The District Collector, Kollam vs K.Purushan
2021 Latest Caselaw 16609 Ker

                  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 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
                              W.A. NO. 2361 OF 2019
 AGAINST THE JUDGMENT IN WP(C) 454/2019 OF HIGH COURT OF KERALA DATED 22.1.2019


APPELLANTS/RESPONDENTS IN WPC:

     1      THE DISTRICT COLLECTOR, KOLLAM, PIN-691001.
     2      THE TAHSILDAR, KUNNATHUR TALUK OFFICE, KUNNATHUR P.O., KOLLAM,
            KOLLAM DISTRICT-690 540.
     3      THE DISTRICT SURVEY SUPERINTENDENT,
            OFFICE OF THE SURVEY SUPERINTENDENT, KOLLAM DISTRICT-690 001.
     4      THE VILLAGE OFFICER, SASTHAMCOTTA VILLAGE, SASTHAMCOTTA P.O.,
            KOLLAM DISTRICT-690 521.
     5      THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
            DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM-695 001.
            BY ADVS.SRI.RANJITH THAMPAN, ADDL. ADVOCATE GENERAL
            SHRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL
            SRI.S.RANJITH, SPL.G.P.


RESPONDENT/PETITIONER IN WP(C):

            K.PURUSHAN, AGED 52 YEARS, S/O.LATE KRISHNAN, PUSHPALAYAM,
            MANAKKARA, SASTHAMCOTTA, KOLLAM DISTRICT-690521.

            BY ADVS. SRI.M.V.THAMBAN
            SRI.R.REJI
            SMT.THARA THAMBAN
            SRI.B.BIPIN
            SRI.ARUN BOSE


      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.2361 of 2019
                                       :: 2 ::




                                   JUDGMENT

Dated this the 11th day of August, 2021

S.MANIKUMAR, C.J.

Appellants herein are the respondents 1 to 5 and the respondent

herein is the petitioner in W.P.(C) No.454/2019. Writ appeal is filed being

aggrieved by the judgment dated 22.01.2019 in W.P.(C) No.454/2019, by

which, the writ court declared that the writ petitioner is entitled for an

alternate assignment of land, since the land assigned is a waterlogged one.

2. Short facts leading to the filing of the writ appeal are that a total

extent of 119.36 acres of land, which is a Kayalpuramboke (Backwater

Government Land) known as 'Cheloor Kayal Puramboke' was assigned in

the year 1984 - 1985, by the Government of Kerala, to about 286 persons for

the purpose of starting paddy cultivation. It has brought to the notice of

the court that since the entire Kayal Puramboke is a waterlogged area, for

the purpose of paddy cultivation, water has to be pumped out throughout

the day, for making the land fit for paddy cultivation. The cultivation is

only for one crop area and such cultivation is being made, by pumping out

water from the entire area, so that the paddy cultivation can be conducted

after erecting necessary bunds. It is for this purpose that the aforesaid W.A.No.2361 of 2019 :: 3 ::

119.36 acres of land was assigned to several persons for paddy cultivation.

It is evident from Exhibit-P1 that an extent of 25 cents of land in Survey

No.32 was assigned to the respondent/writ petitioner in 1985, as

Assignment Patta No. 41/82 - 85.

3. Writ petition was filed by the respondent/writ petitioner seeking

for a direction to provide an alternate assignment of land in lieu of the

property covered by Exhibit-P1 Patta. Adverting to the pleadings,

submissions and material on record, by impugned judgment, writ court

found that the respondent/writ petitioner is entitled for alternate

assignment of land, since the property covered by Exhibit-P1 Patta is a

waterlogged one. Impugned judgment reads as under:

"7. Having regard to the facts and circumstances disclosed in this petition, this Court is of the considered view that directions already issued by this Court as per Ext.P-10 order and Ext.P-12 judgment should be effectuated. It is now clear like the day light that it is rather impossible to even survey and measure the property in view of the various problems associated with the said land. The petitioner has stated that he had done his level best to take care of the property and in view of the peculiar nature of the land, no productive activity could be carried out in the said property. In the light of these aspects, this Court is of the view that the petitioner cannot be blamed for the present state of affairs. The respondents should have been more careful at the W.A.No.2361 of 2019 :: 4 ::

time of the initial assignment of land in the year 1985. Ordinarily, the consistent practice is that even prior to the issuance of formal patta, survey and measurement of the property is carried out by the revenue and survey officials and even a survey sketch is attached to the patta. If such measures had been adhered to, then the respondents would then have been convinced that the land is unsuitable for any kind of productive utility. Any person, who is offered by assignment, at that point of time, would not be raising any objections regarding the nature of the land and due to dire necessity, he would have accepted the assignment process. Therefore, the respondents should have made necessary enquiries to ascertain whether the land is productive and fit for assignment. From the facts and circumstances disclosed in this case, it cannot be said that the petitioner should be blamed for the present situation. The consistent requests made by the petitioner before the respondent authorities even to conduct survey and measurement of the property could not be even carried out by them which really shows that the land is highly unfit for any purpose due to the abovesaid aspects. The petitioner belongs to Scheduled Caste community and he is now aged 52 years.

8. Accordingly, this Court is of the considered view that the respondents are obliged in the facts and circumstances of this case to assign and allot alternate land to the petitioner in lieu of the grant of land assignment made to him as per Ext.P-1 patta.

However, the same extent of property which comes to about 25 cents/10.12 ares need not be assigned as alternate land to the petitioner. The 1st respondent-District Collector and the 2nd respondent-Tahsildar will take necessary steps and ensure that W.A.No.2361 of 2019 :: 5 ::

atleast 10-15 cents is to be assigned and allotted to the petitioner in lieu of the grant of patta as per Ext.P-1. As far as possible, that land may be within the territorial limits of Kunnathur Taluk. However, it is ordered and declared that the petitioner is entitled for assignment of such alternate land and the discretion is given to respondents 1 & 2 to decide about the actual extent of land which may be in the range of 10-15 cents depending upon the availability of land and as far as possible within Kunnathur Taluk. The petitioner will immediately file a representation along with an application for assignment of such land before the 2 nd respondent with copy to the 1st respondent. The 2 nd respondent will conduct an enquiry to ascertain whether any lands are specifically meant and set apart for persons belonging to SC/ST persons, etc., are available for assignment. The 1 st respondent should also invite the petitioner for a personal hearing and a copy of the report of the 2nd respondent-Tahsildar on the enquiry as directed hereinabove, should be given to the petitioner in advance. The petitioner's contention should also be duly considered. Thereafter, respondents 1 & 2 will ensure that assignment of alternate land to the extent of 10- 15 cents is made in favour of the petitioner. This will be subject to the condition that the petitioner will have to surrender the land covered by Ext.P-1 patta. The entire process in this regard should be duly completed by respondents 1 & 2 without much delay, preferably within a period of 4-5 months from the date of receipt of a certified copy of this judgment.

With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of." W.A.No.2361 of 2019 :: 6 ::

4. Mr. S. Ranjith, learned Special Government Pleader appearing on

behalf of the appellants, submitted that after obtaining Exhibit P1 Patta,

the writ petitioner and other persons, who were granted assignment under

the Kerala Land Assignment Rules, 1964, had not only cultivated the land

with Paddy, but has illegally mined clay from the aforesaid paddy land.

According to the learned Special Government Pleader, as the writ

petitioner/respondent herein had not conducted any 'Paddy Cultivation' in

the land, Exhibit -P1 Assignment Certificate is liable to be cancelled under

Rule 8(2) read with Condition No.2 of the Kerala Land Assignment Order.

5. It is further contended that, before the writ court, under the

Kerala High Court Rules, the appellants/respondents were entitled to file a

counter affidavit with all the documents, within three months from the

date of receipt of copy of the notice as per Rule 153. But, without waiting

for a full fledged counter affidavit, the learned Single Judge has passed the

impugned judgment, directing to provide alternate land to the petitioner.

Hence, this writ appeal.

6. Heard learned counsel for the parties and perused the materials

available on record.

7. Land has been assigned for cultivation in the year 1984-85. W.A.No.2361 of 2019 :: 7 ::

Though the appellants have submitted that they are entitled to file a

counter affidavit, material on record shows that, before the writ court,

appellants have filed a statement on behalf of the Tahsildar, Kunnathur

Taluk, Kollam District, which shows that 10.12 Ares of land in old Survey

No.32/1-1(Re-Sy. No.15 & Block No.168/1) in Sasthamcotta Village assigned

to the writ petitioner in 1984-85 as per LAC No.41/84-85 was in the

category of 'Puncha', which is also classified as 'wetland'. The above land

was an agricultural land at the time of assignment in 1984-85. The writ

petitioner neither made any attempt to protect the same as an agricultural

land nor took any precaution to prevent the illegal mining on that land.

Accordingly, the assigned land became a waterlogged area and could not

conduct any survey on that land.

8. The statement further shows that there was no restriction in the

extent of the land to be assigned during that period, in which the writ

petitioner had been assigned the land in question. But, due to the acute

scarcity of assignable land, now, many restrictions are imposed in the

extent of the land to be assigned. The zero Landless Programme aiming

distribution of 1.21 Ares of land to each landless family stands half way,

without attaining its aim, due to the only reason of the unavailability of W.A.No.2361 of 2019 :: 8 ::

sufficient assignable land. Now, approximately 1440 applications are

pending in this office under this programme, for want of land. Besides it,

many Government lands are lying idle connected with civil cases over the

title of ownership issues. The claimed property is very adjacent to the

Sasthamcotta fresh water lake and is exempted from being assigned, due to

the environmental problems. Considering the said circumstances, it is

submitted that no land equal to the extent of 10.12 Ares in Exhibit-P1 patta

is available in Kunnathur Taluk for assignment purpose.

9. Before the writ court, contention of the appellants was that the

writ petitioner had not taken any attempt to protect the land as an

agricultural land, nor taken any precaution to prevent any illegal mining

on that land.

10. Now, quite contrary to the statement, for the first time before

the appellate court, contentions are raised that the respondent and

similarly placed persons, who were assigned lands, did not only cultivate

the lands, but also illegally mined. It is trite law that new facts cannot be

permitted to be raised at the appellate stage.

11. It is evident from the impugned judgment that the writ court has

found that the writ petitioner/respondent herein cannot be blamed for the W.A.No.2361 of 2019 :: 9 ::

present state of affairs as he had done his level best to take care of the

property, but, due to the peculiar nature of the land, no productive activity

could be carried out in the said property. The consistent requests made by

the writ petitioner before the authorities even to conduct survey and

measurement of the property could not be done, which really shows that

the land is unfit for any purpose due to the abovesaid aspects. The writ

petitioner belongs to Scheduled Caste community and he is now aged 52

years. The appellants should have made necessary enquiries to ascertain,

as to whether the land is productive and fit for assignment. Writ petitioner

cannot be made to suffer on account of the fault of the appellants.

In the light of the above, we find no illegality or irregularity in the

impugned judgment. Writ appeal fails and it is dismissed.

sd/-

S.MANIKUMAR CHIEF JUSTICE

sd/-

SHAJI P. CHALY JUDGE jes W.A.No.2361 of 2019 :: 10 ::

APPENDIX

PETITIONER'S ANNEXURE:

ANNEXURE A1 THE TRUE COPY OF THE APPENDIX-1 OF THE KERALA LAND ASSIGNMENT RULES, 1964.

ANNEXURE A2 TRUE COPY OF THE NEWSPAPER REPORT PUBLISHED IN MALAYALA MANORAMA DAILY ON 17.06.2007.

ANNEXURE A3 TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, SASTHAMCOTTA DATED 12.09.2007.

ANNEXURE A4 TRUE COPY OF THE JUDGMENT DATED 05.06.2014 IN WP(C) NO.14258/2014.

ANNEXURE A5 TRUE COPY OF THE LETTER ISSUED BY THE VILLAGE OFFICER, SASTHAMCOTTA TO THE SUB INSPECTOR OF POLICE, SASTHAMCOTTA ON 17.11.2007.

ANNEXURE A6 PHOTOGRAPH SHOWING THE PRESENT STAGE OF THE LAND IN QUESTION.

ANNEXURE A7      TRUE COPY OF THE MAHAZAR.




                                                      // TRUE COPY //

                                                                     P.S. TO JUDGE