1966, 1979, 1980 and 1999, the survey No of the property which is the subject matter of the petition in resurvey No 72, the survey No of the land is not seen entered. As per the records submitted by the petitioner, the property in possession of him is included in resurvey No. 71/5 and old survey No.75/13. The contention of the petitioner that since the property mentioned in the petition is a Government land, proceedings cannot be initiated as per Kerala Land Conservancy Act cannot be sustained. Besides, the petitioner could not produce any document in proof of his right over the above land. Hence, the orders issued by the Tahsildar Survey, Vadakara and the Revenue Divisional Officer, Vadakara are in accordance with Kerala Land Conservancy Act. On the basis of the finding that the property encroached by the petitioner is ........land as per revenue records and on the basis of failure of the part of the petitioner in producing any documents in proof of his right over the property, the proceedings and the steps taken by the opposite parties in evicting the petitioner is found correct. In the said circumstances, the property which is entered as ......land in the revenue records which is comprised in WA.1571/2020 25 resurvey number 72 having an extent of 6.58 cents, situated in Nadapuram Village, Nadapuram Desom, and since the petitioner could not produce any documents in proof of his right over the property the order of the Revenue Divisional Officer referred as Item No.(3) is upheld and the Revision Petition submitted by the petitioner, which is referred as (1) is hereby rejected and order has been passed accordingly.
The stay order which was issued on 22/1/2019 and forwarded to the Tahsildar Survey, Vadakara in this matter from this office has become ineffective from the date of this order.
District Collector"
14. Proceedings of respondent No.4, Land Revenue Commissioner, Thiruvananthapuram, dated 14.10.2019 read thus:
"PROCEEDINGS OF THE LAND REVENUE COMMISIONER (Public office Building, Museum Junction, Thiruvananthapuram - 695033) (Present : C A Latha, IAAS)
------------------------------------------------------------------------------------------
NO. L.R.K 427856/19 Dated: 14/10/19
------------------------------------------------------------------------------------------ SUBJECT - Land conservancy - Kozhikode district - Vadakara Thaluk, Nadapuram Village - Encroachment of Puramboku - appeal petition filed against the order of the District Collector - Orders are issued.
REFERENCE - 1. Proceedings of the Tahsildar Surveys, Vadakara No H2 5897/18 dated 28/4/18.
2. Proceedings No J-86/2018 dated 26/11/18 issued by the Revenue Divisional Officer, Vadakara.
3. Proceedings No L-7-133/2019 dated 12/5/19 issued by the District Collector Kozhikode.
4. Appeal petition filed by Sri Kunjali Son of Late Moosakutty, Thadangattu house, Nadapuram dated 3/7/2019 which was produced in this office on 17/7/19.
5. Report No L7-133/2019 dated 3/9/2019 of the District Collector of Kozhikode.WA.1571/2020 26
As per the reference cited as (1) above, eviction order was issued by the Tahsildar Survey, Vadakara to Sri Kunjali, Son of Late Moosakutty who is the owner of the adjacent property of the Puramboku Thodu comprised in Resurvey 72 having an extend of 6.58 cents situated in Nadapuram Village, Nadapuram Desom, Vadakara Taluk who has unauthorizedly encroached and taken possession of the said Puramboku Land. On the basis of the same, on 9/5/2008 the encroached land was repossessed and transferred to Grama Panchayat, Nadapuram.
Against the eviction order issued by Tahsildar Survey, Vadakara, Sri Kunjali has filed an appeal petition dated 8/5/2018 before the Revenue Divisional Officer, Vadakara. The order issued by the Revenue Divisional Officer referred as Item No.(2) was upheld by the order of the Tahsildar Survey, Vadakara issued as a part of eviction proceedings as per Kerala Land Conservancy Act against the encroachment of 6.58 cents of land which is a part of a Thodu for which tax is not being paid comprised in resurvey 72 of Nadapuram Village, Nadapuram Desom and vested with the Grama Panchayat Nadapuram and the Appeal Petition was rejected.
Aggrieved by the order of Revenue Divisional Officer, Vadakara, Sri Kunjali submitted a Revision Petition before the District Collector Kozhikode. The Revision Petitioner produced copy of the document No 973/1958 dated 13/9/1958 of Nadapuram Sub Registry, judgments passed in OS 87/88 of Munsiff's Court Nadapuram, AS 8/91 of Honourable Sub Judge, Vadakara and judgment in SA 584/1992 of Honourable High Court of Kerala and the tax receipts of the years 94/95, 95/96 were produced by the party. Thereupon, the property which is the subject matter of the issue was inspected in the presence of the Tahsildar Survey, Vadakara, Village Officer, Nadapuram and the Taluk Surveyor and on perusing the connected documents and it is seen that in the tax receipts which were made WA.1571/2020 27 available the Survey No or the extend of the property is not entered and the only number seen is the number of the Pattayam. The said property which is entered as Thodu, for which tax is not being paid, is not shown as a property of the appellant or his ancestors in the basic tax register or resettlement Adangal. The district collector has found that the above mentioned property has not been registered in favour of the appeal party or his ancestors. As per the revenue records, an extent of 34 cents of land comprised in resurvey 72 of Nadapuram Village, Nadapuram Desom, Vadakara Taluk, is a Thodu for which tax is not being paid. The above Thodu, which flows through Kammangadu, Nadapuram, Kakkamvelli Desom of Nadapuram Village is included in various survey numbers. When the Taluk surveyor inspected the property, he found that Sri. Kunjali has encroached into a total extent of 6.58 cents of land comprised in resurvey 72. The Tahsildar Survey, Vadakara has issued eviction orders under Kerala Land Conservancy Act. Against the order of the Tahsildar, an appeal was filed before the RDO in which the RDO upheld the finding of the Tahsildar and in the Revision Petition filed before the Collector was rejected by the District Collector on finding that the decision taken by the RDO is in accordance with Law as per Item No (3) referred above. This appeal is filed in this office against the said order Sri Kunjali, Son of Moosakutty filed the appeal referred as Item No (4).
In the hearing conducted on 19/9/2019 at this office, Advocate Sri. M. Harikumar represented the appeal party Sri Kunjali and for the District Collector, Sri. Krishnan MK, Deputy Tahsildar, Taluk Office, Vadakara appeared. The following given facts are convinced on the basis of hearing the appellant party and the opposite party and meticulously verifying the related documents. The property having an extent of 34 cents comprised in resurvey 72 is entered as Thodu for which tax is not being paid as per Revenue records. The Village officer Nadapuram has submitted 'A' Form report on WA.1571/2020 28 the basis of the finding that the petitioner has encroached into 6.5 cents of land which is a part of resurvey 72 and has made improvements. It has been convinced that, on the basis of the unauthorized encroachment of Govt land, the above order was issued directing to evict the encroacher, the Tahsildar Survey, Vadakara has issued the order.
In the document No 973 of 1958 dated 13/9/1958 of Nadapuram Sub Registry which was produced by the Revision Petitioner during the time of evidence. It is seen that the resurvey No mentioned in that document is 71/5 and old survey number 75/1B. As per FMB the disputed property of 6.58 cents is included in resurvey 72 and tax not being paid and the Thodu is clearly demarcated and it is seen from the sketch of the Tahsildar and the report of the district collector that the petitioner has encroached into the property. Since the Govt was not a party to the suit OS No. 87/1982 of Honourable Munsiff's Court, Nadapuram and in SA No. 584 of 92 of Vadakara Sub Court. The judgment of the above courts is not an impediment for the Govt to evict the encroacher with respect to the Poramboku land. The ................ executed on 31/3/1943 produced by the appellant and the tax receipts of the years 1966, 1979, 1980, 1999 does not mention the land comprised in resurvey 72 and no survey number is entered therein. In to documents submitted by the appellate party shows that the property which he is in possession is included in resurvey 71/5 and old survey number 71/1B and also the appellant could not produce any documents in proof of his right over the property, it has come out that the orders passed by the Tahsildar Survey, Vadakara, Revenue Divisional Officer, Vadakara, District collector, Kozhikode are in conscience with the Kerala Land Conservancy Act. Since it is found that the property encroached by the appellate party is a WA.1571/2020 29 property for which land tax has not been paid as per revenue records and in the circumstances that the appellate party could not produce any documents in proof of his right over the property it has been convinced that the eviction proceedings taken by the opposite parties are in accordance with law. Since the appellate party could not prove the right over the property having an extent of 6.58 cents comprised in resurvey 72 of Nadapuram Village, Nadapuram Desom wherein it is shown as property for which tax is not being paid as per revenue records. The order of the District Collector referred as item No (3) is upheld and the appeal petition referred as Item No (4) by Kunjali, Son of Moosakutty, Thadangattu Vettil, Nadapuram is hereby rejected.
Signed Commissioner"
15. Kerala Land Conservancy Act, 1957, is an Act to check the unauthorised occupation of Government lands and to provide for matters connected therewith or incidental thereto. Section 3 of the Act speaks about, property of Government defined, and it reads thus:
"3. Property of Government defined.- (1) All public roads, streets, lanes, and paths,the bridges, ditches, dykes and fences on or beside the same, the bed of the sea and of harbours and creeks below high water mark, the beds and banks of rivers, streams, irrigation and drainage channels, canals, tanks, lakes, backwaters and water courses, and all standing and flowing water, and all lands wheresoever situated, save in so far as the same are the property of-
(a) Jenmies, Wargdars or holders of Inams; or
(b) (persons registered in the revenue records as) holders WA.1571/2020 30 of lands in any way subject to the payment of land revenue to the Government, or
(c) any other registered holder of land in proprietary right;
or
(d) any person holding land under grant from the Government otherwise than by way of a lease or licence.
(e) any person claiming through or holding under any of the persons referred to in clauses (a), (b), (c) or (d), are, and are hereby declared to be, the property of Government, except as may be otherwise provided by any law for the time being in force, subject to all rights of way and other public rights and to the natural and easement rights of other landowners and to all customary rights legally subsisting.
Explanation I.- Lands once registered in the name of a person but subsequently abandoned or relinquished, and all lands held by right of escheat, purchase, resumption, reversion or acquisition under the Land Acquisition Act for the time being in force, are the property of Government within the meaning of this section.
Explanation 1A.- Where the ownership and possession, or the possession, of any land are or is vested in the Government under Section 86 or Section 87 of the Kerala Land Reforms Act, 1963 (1 of 1964), such land shall, so long as it is in the possession of the Government, be the property of Government within the meaning of this section).
Explanation II.- In this section, the expression 'high-water mark' means the highest point reached by the ordinary spring tide at any season of the year.
Explanation III.- Where, in regard to roads, lanes and canals, survey stones had been, in the original demarcation under the Survey Act, in force, planted for the sake of convenience and safety inside compound walls and gates of compounds, in house verandahs door steps, porticoes masonry drains and similar structures of a permanent nature, such walls, gates, verandahs, etc., shall not be deemed to be property of Government within the meaning of this section.
Explanation IV.- Lands belonging to the Government of any other state in India or to the Kerala State Electricity Board or to a University established by law or to a corporation owned or controlled by the Government of Kerala or to (any Panchayat as WA.1571/2020 31 defined in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or any Municipality as defined in the Kerala Municipality Act 1994 (20 of 1994)) shall be deemed to be the property of Government within the meaning of this section). (2). All unassessed lands within the limits of private estates used or reserved for public purposes or for the communal use of villagers, and all public roads and streets vested in any local authority shall, for the purpose of this Act, be deemed to be the property of Government."
16. Section 4 of the Act, 1957 speaks about "Poramboke" defined and it reads thus:
"4. " Poramboke" defined.- "Poramboke" shall mean and include unassessed lands which are the property of Government under Section 3(1) or (2) used reserved for public purposes or for the communal use of villagers, such as-
(a) all public roads, streets, lanes pathways, the bridges, ditches, dykes and fences on or beside the same;
(b) the beds and banks of rivers, irrigation and drainage channels, traffic canals, tanks, lakes, back-waters and water courses;
(c) markets, burial grounds, landing ghauts; and
(d) all other property which the Government may, for the purpose of this Act, from time to time, declare to be poramboke.
(2) "Occupant" defined.- "Occupant" shall mean a person actually in possession or occupation of a land which is the property of Government."
17. Section 5 of the KLC Act, 1957 speaks about the land which is the property of the Government not to be occupied without permission and it reads thus:
WA.1571/2020 32
"5. Land which is the property of Government not to be occupied without permission.- From and after the commencement of this Act, it shall not be lawful for any person to occupy a land which is the property of Government, whether a poramboke or not, without permission from the Government or such officer of the Government as may be empowered in this behalf.
Explanation.- For the removal of doubts it is hereby declared that the erection of any wall, fence or building or the putting up of any overhanging structure or projection (whether on a temporary or permanent basis) on or over any land aforesaid shall be deemed to be occupation of such land.) (2) Notwithstanding anything contained in sub- section (1), it shall not be lawful for any person to erect or cause to erect any wall, fence or building or put up any overhanging structure or projection (whether on a temporary or permanent basis) on or over any land referred to in sub-section (1) except under and in accordance with the terms and conditions of a licence issued by the Government or such officer of the Government as may be empowered by them in this behalf.
(3) Any person desirous of obtaining a licence referred to in sub-section (2) may apply to the Government or to such officer of the Government as may be empowered by them in this behalf for an appropriate licence.
(4) An application under sub-section (3) shall be in such form and shall contain such particulars and shall be accompanied by such fee, as may be prescribed by rules made under this Act.) "
WA.1571/2020 33
18. Section 7 of the Act, 1957 speaks about punishment for unauthorisedly occupying land which is the property of Government and it reads thus:
"7. Punishment for unauthorisedly occupying land which is the property of Government.- Notwithstanding anything contained in this Act,-
(a) whoever with the intention of using or holding any land which is the property of Government, whether a poramboke or not, for any non-Governmental purpose, unlawfully enters or occupies such land shall be punishable with imprisonment of either description for a term which shall not be less than three years but which may extend to five years and shall also be liable to pay a fine which shall not be less than fifty thousand rupees, but which may extend to two lakhs rupees; Provided that a person who is occupying any Government land not exceeding 5 cents as on the date of commencement of this Act and is not having any other land in his name or in the name of his family members and is having any of the following documents in order to prove that he was residing therein, namely, record of rights or a ration card or an electoral identity card issued in the address of such Government land which he is so occupying or a proceeding assigning house number to a building in such property or an electric connection or a water connection, issued by the competent authorities of the Government or the Local Self Government Institutions or the respective statutory bodies, as the case may be, shall not be considered as an unlawful occupant for the purpose of imposing punishment:
(b) whoever, for the purpose of effecting transfer of any land which is the property of Government for consideration or otherwise-
(i) commits the offence of cheating by fraudulently or dishonestly creating documents; or
(ii) makes or creates any forged document in support of any claim or title to such land shall be punishable with imprisonment WA.1571/2020 34 of either description for a term which shall not be less than five years but which may extend to seven years and shall also be liable to pay a fine which shall not be less than fifty thousand rupees, but which may extend to two lakhs rupees;
(c) Whoever being an officer entrusted with the responsibility of reporting unlawful occupation of land which is the property of Government or of initiating action to remove such unauthorised occupation fails to report or to initiate action to remove such unlawful occupation, shall be punishable with imprisonment of either description for a term which shall not be less than three years but which may extend to five years and shall also be liable to pay a fine which shall not be less than fifty thousand rupees, but which may extend to two lakhs rupees;
(d) Whoever erects or causes to erect any wall, fence or building or puts up or causes to put up any overhanging structure or projection, where on a temporary or permanent basis in contravention of sub-section (2) of Section 5, shall be punishable with imprisonment of either description for a term of which shall not be less than one year but which may extend to two years and shall also be liable to pay a fine which shall not be less than ten thousand rupees, but which may extend to twenty five thousand rupees and in the case of a continuing contravention, such additional fine which may extend to five hundred rupees for each day during which the contravention continues after conviction for the first such contravention."
19. Section 12 of the Act speaks about prior notice to the occupant and it reads thus:
"12. Prior notice to occupant, etc .-The Collector shall, before passing an order under this Act, give notice to the occupant or other person likely to be affected by the order, and record any statement which such occupant or person may make and any WA.1571/2020 35 evidence which he may adduce within a reasonable time; and all orders passed by the Collector under this Act shall be in writing and under his hand.
(Provided that no such notice shall be necessary-
(i) when the Collector takes action under sub-section (3) of Section 11; or
(ii) in the case of any person unauthorisedly occupying any land which is the property of Government, if, within a period of two years prior to the date of such occupation, he had been evicted from such land under Section 11 or had vacated such land voluntarily after the receipt of a notice under this section or Section 11.) The Collector may require any subordinate officer not below the rank of Deputy Tahsildar or any other officer authorised by the Government in this behalf to hold the enquiry as prescribed in the preceding paragraph and submit the record to him; and on such record the Collector may pass orders.) For the purpose of Section 199 of the Indian Penal Code the proceedings taken by the Collector under this section shall be deemed to be judicial proceedings."
20. Section 13 of the Act speaks about power of the Government to make rules and it reads thus:
"13. Power to make rules.- (1) The Government may make rules or orders, either generally or in any particular instance,-
(a) regulating the rates of assessment under Section 8 (1);
(b) regulating the imposition of prohibitory assessment under Section 8 (2) ;
(c) declaring that any particular land or class of lands shall not be open to occupation;
(d) regulating the service of notices under this Act;
(e) regulating the manner in which the powers of the Collector under this Act may be exercised; and WA.1571/2020 36
(f) generally to carry out the provisions of this Act. Such general rules or orders shall be made only after previous publication in the Gazette.
(2) All rules and orders framed under sub-section (1) shall be placed on the table of the Assembly for a period of fourteen days when it is in session and shall be subject to such modification by way of amendment or repeal made by the Assembly during the period when they are so laid."
21. Section 16 of the Kerala Land Conservancy Act, 1957 speaks about appeal and revision, and it reads thus:
"16. Appeal and revision.- (1) Any person aggrieved by any decision or order under this Act of any officer authorised under Section 15 may appeal,-
(a) where such officer is the Revenue Divisional Officer, to the Collector:
Provided that no such appeal shall lie in any case where the order is passed by the Revenue Divisional Officer on appeal under Clause (b); and
(b) in all other cases, to the Revenue Divisional Officer, and the Collector or the Revenue Divisional Officer, as the case may be may pass such order on the appeal as he thinks fit.
(2) The Collector may either suo motu or on application revise any decision made or order passed under this Act by any officer authorised under Section 15:
Provided that where such officer is the Revenue Divisional Officer, the Collector shall not on application revise any decision made or order passed otherwise than on appeal:
Provided further that the Collector shall not revise any decision or order if an appeal against such decision or order is pending or if the time for preferring appeal, if any, against such decision or order has not expired.
(3) Any person aggrieved by any decision or order of the Collector under this Act (otherwise than on appeal or revision) WA.1571/2020 37 may appeal to the Commissioner of Land Revenue, and the Board of Revenue may pass such order on the appeal as it thinks fit.
(4) The Commissioner of Land Revenue may either Suo motu or on application revise any order passed by the Collector on appeal.
(5) The Government may either suo motu or on application revise any order passed by the Commissioner of Land Revenue on appeal.
(6) No order shall be passed under sub-section (1) or sub- section (2) or sub-section (3) or sub-section, (4) or sub-section (5) without giving the party who may be affected thereby an opportunity of being heard.
(7) Pending disposals of any appeal or revision under this Act, the appellate authority or the revising authority, as the case may be, may suspend the execution of the decision or order appealed against or sought to be revised."
22. Giving due consideration to the statutory provisions, referred to above, and the procedure followed, we find there is concurrent findings of fact, as regards the nature of subject property, thodu, and its banks encroached. Findings of three authorities, viz., original, appellate, and revisional cannot be said to be perverse. In this context, let us consider a few decisions on perversity.
(i) In Arulvelu v. State reported in (2009) 10 SCC 206, the Hon'ble Supreme Court, at paragraphs 27, 29 and 30, explained what "perverse" means, "27. The expression "perverse" has been defined by various dictionaries in the following manner:
WA.1571/2020 38
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE: Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English - International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
......
29. In Kuldeep Singh v. The Commissioner of Police, (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under:
"9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at with no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
WA.1571/2020 39
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under:
"7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
(ii) In The General Manager (P) Punjab & Sind Bank v. Daya Singh reported in (2010) 11 SCC 233, at paragraph 24, the Hon'ble Supreme Court, held as follows:
"24. Absence of reasons in a disciplinary order would amount to denial of natural justice to the charge-sheeted employee. But the present case was certainly not one of that category. Once the charges were found to have been established, the High Court had no reason to interfere in the decision. Even though there was sufficient documentary evidence on record, the High Court has chosen to hold that the findings of the enquiry officer were perverse. A perverse finding is one which is based on no evidence or one that no reasonable person would arrive at. This has been held by this Court long back in Triveni Rubber & Plastics v. CCE, AIR 1994 SC 1341. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has WA.1571/2020 40 been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arulvelu v. State, (2009) 10 SCC 206. The decision of the High Court cannot therefore be sustained."
(iii) In S.R.Tiwari v. Union of India reported in (2013) 6 SCC 602, at paragraph 30, the Hon'ble Supreme Court held as follows:
"30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with."
(iv) In Oil and Natural Gas Corporation Ltd. v. Western Geco international Ltd. [(2014) 9 SCC 263], the Hon'ble Apex Court observed thus:
"29. No less important is the principle now recognised as a salutary juristic fundamental in administrative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a Court of law. Perversity or irrationality of decisions is tested on the touchstone of Wednesbury's principle of reasonableness. Decisions that fall short of the standards of reasonableness are open to challenge in a Court of law often in writ jurisdiction of the Superior courts but no less in statutory processes wherever the same are available."
(v) What is 'perverse' has further been considered by the High Court of Himachal Pradesh in RSA No. 436 of 2000, titled 'Rubi Sood and another v. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015, in the following manner:-
"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in WA.1571/2020 41 miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
(vi) In Ashrufi Devi v. State of Uttarakhand and Ors. [Criminal Misc.
Application No. 178 of 2012, decided on 19.04.2017], the High Court of Uttarakhand held thus:
"10. Concurrent findings of the two courts below can be upset by this Court only on the ground of perversity, which means 'outrageous defiance of logic'. Irrationality and perversity are recognized grounds of judicial review which is available on three grounds-illegality, irrationality and procedural impropriety.
11. It is also a settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction. Inherent jurisdiction under Section 482 of Cr. P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself. The applicant, in the instant case, is unable to pass those tests."
23. Contention of Mr. T. Krishnanunni, learned Senior Counsel appearing for the appellant, on the basis of the documents marked in the inter se suit between the appellant and individuals, regarding possession, decision in the suit, further appeals inter se, wherein Government is not a party therein, has been considered by all the statutory authorities. There is WA.1571/2020 42 no declaration of title against the Government or the authorities, who are vested with rights of thodu and the banks, in terms of the statutory provisions, extracted above.
24. Reliance on settled possession, partition said to have been effected between the parties therein, can only be between parties inter se, and not the Government or the authorities, vested with the rights under the statutory provisions.
25. It is well settled that a decision rendered by an administrative authority can be interfered in judicial review, in exercise of Article 226 of the Constitution of India, if the process in arriving at the decision is contrary to the statutory provisions and not the decision. In this context, reference can be made to the following decisions:
"(i) The principle of "Wednesbury unreasonableness" or irrationality, classified by Lord Diplock as one of the grounds for intervention in judicial review, was lucidly summarised by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., reported in (1948) 1 KB 223 : (1947) 2 All ER 680 as follows:
"...the court is entitled to investigate the action of the local authority with a view of seeing whether it has taken into account matters which it ought not to take into account, or conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere."WA.1571/2020 43
(ii) In Council of Civil Service Unions v. Minister for the Civil Service, reported in (1984) 3 All ER 935, Lord Diplock enunciated three grounds upon which an administrative action is subject to control by judicial review, viz. (i) illegality (ii) irrationality and (iii) procedural impropriety, as follows:
"By "illegality" he means that the decision-maker must understand correctly the law that regulates his decision- making power and must give effect to it, and whether he has or has not, is a justiciable question; by "irrationality" he means "Wednesbury unreasonableness". It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided, could have arrived at it; and by "procedural impropriety" he means not only failure to observe the basic rules of natural justice or failure to act with procedural fairness, but also failure to observe procedural rules that are expressly laid down in the legislative instrument by which the tribunal's jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
(iii) In Shri Sitaram Sugar Co. Ltd. and Ors. v. Union of India (UOI) and Ors. [(1990) 3 SCC 223], the Hon'ble Apex Court observed thus:
"56. The Court has neither the means nor the knowledge to re-evaluate the factual basis of the impugned orders. The Court, in exercise of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence. In the words of Justice Frankfurter of the U.S. Supreme Court in Railroad Commission of Texas v. Rowan & Nichols Oil Company, 311 US 570, 85 L. ed. 358:
"Nothing in the Constitution warrants a rejection of these expert conclusions. Nor, on the basis of intrinsic skills and equipment, are the federal courts qualified to set their independent judgment on such matters against that of the chosen state authorities.... When we consider the limiting conditions of litigation the adaptability of the judicial process only to issues definitely circumscribed and susceptible of being judged by the techniques and criteria within the special competence of lawyers it is clear that the Due Process Clause does not require the feel of the expert to be supplanted by an independent view WA.1571/2020 44 of judges on the conflicting testimony and prophecies and impressions of expert witnesses."
This observation is of even greater significance in the absence of a Due Process Clause.
57. Judicial review is not concerned with matters of economic policy. The Court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either. The Court does not supplant the "feel of the expert" by its own views. When the legislature acts within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact which are conclusive provided such findings satisfy the test of reasonableness. In all such cases, judicial inquiry is confined to the question whether the findings of fact are reasonably based on evidence and whether such findings are consistent with the laws of the land. As stated by Jagannatha Shetty, J. in M\s. Gupta Sugar Works, (supra):
"......the court does not act like a chartered accountant nor acts like an income tax officer. The court is not concerned with any individual case or any particular problem. The court only examines whether the price determined was with due regard to considerations provided by the statute. And whether extraneous matters have been excluded from determination."
(iv) In State of U.P. v. Johri Mal, reported in (2004) 4 SCC 714, the Hon'ble Supreme Court observed thus:
"The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi- judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law or do the courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review court."
(v) In Rameshwar Prasad v. Union of India, reported in (2006) 2 SCC 1, the Hon'ble Supreme Court observed thus:WA.1571/2020 45
"A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. It is an unwritten rule of law, constitutional and administrative, that whenever a decision-making function is entrusted to be subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote."
(vi) In Jayrajbhai Jayantibhai Patel v. Anilbhai Jayanitbhai Patel, [(2006) 8 SCC 200], the Hon'ble Apex Court held thus:--
"18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self- recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision."
The following passage from Professor Bernard Schwartz's book Administrative Law (Third Edition) aptly echo's our thoughts on the scope of judicial review:
"Reviewing courts, the cases are now insisting, may not simply renounce their responsibility by mumbling an indiscriminate litany of deference to expertise. Due WA.1571/2020 46 deference to the agency does not mean abdication of the duty of judicial review and rubber-stamping of agency action: [W]e must accord the agency considerable, but not too much deference; it is entitled to exercise its discretion, but only so far and no further."
Quoting Judge Leventhal from Greater Boston Television Corp. v. FCC, 444 F. 2d 841 (D.C. Cir. 1970), he further says:
"...the reviewing court must intervene if it "becomes aware...that the agency has not really taken a 'hard look' at the salient problems, and has not genuinely engaged in reasoned decision-making..."
(vii) In Ganesh Bank of Kurundwad Ltd. v. Union of India, reported in (2006) 10 SCC 645, the Hon'ble Supreme Court, held as under:--
"15. The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.
50. There should be judicial restraint while making judicial review in administrative matters. Where irrelevant aspects have been eschewed from consideration and no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, there is no scope for interference. The duty of the court is (a) to confine itself to the question of legality; (b) to decide whether the decision making authority exceeded its powers (c) committed an error of law (d) committed breach of the rules of natural justice and (e) reached a decision which no reasonable Tribunal would have reached or (f) abused its powers. Administrative action is subject to control by judicial review in the following manner:
(i) Illegality.- This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury
unreasonableness.
(iii) Procedural impropriety.
51. .........................................Professor De Smith in his classical work "Judicial Review of Administrative Action" 4 th Edition at pages 285-287 states the legal position in his own WA.1571/2020 47 terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (I) failure to exercise discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires."
(viii) In Bank of India v. T. Jogram reported in (2007) 7 SCC 236, the Hon'ble Supreme Court has held that it is well settled principle of law that Judicial review is not against the decision, but is against the decision making process.
(ix) In Jagdish Mandal v. State of Orissa and Ors. [(2007) 14 SCC 517], the Hon'ble Supreme Court held thus:
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out.WA.1571/2020 48
The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.
The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold............................"
(x) In State of Maharashtra v. Prakash Prahland Patil reported in (2009) 12 SCC 159, the Hon'ble Apex Court, at paragraphs 5 and 6, held as follows:
"5. The scope for judicial review has been examined by this court in several cases. It has been consistently held that the power of judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the supreme lex to other organs of the State. A mere wrong decision, without anything more, in most of the cases will not be sufficient to attract the power of judicial review. The supervisory jurisdiction conferred upon a court is limited to see that the authority concerned functions within its limits of its authority and that its decisions do not occasion miscarriage of justice.
6. The courts cannot be called upon to undertake governmental duties and functions. Courts should not ordinarily interfere with a policy decision of the State. While exercising power of judicial review the court is more concerned with the decision making process than the merit of the decision itself."
(xi) In All India Railway Recruitment Board v. K. Shyam Kumar [(2010) 6 SCC 614], the Hon'ble Supreme Court, held as follows:
"22. Judicial review conventionally is concerned with the question of jurisdiction and natural justice and the Court is not much concerned with the merits of the decision but how the decision was reached. In Council of Civil Service Unions v. Minister of State for Civil Service, (1984) 3 All ER 935 the WA.1571/2020 49 (GCHQ Case) the House of Lords rationalized the grounds of judicial review and ruled that the basis of judicial review could be highlighted under three principal heads, namely, illegality, procedural impropriety and irrationality. Illegality as a ground of judicial review means that the decision maker must understand correctly the law that regulates his decision making powers and must give effect to it. Grounds such as acting ultra vires, errors of law and/or fact, onerous conditions, improper purpose, relevant and irrelevant factors, acting in bad faith, fettering discretion, unauthorized delegation, failure to act etc., fall under the heading "illegality". Procedural impropriety may be due to the failure to comply with the mandatory procedures such as breach of natural justice, such as audi alteram partem, absence of bias, the duty to act fairly, legitimate expectations, failure to give reasons etc.
23. Ground of irrationality takes in Wednesbury unreasonableness propounded in Associated Provincial Picture Houses Limited v. Wednesbury Corporation, (1947) 2 All ER 680, Lord Greene MR alluded to the grounds of attack which could be made against the decision, citing unreasonableness as an 'umbrella concept' which covers the major heads of review and pointed out that the court can interfere with a decision if it is so absurd that no reasonable decision maker would in law come to it. In GCHQ Case (supra) Lord Diplock fashioned the principle of unreasonableness and preferred to use the term irrationality as follows:
"By 'irrationality' I mean what can now be succinctly referred to as "Wednesbury's unreasonableness", ....... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
24. In R. v. Secretary of State for the Home Department ex parte Brind, (1991) 1 All ER 720, the House of Lords re- examined the reasonableness of the exercise of the Home Secretary's discretion to issue a notice banning the transmission of speech by representatives of the Irish Republican Army and its political party, Sinn Fein. Court ruled that the exercise of the Home Secretary's power did not amount to an unreasonable exercise of discretion despite the issue involving a denial of freedom of expression. House of Lords however, stressed that in all cases raising a human rights issue proportionality is the appropriate standard of review.
25. The House of Lords in R (Daly) v. Secretary of State for the Home Department, (2001) 2 AC 532 demonstrated how WA.1571/2020 50 the traditional test of Wednesbury unreasonableness has moved towards the doctrine of necessity and proportionality. Lord Steyn noted that the criteria of proportionality are more precise and more sophisticated than traditional grounds of review and went on to outline three concrete differences between the two:
(1) Proportionality may require the reviewing Court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions.
(2) Proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations.
(3) Even the heightened scrutiny test is not necessarily appropriate to the protection of human rights.
Lord Steyn also felt most cases would be decided in the same way whatever approach is adopted, though conceded for human right cases proportionality is the appropriate test.
26. The question arose as to whether doctrine of proportionality applies only where fundamental human rights are in issue or whether it will come to provide all aspects of judicial review. Lord Steyn in R. (Alconbury Development Limited) v. Secretary of State for the Environment, Transport and the Regions, (2001) 2 All ER 929 stated as follows:--
"I consider that even without reference to the Human Rights Act, 1998 the time has come to recognize that this principle (proportionality) is part of English administrative law not only when Judges are dealing with Community acts but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing".
Lord Steyn was of the opinion that the difference between both the principles was in practice much less than it was sometimes suggested and whatever principle was applied the result in the case was the same.
27. Whether the proportionality will ultimately supersede the concept of reasonableness or rationality was also considered by Dyson Lord Justice in R. (Association of British Civilian Internees: Far East Region) v. Secretary of State for Defence, [2003] QB 1397 and held as follows:WA.1571/2020 51
"We have difficulty in seeing what justification there now is for retaining Wednesbury test ..... but we consider that it is not for this Court to perform burial rights. The continuing existence of the Wednesbury test has been acknowledged by House of Lords on more than one occasion. A survey of the various judgments of House of Lords, Court of Appeals, etc. would reveal for the time being both the tests continued to co-exist."
28. Position in English Administrative Law is that both the tests that is. Wednesbury and proportionality continue to co- exist and the proportionality test is more and more applied, when there is violation of human rights, and fundamental freedom and the Wednesbury finds its presence more on the domestic law when there is violations of citizens ordinary rights. Proportionality principle has not so far replaced the Wednesbury principle and the time has not reached to say good bye to Wednesbury much less its burial.
29. In Huang case, (2007) 4 All ER 15 (HL), the House of Lords was concerned with the question whether denial of asylum infringes Article 8 (Right to Respect Family Life) of the Human Rights Act, 1998. House of Lords ruled that it was the duty of the authorities when faced with individuals who did not qualify under the rules to consider whether the refusal of asylum status was unlawful on the ground that it violated the individual's right to family life. A structured proportionality test has emerged from that decision in the context of the violation of human rights. In R (Daly) (supra) the House of Lords considered both common law and Article 8 of the convention and ruled that the policy of excluding prisoners from their cells while prison officers conducted searches, which included scrutinizing privileged legal correspondence, was unlawful.
30. Both the above-mentioned cases, mainly concerned with the violation of human rights under the Human Rights Act, 1998 but demonstrated the movement away from the traditional test of Wednesbury unreasonableness towards the test of proportionality. But it is not safe to conclude that the principle of Wednesbury unreasonableness has been replaced by the doctrine of proportionality.
31. Justice S.B. Sinha, as His Lordship then was, speaking for the Bench in the State of U.P. v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276 after referring to the judgment of the Court of appeal in Huang v. Secretary of State for the Home Department, (2005) 3 All ER 435, R. v.WA.1571/2020 52
Secretary of State of the Home Department, ex parte Daly, (2001) 3 All ER 433 (HL) opined that Wednesbury principle may not now be held to be applicable in view of the development in constitutional law and held as follows:
"24. While saying so, we are not oblivious of the fact that the doctrine of unreasonableness is giving way to the doctrine of proportionality.
25. It is interesting to note that the Wednesbury principles may not now be held to be applicable in view of the development in constitutional law on this behalf. See, for example, Huang v. Secy. of State for the Home Deptt. wherein referring to R. v. Secretary of State of the Home Department, ex parte Daly, it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury, but involves a full-blown merit judgment, which is yet more than ex p. Daly, requires a judicial review where the court has to decide a proportionality issue."
32. Sheo Shanker Lal Srivastava case (supra) was later followed in Indian Airlines Ltd. v. Prabha D. Kanan, reported in (2006) 11 SCC 67. Following the above mentioned two judgments in Jitendra Kumar v. State of Haryana, reported in (2008) 2 SCC 161, the Bench has referred to a passage in HWR Wade and CF Forsyth on Administrative Law, 9 th Edition. (2004), pages 371-372 with the caption "Goodbye to Wednesbury" and quoted from the book which reads as follows:
"The Wednesbury doctrine is now in terminal decline but the coup de grace has not yet fallen, despite calls for it from very high authorities" and opined that in some jurisdictions the doctrine of unreasonableness is giving way to doctrine of proportionality."
33. Indian Airlines Ltd.'s case and Sheo Shanker Lal Srivastava's case (supra) were again followed in State of Madhya Pradesh v. Hazarilal, (2008) 3 SCC 273 and the Bench opined as follows:
"Furthermore the legal parameters of judicial review have undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality.".
34. With due respect, we are unable to subscribe to that view, which is an overstatement of the English Administrative Law.WA.1571/2020 53
35. Wednesbury principle of unreasonableness as such has not been replaced by the doctrine of proportionality though that test is being applied more and more when violation of human rights is alleged. H.W.R. Wade & C.F. Forsyth in the 10th Edition of Administrative Law (2009), has omitted the passage quoted by this court in Jitender Kumar case and stated as follows:
"Notwithstanding the apparent persuasiveness of these views the coup de grace has not yet fallen on Wednesbury unreasonableness. Where a matter falls outside the ambit of 1998 Act, the doctrine is regularly relied upon by the courts. Reports of its imminent demise are perhaps exaggerated." (emphasis applied).
36. Wednesbury and Proportionality-Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to 'assess the balance or equation' struck by the decision maker. Proportionality test in some jurisdictions is also described as the "least injurious means" or "minimal impairment" test so as to safeguard fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalize or lay down a straight jacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognize the fact that the current trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a state burial, with full honours is surely not to happen in the near future.
37. Proportionality requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. Courts entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate, i.e. well balanced and harmonious, to this extent court may indulge in a merit WA.1571/2020 54 review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere.
38. Leyland and Anthony on Textbook on Administrative Law (5th edn. OUP, 2005) at p.331 has amply put as follows:
"Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results (in everyday terms, that you should not use a sledgehammer to crack a nut) and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision".
39. Courts have to develop an indefeasible and principled approach to proportionality till that is done there will always be an overlapping between the traditional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted. Proportionality as the word indicates has reference to variables or comparison, it enables the Court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decision maker."
(xii) In Union of India v. Rajasthan High Court reported in (2017) 2 SCC 599, the Hon'ble Supreme Court, at paragraph 13, while discussing the scope of judicial review, held as follows:
"13. ........The powers under Article 226 are wide - wide enough to reach out to injustice wherever it may originate. These powers have been construed liberally and have been applied expansively where human rights have been violated. But, the notion of injustice is relatable to justice under the law. Justice should not be made to depend upon the individual perception of a decision maker on where a balance or solution should lie. Judges are expected to apply standards which are objective and well defined by law and founded upon constitutional principle. When they do so, judges walk the path on a road well-travelled.
When judicial creativity leads judges to roads less travelled, in search of justice, they have yet to remain firmly rooted in law and the Constitution. The distinction between what lies within and what lies outside the power of judicial review is necessary to preserve the sanctity of judicial power. Judicial power is respected and adhered to in a system based on the rule of law precisely for its nuanced and restrained exercise. If these WA.1571/2020 55 restraints are not maintained the court as an institution would invite a justifiable criticism of encroaching upon a terrain on which it singularly lacks expertise and which is entrusted for governance to the legislative and executive arms of government. Judgments are enforced, above all, because of the belief which society and arms of governance of a democratic society hold in the sanctity of the judicial process. This sanctity is based on institutional prestige. Institutional authority is established over long years, by a steadfast commitment to a calibrated exercise of judicial power. Fear of consequences is one reason why citizens obey the law as well as judicial decisions. But there are far stronger reasons why they do so and the foundation for that must be carefully preserved. That is the rationale for the principle that judicial review is confined to cases where there is a breach of law or of the Constitution."
(xiii) In Royal Medical Trust v. Union of India reported in (2017) 16 SCC 605], the Hon'ble Apex Court, on the scope of judicial review, held as under:
"The principle of judicial review by the constitutional courts have been lucidly stated in many authorities of this Court. In Tata Cellular v. Union of India17, dealing with the concept of Judicial Review, the Court held:--
"Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment proclaimed:
'Judicial review' is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power." Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review (1992 Edn.) at p. 16 say:
"If anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the higher judiciary of recent times, and therefore to be treated as an idiosyncratic aberration, it has received the endorsement of the Law Lords generally. The words of Lord Scarman were echoed by Lord Bridge of Harwich, speaking on behalf of the Board when reversing an interventionist decision of the New Zealand Court of Appeal in Butcher v. Petrocorp Exploration Ltd. 18-3-1991." Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an WA.1571/2020 56 administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action."
(xiv) In Kerala State Beverages (M and M) Corporation Limited and Ors. v. P.P. Suresh and Ors. [(2019) 9 SCC 710], the Hon'ble Supreme Court held thus;
"26. The challenge to the order dated 07.08.2004 by which the Respondents were deprived of an opportunity of being considered for employment is on the ground of violation of Articles 14, 19 and 21 of the Constitution of India. Lord Diplock in Council of Civil Service Unions and Ors. v. Minister for the Civil Services4, held that the interference with an administrative action could be on the grounds of 'illegality', 'irrationality' and 'procedural impropriety'. He was of the opinion that 'proportionality' could be an additional ground of review in the future. Interference with an administrative decision by applying Wednesbury's principles is restricted only to decisions which are outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it."
28. In Om Kumar v. Union of India (AIR 2000 SC 3689), this Court held as follows:
"By 'proportionality', we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority 'maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve'. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not, is for the Court. That is what is meant by proportionality."
In this case, M. Jagannadha Rao, J. examined the development of principles of proportionality for review of WA.1571/2020 57 administrative decisions in England and in India. After referring to several judgments, it was held that the proportionality test is applied by the Court as a primary reviewing authority in cases where there is a violation of Articles 19 and 21. The proportionality test can also be applied by the Court in reviewing a decision where the challenge to administrative action is on the ground that it was discriminatory and therefore violative of Article 14. It was clarified that the principles of Wednesbury have to be followed when an administrative action is challenged as being arbitrary and therefore violative of Article 14 of the Constitution of India. In such a case, the Court would be doing a secondary review.
29. While exercising primary review, the Court is entitled to ask the State to justify the policy and whether there was an imminent need for restricting the fundamental rights of the claimants. In secondary review, the Court shows deference to the decision of the executive.
30. Proportionality involves 'balancing test' and 'necessity test'.[Coimbatore District Central Co-operative Bank v. Coimbatore District Central Cooperative Bank Employees Association and Anr. (2007) 4 SCC 669] Whereas the balancing test permits scrutiny of excessive and onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the necessity test requires infringement of human rights to be through the least restrictive alternatives.[Judicial Review of Administrative Action (1955) and Wade & Forsyth: Administrative Law (2005) (2007) 4 SCC 669]
31. An administrative decision can be said to be proportionate if:
(a) The objective with which a decision is made to curtail fundamental rights is important;
(b) The measures taken to achieve the objective have a rational connection with the objective; and
(c) The means that impair the rights of individuals are no more than necessary."
(xv) In Municipal Council, Neemuch v. Mahadeo Real Estate and Ors. [(2019) 10 SCC 738], the Hon'ble Supreme Court observed thus:
"13. In the present case, the learned Judges of the Division Bench have arrived at a finding that such a sanction was, in fact, granted. We will examine the correctness of the said WA.1571/2020 58 finding of fact at a subsequent stage. However, before doing that, we propose to examine the scope of the powers of the High Court of judicial review of an administrative action. Though, there are a catena of judgments of this Court on the said issue, the law laid down by this Court in the case of Tata Cellular v. Union of India reported in (1994) 6 SCC 651 lays down the basic principles which still hold the field. Paragraph 77 of the said judgment reads thus:
77. The duty of the court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law?
3. Committed a breach of the Rules of natural justice?
4. Reached a decision which no reasonable tribunal would have reached or,
5. Abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality: This means the decision-
maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury
unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not Rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, (1991) 1 AC 696, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, 'consider whether something has gone wrong of a nature and degree which requires its intervention".WA.1571/2020 59
14. It could thus be seen that the scope of judicial review of an administrative action is very limited. Unless the Court comes to a conclusion, that the decision maker has not understood the law correctly that regulates his decision- making power or when it is found that the decision of the decision maker is vitiated by irrationality and that too on the principle of "Wednesbury Unreasonableness" or unless it is found that there has been a procedural impropriety in the decision-making process, it would not be permissible for the High Court to interfere in the decision making process. It is also equally well settled, that it is not permissible for the Court to examine the validity of the decision but this Court can examine only the correctness of the decision- making process.
15. This Court recently in the case of West Bengal Central School Service Commission v. Abdul Halim [AIR 2019 SC 4504] had again an occasion to consider the scope of interference Under Article 226 in an administrative action.
"31. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.
32. The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the WA.1571/2020 60 materials on record, the same may be regarded as perverse.
33. However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect."
23. ...............................As discussed hereinabove, the High Court, while exercising its powers of judicial review of administrative action, could not have interfered with the decision unless the decision suffers from the vice of illegality, irrationality or procedural impropriety."
26. In exercise of the powers conferred by Section 7 of the Kerala Land Assignment Act, 1960 (Act 30 of 1960), and in supersession of the rules for assignment of Government lands issued notifications I and II GO.
(Press) No.1029/Rev. dated 18/10/1958 published in the Kerala Gazette Ordinary No.107, as subsequently amended, Government of Kerala made the Kerala Land Assignment Rules, 1964. Rule 11 of the said rules speaks about list of assignable land to be prepared and it reads thus:
"11. List of assignable land to be prepared.- Before granting registry, Government shall cause to be prepared lists of the lands which should be reserved for Government or public purposes in each village and lists of the lands which may be made available for assignment in each village.
(2) Lands to be reserved for Government or public purposes shall include among others, as may be found necessary;WA.1571/2020 61
(i) Porambokes as defined in the Kerala Land Conservancy Act, except those which may be assigned without detriment to Government or public interest;
(ii) Lands required for Government of public purposes, other than those covered by the definition of 'poramboke' in the Kerala Land Conservancy Act;
(iii) Lands required or likely to be required for any settlement scheme or any other scheme sponsored by the Government];
(iv) Lands likely to be required for the present or future Government or public purposes;
[xxxx]
(v) Lands on the sides of roads required for the widening of roads; lands within port limits or with in fifteen links (3.017 meters) on either side of stream; [xxxx] or within one chain (20.117 metres) of important irrigation channels without embankments or within twenty links (4.02 metres) of less important irrigation channels without embankments; or within fifteen links (3.017 metres) of irrigation channels with embankments [or within one hundred meters of the boundary of railway stations]; or within two hundred yards (183 metres) of the boundary of aerodromes and landing grounds; or land near sea coast within 100 feet (30.480 metres) of the high water mark of the sea.
Note. - Land near sea coast [within 100 feet (30.480 metres)] of the high water mark of the sea may, however, be temporarily assigned as house sites for fishermen and also for purposes of casuarina [coconut] plantations and erection of fish oil and fish guano factories beyond hundred yard (91.5 metres) from the high water mark.
(vi) Lands required for colonisation purposes;
(vii) Lands specially reserved for assignment to back-ward communities;
(viii) Lands containing or believed to contain valuable minerals, quarries etc; and
(ix) Lands acquired for Government purposes but not required for such purposes.
[(x) Lands acquired for libraries and reading rooms].WA.1571/2020 62
(3) After setting apart the lands required for future Government or public purposes, as stated in sub-rule (2), 25 per cent of the land available for assignment in each village shall be reserved for assignment to members of the Scheduled Castes and Tribes and ten per cent of such land shall be reserved for assignment to Ex-service men:
Provided that-
(i) if, in any village, the lands available for assignment under these rules are already occupied either under leases (current or time expired) or by way of encroachment and the occupants there of are entitled to assignment of lands under these rules, only the balance area, if any, that will be available after such assignment shall be reserved as aforesaid;
(iii) in the assignment of lands for house sites in sea coast villages, priority shall be given to landless fishermen in respect of lands which are situated beyond [one hundred feet] but within four furlongs from the high water mark of the sea, if the lands are not already in the occupation of other persons who are entitled to get the lands assigned under these rules;
[xxxx] (5) Lands held on leases with or without limit of time including leases, under Kuthakapattam rules, shall also be taken into consideration for purposes of registry.
(6) The lists of lands to be reserved for Government or public purposes, and the lists of land to be set apart for assignment on registry shall be submitted to the Government for approval, and action to assign such lands on registry shall be taken only after the Government approve those lists:
Provided that the Government may authorise any authority subordinate to it to scrutinise and approve such lists.
(7) The lists of lands which may be made available for lease or license shall be finally approved by the District WA.1571/2020 63 Collector without reference to the Board of Revenue or the Government.
(8) Application for assignment of land shall be made to the Tahsildar in the Form in the Appendix IV to these Rules. Each such application shall bear court fee stamp of the value of 75p:
Provided that applications for assignment of land under Clause (iii) of the proviso to sub-rule (3) of Rule 5 shall be made to the District Collector and each such application shall bear a court-fee stamp of the value of Rs. 2.
[Note. - Applicants belonging to Schedule Castes and Tribes and serving military personnel shall be exempt from affixing stamps on their applications]."
27. We have extracted the above provisions only to indicate that even if a thodu, or the banks of the thodu, are encroached upon, it is the duty of the Courts to protect the same. On this aspect, reference can be made to the following decisions:
28. It is also a fact that the Government, as well as the Local Self Government Institutions, are trustees of the properties and the trust so reposed by the people shall be discharged by the State as well as other authorities with utmost care, caution, duty, obligation and circumspection. This question was considered by the Hon'ble Supreme Court in Susetha v. State of Tamil Nadu and Others [(2006) 6 SCC 543], wherein, at paragraphs 14 and 19, held thus:
"14. Concededly, the water bodies are required to be retained. Such requirement is envisaged not only in view of WA.1571/2020 64 the fact that the right to water as also quality life is envisaged under Art.21 of the Constitution of India, but also in view of the fact that the same has been recognised in Art.47 and 48A of the Constitution of India. Art.51A of the Constitution of India furthermore makes a fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife. [See Animal and Environment Legal Defence Fund v. Union of India (AIR 1997 SC 1071), M. C. Mehta (Badkhal and Surajkund Lakes Matter) v. Union of India [(1997) 3 SCC 715] and Intellectuals Forum v. State of A.P. [(2006) 3 SCC 549]
19. The matter has also been considered in some detail by this Court in Intellectuals Forum, Tirupathi v. State of A.P. and Ors. [(2006) 3 SCC 549], wherein again while dealing with natural resources, it was opined:
"This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negative angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinise such actions of the Government, the courts must make a distinction between the Government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources."
(emphasis supplied)
28. In Intellectuals Forum, Tirupathi v. State of A.P. And Ors.
[(2006) 3 SCC 549], the Hon'ble Apex Court had considered the importance WA.1571/2020 65 of conservation of water resources, the concept of sustainable development, the duty of the Government and other authorities, to protect natural resources, and at paragraphs 67 and 68, held thus:
"67. The responsibility of the State to protect the environment is now a well accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of "State responsibility" for pollution emanating within one's own territories [Corfu Channel case (ICJ Rep 1949 (4))]. This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant clause of this declaration in the present context is para 2, which states:
"The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate."
Thus, there is no doubt about the fact that there is a responsibility bestowed upon the Government to protect and preserve the tanks, which are an important part of the environment of the area.
68. The respondents, however, have taken the plea that the actions taken by the Government were in pursuance of urgent needs of development. The debate between the developmental and economic needs and that of the environment is an enduring one, since if the environment is destroyed for any purpose without a compelling developmental cause, it will most probably run foul of the executive and judicial safeguards. However, this Court has often faced situations where the needs of environmental protection have been pitched against the demands of economic development. In response to this difficulty, policy makers and judicial bodies across the world have produced the concept of "sustainable development".WA.1571/2020 66
This concept, as defined in the 1987 report of the World Commission on Environment and Development (Brundtland Report) defines it as "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs." Returning to the Stockholm Convention, a support of such a notion can be found in para 13, which states:
"In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population."
30. The Hon'ble Apex Court in Intellectuals Forum, Tirupathi (cited supra) has also considered the Doctrine of Public Trust, with reference to the judgment of the Hon'ble Supreme Court of United States in Illinois Central Railroad Co. v. People of the State of Illinois [146 US 387 - 36 LEd 1018 (1892)], wherein it is observed that bed or soil of navigable waters is held by the people of the State in their character as sovereign in trust for public uses for which they are adapted and the State holds title to the bed of navigable waters upon a public trust, and no alienation or disposition of such property by the State which does not recognise and is not in execution of this trust, is permissible. That apart, the Hon'ble Apex Court has considered the principles of Intergenerational Equity and sustainable development in the above said decision and held that no citizen has the right to interfere with the environment so as to cause prejudice to the future generations. Paragraphs 82 to 84 of the said decision, read thus:WA.1571/2020 67
"82. Art.48A of the Constitution of India mandates that the State shall endeavour to protect and improve the environment to safeguard the forests and wildlife of the country. Art.51A of the Constitution of India, enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve national environment including forests, lakes, rivers, wildlife and to have compassion for living creatures. These two Articles are not only fundamental in the governance of the country but also it shall be the duty of the State to apply these principles in making laws and further these two articles are to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the Constitution including Articles 14, 19 and 21 of the Constitution of India and also the various laws enacted by the Parliament and the State Legislatures.
83. On the other hand, we cannot also shut our eyes that shelter is one of the basic human needs just next to food and clothing. Need for a national housing and habitat policy emerges from the growing requirements of shelter and related infrastructure. These requirements are growing in the context of rapid pace of urbanization, increasing migration from rural to urban centres in search of livelihood, mismatch between demand and supply of sites and services at affordable cost and inability of most new and poorer urban settlers to access formal land markets in urban areas due to high costs and their own lower incomes, leading to a non-sustainable situation. This policy intends to promote sustainable development of habitat in the country, with a view to ensure equitable supply of land, shelter and services at affordable prices.
84. The world has reached a level of growth in the 21 st Century as never before envisaged. While the crisis of economic growth WA.1571/2020 68 is still on, the key question which often arises and the Courts are asked to adjudicate upon is whether economic growth can supersede the concern for environmental protection and whether sustainable development which can be achieved only by way of protecting the environment and conserving the natural resources for the benefit of the humanity and future generations could be ignored in the garb of economic growth or compelling human necessity. The growth and development process are terms without any content, without an inkling as to the substance of their end results. This inevitably leaves us to the conception of growth and development which sustains from one generation to the next in order to secure "our common future". In pursuit of development, focus has to be on sustainability of development and policies towards that end have to be earnestly formulated and sincerely observed. As Prof. Weiss puts it, "conservation, however, always takes a back seat in times of economic stress." It is now an accepted social principle that all human beings have a fundamental right to a healthy environment, commensurate with their well being, coupled with a corresponding duty of ensuring that resources are conserved and preserved in such a way that present as well as the future generations are aware of them equally."
31. In National Institute of Medical Science University, Rajasthan and Ors. v. State of Rajasthan and Ors. [(2018) 13 SCC 390], a similar question of constructions made encroaching into a dam area was considered by the Hon'ble Apex Court and ordered demolition of constructions carried out, having found that, due to the unlawful constructions carried out, a lake has become dry, thus causing acute scarcity for drinking water.
WA.1571/2020 69
32. In Sarvepalli Ramaiah (Dead) As Per Legal Representatives and Others v. District Collector, Chittoor District and Others [(2019) 4 SCC 500], the Hon'ble Apex Court had occasion to consider the issue of protecting water bodies and, at paragraphs 44 & 45, held thus:
"44. The decision of the Collector was based on materials and thus not liable to be interfered with. The High Court very rightly did not interfere with the decision. It was not for the High Court, exercising its extraordinary power of judicial review, to re-analyse the evidence on record and adjudicate the disputed question of whether the Mahanth of the Mutt had at all granted Saswatha Patta to the predecessors in interest of the appellants, whether the takeed was duly executed by the Mahanth, whether the ryotwari pattas were genuine or otherwise valid or not. Nor was it for the High Court to adjudicate the disputed fact of whether the land in question was in fact a water body or the dried bed of a water body. Cultivation is often carried out on the dried bed of water bodies. That does not denude the land of its character as a water body.
45. The High Court rightly based its decision on the declaration of the entire survey area as water body and held, in effect, that the plots in question had vested in the Government free from all encumbrances under Section 2A of the 1956 Act. The respondents could not, therefore, be compelled to grant ryotwari pattas in respect of the said plots."
33. Contention of the learned Senior Counsel appearing for the appellant that the respondents should file a suit for declaration of their rights, and that no summary proceedings can be taken for eviction, cannot be WA.1571/2020 70 countenanced for the reason that, in the revenue records, subject property has been described and recorded as 'thodu'. If that be the factual position, there is no need for the authorities concerned, to seek for any declaration from the civil court.
34. Record speaks for itself. Thus, we only observe that conscious of the fact that the appellant is in possession of the Government land, has not chosen to seek for any declaration of his title, on the grounds of adverse possession. The above are only observations and will not prejudice the rights of the appellant to seek for any remedy.
Giving due consideration to the pleadings, provisions of the statutes, grounds raised, judgment impugned, and the decisions cited supra, we find no tenable grounds to hold that the judgment of the learned single Judge in W.P.(C) No.1051/2020 dated 29.06.2020 is erroneous, both on facts and law. Accordingly, we dismiss this writ appeal.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE Krj //TRUE COPY// P.A. TO CJ