Sunil Kumar K.S vs State Of Kerala
2021 Latest Caselaw 16852 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
              THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
     THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
                           WP(C) NO. 2537 OF 2015
PETITIONER:

              SUNIL KUMAR K.S.,
              AGED 37 YEARS
              S/O. K.S. SADANANDAN, RESIDING AT KOCHERUKKEN VELY,
              AVALOOKUNNU P.O., KALATH, ALAPPUZHA -688006.

              BY ADVS.
                  SRI.HARISH GOPINATH
                  SRI.SANIL KUNJACHAN


RESPONDENTS:

     1        STATE OF KERALA,
              REPRESENTED BY REVENUE SECRETARY, GOVERNMENT SECRETARIAT,
              THIRUVANANTHAPURAM-695001.

     2        DISTRICT COLLECTOR,
              DISTRICT COLLECTOR'S OFFICE, ALAPPUZHA-688001.

     3        TAHSILDAR,
              THALUK OFFICE, AMBALAPUZHA, ALAPPUZHA-688001.

     4        VILLAGE OFFICER,
              VILLAGE OFFICE, ARYANADU SOUTH VILLAGE, AMBALAPUZHA,
              ALAPPUZHA -688001.

              G.P-SRI.RAJIV JYOTHISH GEORGE


     THIS     WRIT   PETITION   (CIVIL)   HAVING   BEEN   FINALLY   HEARD   ON
12.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) 2537/2015                       2


                                                           "C.R"

                                   JUDGMENT

The petitioner states that his father was the owner of 30

cents of property in Block No.109, Re Survey No.6 of Aryanadu

South Village. The petitioner's father had assigned 7.50 Ares of

the said property to the petitioner and the remaining 3.43 Ares

to the petitioner's brother Sreekumar. The mutation of the said

properties has been effected and they are paying tax and are in

possession of the said properties. Apart from the said land (the

registered holding),the petitioner's father was also in

possession of 4.55 Ares of land in Block No.110 in Sy. No.122/10

of the said Village and the said land is lying adjacent to the

registered holdings of the petitioner and his brother and the

only access to the registered holdings of the petitioner and his

brother is through this property. It is stated that the

petitioner's father had obtained Kuthakappattom of the

aforesaid 4.55 Ares of land in 1965 as per K.P. 28/65 for the

beneficial enjoyment of the registered holding lying adjacent

and the petitioner's father was paying the lease rent for this

property without default.

2. While so, it is stated that the petitioner's father passed

away on 9.12.2014 and during this period, the third respondent

Tahsildar issued Ext.P8 notice dated 15.11.2014 addressed to

the petitioner's father demanding an amount of Rs.83,145/-

towards arrears of lease rent and informing that if the amount

is not remitted the same would be recovered by initiating

revenue recovery proceedings and the lease would be cancelled.

3. According to the petitioner, while the petitioner's father

was alive, he had made an application under Rule 6(2) of the

Kerala Land Assignment Rules, 1964 (for brevity, 'the Rules') for

assignment of the aforesaid 4.55 Ares of land in Block No.110 in

Sy.No.122/10 of Aryanadu South Village for the beneficial use of

the registered holding referred to above. However, the said

application for assignment of land was rejected by the District

Collector as per order No. C7/25078/11/K.Dis dated 28.11.2011

and the same was communicated to the petitioner's father by

Ext.P11 letter of the Tahsildar. In Ext.P11, it is stated that the

application submitted by the petitioner's parents for assignment

of 4.55 Ares of land for the beneficial enjoyment of the

registered holding was under consideration, but, had to be

rejected by the District Collector in the light of G.O.(MS)

280/2011/RD dated 27.07.2011 (Ext. P12) which provides that

assignment of land on patta (registry) will be only to landless.

The petitioner states that he came to know about the rejection

of the application submitted by the petitioner's father under

Rule 6(2) of the Rules after the death of his father. It is

challenging Ext.P11 communication of the Tahsildar, intimating

the rejection of the application of the petitioner's parents made

under Rule 6(2) by the District Collector, on the basis of Ext.

P12 Government Order, the petitioner has approached this

Court.

4. According to the petitioner, the application under Rule

6(2) of the Rules cannot be rejected on the basis of Ext.P12

Government Order, since, the application under Rule 6(2) is

filed for the assignment of government land for the beneficial

enjoyment of the adjoining registered holding. Therefore, only

a person who is having a registered holding can apply for

assignment of government land under Rule 6(2) for the

beneficial enjoyment of that registered holding and the rejection

of the application on the ground that the petitioner is not

landless is not sustainable. There is no challenge to Ext. P12

Government Order. The case of the petitioner is that Ext. P12

Government Order is not applicable in cases of assignment of

land for beneficial enjoyment of adjoining registered holding

under Rule 6(2) of the Rules.

5. A counter affidavit has been filed by the third

respondent, the Tahsildar, wherein it is stated that the 4.55 Ares

of land in Block No.110 in Sy. No.122/10 of Aryanadu South

Village was granted as lease to petitioner's father under the

Kuthakappattom Rules,1947 in 1965 as per K.P. 28/65 subject to

conditions and the lease was later renewed, but the lease rent

fell in arrears. The application of the petitioner's parents for

assignment of land was rejected by the District Collector based

on Ext. P12 Government Order. It is stated that, only those who

are landless are eligible for assignment of patta. It is further

stated that even though the petitioner is not eligible for patta,

he can continue the existing lease by remitting the arrears of

lease rent. Since the petitioner can continue possession of the

Government land by paying lease to Government, the petitioner

has no reason to be aggrieved by Ext. P12 Government Order. It

is also stated that the petitioner has the right of appeal to the

Land Revenue Commissioner and the same was not utilized by

him.

6. Heard Sri. Harish Gopinath, the learned counsel for the

petitioner and Sri Rajiv Jyothish George, the learned

Government Pleader for the respondents.

7. This writ petition has been pending from 2015 and the

third respondent has filed counter affidavit and has joined issue

in the writ petition. Therefore, at this distance of time, and in

the nature of the direction I propose to issue, this Court is not

relegating the petitioner to avail the right to appeal under the

statute.

8. The Kerala Government Land Assignment Act, 1960

(hereinafter referred to as the 'Act' for brevity) is enacted to

regulate the assignment of Government lands. Section 3 of the

Act provides that Government land may be assigned by the

Government or by any prescribed authority either absolutely or

subject to such restrictions, limitations and conditions as may

be prescribed. Section 4 provides that, when any Government

land is proposed to be assigned by the prescribed authority, the

Tahsildar of the Taluk concerned or any officer empowered in

that behalf shall notify that such land will be assigned. The

Government in exercise of the powers conferred by Section 7 of

the Act has made the Kerala Land Assignment Rules, 1964. Rule

2 (c) defines 'assignment' to mean transfer of land by way of

registry and includes a lease and a grant of licence for the use

of the land. Rule 2(CD) defines "beneficial enjoyment" to mean

the enjoyment of land for purposes like providing approach road

to the assignee's registered holding and protection of his

watercourse, standing crops and buildings. Rule 4 deals with

the purposes for which land may be assigned and provides that

the Government lands may be assigned on registry for purposes

of personal cultivation, house-sites and beneficial enjoyment of

adjourning registered holdings.

9. Rule 6 (1) and (2) of the Rules deals with assignment of

Government land for beneficial enjoyment of adjoining

registered holding and the extent of Government land that may

be assigned and it reads as follows:-

"6: Assignment for house site and for

beneficial enjoyment.-- (1) The extent of Government

land that shall be registered in favour of a family as

house site shall not exceed [fifteen cents (6.072) ares)].

The assignee shall be liable to pay land value for house

sites at the rate of [Rs.200 per cent].

(2) The extent of Government land that may be granted

on registry when the same is indispensably required for

the beneficial enjoyment of adjoining registered holdings

[shall not exceed, in the case of one registered holding

[fifteen cents (6.072 ares)].

Note.-(1) The authority competent to assign land for

beneficial enjoyment shall be the Revenue Divisional

Officer. He may pass order of assignment in such cases

only after personally satisfying himself that the land is

absolutely necessary for that purpose.

(3) An assignment under sub-rule (2) shall be subject to

the payment of market value of the land at the time of

assignment and survey and demarcation charges at the

rates specified in sub-rule (4) of rule 10 excluding the

value of improvements, if any, made by the occupants on

the land."

According to the petitioner, the Government land having

an extent of 4.55 Ares lying adjacent to his registered holding is

the only access to the said registered holding and therefore,

assignment of the said Government land is indispensably

required for the beneficial enjoyment of his adjoining registered

holding. The application under Rule 6(2) of the Rules has been

rejected citing Ext.P12 Government Order for the reason that

the applicant is not landless. By Ext.P12, as it reads, the

Government, 'in order to ensure that there is a uniform,

transparent and rational policy for the use and assignment of

public lands to curb the tendency to get lands assigned to the

ineligible and to ensure that public lands are assigned for public

use', issued certain guidelines and the first clause therein

provides that, "Land assignment on patta (registry) will be only

to the landless and for self-housing". A perusal of the said

Government Order would show that it deals with assignment of

Government lands for personal housing, institutional and

commercial purposes. It does not deal with assignment of

Government lands for the beneficial enjoyment of adjoining

registered holding. An assignment of the government land

under Rule 6(2) of the Rules is granted when the government

land is indispensably required for the beneficial enjoyment of

adjoining registered holding. Therefore, a person who is

having a registered holding and who requires the adjoining

government land for the beneficial enjoyment of his registered

holding can be granted assignment of government land under

Rule 6(2), subject to satisfying the other conditions required for

assignment. It would be incongruous to say that the assignment

of land on patta (registry) for the beneficial enjoyment of

adjoining 'registered holding' will be only to 'landless'. That

would set at naught Rule 6(2) which provides for assignment of

government land for the beneficial enjoyment of adjoining

registered holding. Obviously, that is not intended in Ext. P12

Government Order, as it does not deal with assignment of

Government lands for the beneficial enjoyment of adjoining

registered holding. Therefore, the rejection of the application

under Rule 6(2) of the Rules by the District Collector as per

order No. C7/25078/11/K.Dis dated 28.11.2011 relying on

Ext.P12 Government order cannot be sustained. Ext.P11 is,

therefore, set aside. The second respondent is directed to

consider the application under Rule 6(2) afresh within a period

of three months from the date of receipt of copy of this

judgment after hearing the petitioner and any other persons

whom the second respondent deems appropriate. Writ petition

is disposed of with the above direction. No order as to costs.

Sd/-

MURALI PURUSHOTHAMAN JUDGE

spc/

APPENDIX OF WP(C) 2537/2015

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF TAX RECEIPT OF DATED 22/07/2014.

EXHIBIT P2 TRUE COPY OF TAX RECEIPT DATED 04/04/2014.

EXHIBIT P3 TRUE COPY OF RECEIPT DATED 27/01/2005.

EXHIBIT P4 TRUE COPY OF RECEIPT DATED 15/02/2005.

EXHIBIT P5 TRUE COPY OF RECEIPT DATED 13/03/2007.

EXHIBIT P6 TRUE COPY OF RECEIPT DATED 22/09/2010.

EXHIBIT P7 TRUE COPY OF RECEIPT DATED 18/10/2014.

EXHIBIT P8 TRUE COPY OF NOTICE DATED 15/11/2014.

EXHIBIT P9 TRUE COPY OF LETTER DATED 29/06/2006.

EXHIBIT P10 TRUE COPY OF LETTER DATED 17/11/2008.

EXHIBIT P11 TRUE COPY OF LETTER DATED 29/12/2011.

EXHIBIT P12 TRUE COPY OF GO(MS) NO.280/2011/RD DATED 27/07/2011.