Kerala High Court
Ponnachan K.V vs The State Of Kerala on 13 December, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 13TH DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943
WA NO. 1625 OF 2021
AGAINST THE JUDGMENT IN WP(C) 9208/2021 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
PONNACHAN K.V
AGED 53 YEARS
S/O.LATE VIJAYANANDAN, SAKHA SECRETARY, PRATHIYAKSHA
RAKSHA DAIVA SABHA (PRDS)-KUMARAKOM SAKHA, CHEEPUNKAL
POST, VARAMBINAKOM, KOTTAYAM DISTRICT-686 563. HAVING THE
RESIDENCE, PATHILCHIRA HOUSE, KUMARAKOM POST, KOTTAYAM
DISTRICT-686 563, NOW RESIDING AT CN-3 (QUARTERS),
TRAVANCORE CEMENTS, NATTAKOM, KOTTAYAM DISTRICT-680 566.
BY ADVS.
SAJAN VARGHEESE K.
LIJU. M.P
RESPONDENTS/RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF
REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695
001.
2 THE LAND REVENUE COMMISSIONER
LAND REVENUE COMMISSIONERATE, LAND REVENUE COMPLEX,
PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM-695
033.
3 THE DISTRICT COLLECTOR
CIVIL STATION, KOTTAYAM-686 002.
4 THE REVENUE DIVISIONAL OFFICER
MINI CIVIL STATION, KOTTAYAM-686 001.
W.A.No.1625 of 2021 2
5 THE TAHSILDAR
MINI CIVIL STATION, KOTTAYAM-686 001.
6 THE VILLAGE OFFICER
AYAMANAM VILLAGE, AYAMANAM POST, KOTTAYAM DISTRICT-686
015.
7 ANILKUMAR V.R.
S/O. RAJENDRAN, VAZHATHOPPIL HOUSE, CHEEPUNKAL POST,
KUMARAKOM NORTH, KOTTAYAM DISTRICT-686 563.
8 AIMANAM GRAMA PANCHAYAT
AIMANAM GRAMA PANCHAYAT OFFICE, AIMANAM PO, KOTTAYAM 686
015, REPRESENTED BY ITS SECRETARY.
9 THE SECRETARY
AIMANAM GRAMA PANCHAYAT, AIMANAM GRAMA PANCHAYAT OFFICE,
AIMANAM PO, KOTTAYAM-686 015.
BY ADVS.
SRI.V.TEK CHAND, SENIOR GOVERNMENT PLEADER FOR R1 TO R6
SHRI.M.P.JOSEPH TIJO FOR R7
SRI.SURIN GEORGE IPE FOR R8 & R9
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
13.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.1625 of 2021 3
JUDGMENT
SHAJI P.CHALY,J.
This appeal is preferred by the petitioner in W.P.(C) No.9208/2021 dated
24.11.2021, whereby the reliefs sought for by the petitioner to quash Exhibit P5
report submitted by the Revenue Divisional Officer, Kottayam dated 2.2.2019 in
regard to the encroachment of property and poramboke by the appellant was
declined, apart from declining the relief sought for by the appellant to process Exhibit
P1 application in the backdrop of Exhibit P4 order issued by the Revenue Department
of the State Government dated 27.1.2020 bearing No.G.O.(Rt.) No.40/2020/Revenue
in regard to the assignments of land possessed by religious places, cemeteries,
cultural and arts organisations, libraries etc. Brief material facts for the disposal of
the writ appeal are as follows;
2. Appellant is the Secretary of a branch of Kumarakom Sakha of Prathiya
Raksha Daiva Sabha (PRDS), a religious denomination. The case of the appellant is
that the 'Aradhana Mandiram' (prayer hall) may be situated in a Panchayat
poramboke land but according to the appellant, the mandiram has been there for the
last so many decades, as borne out from Exhibit P5 report submitted by the Revenue
Divisional Officer dated 2.2.2019. Therefore, according to the appellant, the said
religious denomination is entitled to have the benefit of Exhibit P4 Government Order
dated 27.1.2020 and it is entitled to get the property where the Aradana Mandiram is
situated, assigned in favour of the beneficiaries. In the above backdrop, Exhibit P1
application was submitted and the writ petition was filed seeking direction to dispose
of the said application by the authorities. However, the learned Single Judge held
that if Exhibit P4 Government Order is worked out and Exhibit P1 application is
considered, it will adversely affect the larger interest of the public.
3. The paramount contention advanced by the appellant is that so far Exhibit P4
being the policy of the Government and it is not contrary to any statute, rules,
Constitution of India and any other provisions of law, the stand taken by the learned
Single Judge, cannot be sustained in law. The learned Single Judge, in fact, has
dismissed the writ petition, basically holding that in the Basic Tax Register of the
Village/Taluk, the tenure of the property in question is shown as "Kavanar
Poramboke". That apart, referring to Exhibits R5(b) and R5(c) report and sketch
prepared by the Taluk Surveyor, it was found by the learned Single Judge that an
extent of 0.033 hectares of land have been encroached by the religious
denomination in question, which is not a legalistic approach made to the issue. The
learned Single Judge has also taken into account the order of the Hon'ble Apex Court
in SLP(C) No.8519 of 2006 and connected cases dated 31.1.2018, whereby
directions were issued to remove all encroachments by the religious body on public
land.
4. The Apex Court has further held that no unauthorised construction can be
carried out or permitted by the temples, churches, mosques etc. in public places and
it was further ordered that, if unauthorised construction has already taken place, the
Government can on case to case basis review and take appropriate steps. It was
further found by the learned Single Judge that the Government's power to assign
poramboke or Government land is traceable to the Kerala Land Assignment Act, 1960
and the Rules made thereunder; that the land belonging to the State is held by the
Government as a public trustee and the Government cannot assign or allow
occupation of Government land except in accordance with the statutory provisions
under the Kerala Land Assignment Act, 1960 and the Rules thereto. Learned Single
Judge has also taken into account various provisions of the Land Assignment Act,
1960 and the Rules thereto and held that the Government would have to strictly
follow the procedures prescribed for assignment of land under law. Learned Single
Judge has also taken note of the fact that the organisation in question is admittedly
an encroacher of a river poramboke, and a learned Single Judge of this Court in the
Judgement in O.P.(C) No.16077/1996 dated 13.1.1997 directed the Government to
remove encroachment from kayal poramboke in and around Ernakulam; that a kayal
puramboke or thodu poramboke cannot be assigned inasmuch as it is required to
protect the river and kayal itself.
5. It is also found that the encroachment made by the organisation has
deprived the neighbouring people from having access to the thodu to fetch water
and it was in the said background, the learned Single Judge has directed the Police
to grant Police protection to the petitioner in the connected writ petition W.P.(C)
No.20325/2019 to fetch water from the water body situated by the side of the
property encroached.
6. The paramount contention advanced by the appellant in the appeal is that
learned Single Judge exceeded his jurisdiction and did not follow the mandates of
Exhibit P4 Government Order and since Exhibit P4 is a policy of the Government, it is
to be followed scrupulously by the Government. That apart, it is contended that the
order of the Apex Court in regard to the encroachment into public properties by
religious organisations, the Government is vested with powers to make its own
policies deviating from the judicial pronouncements; that the property in question is
a Panchayat poramboke land and therefore, the Kerala Land Assignment Rules are
not applicable to such properties. It is also contended that it is clear from the recitals
contained in Exhibit P5 report of the Revenue Divisional Officer that the prayer hall is
situated in the property in question for the last several decades and therefore, the
appellant is entitled to get assignment by considering Exhibit P1 application.
7. We have heard learned counsel for appellant Sri. Sajan Varghese, learned
Senior Government Pleader Sri.Tek Chand, Sri.Surin George Ipe for the Panchayat
and the counsel for the party respondent viz., Anilkumar.V.R.(7 th respondent) and
perused the pleadings and materials on record.
8. The sole question to be considered is whether any manner of interference is
warranted to the judgement of the learned Single Judge?. In fact when the writ
appeal came up for admission, in order to ascertain the nature of entry in the Basic
Tax Register in regard to the property in question as "Kavanar Poramboke", we
directed the learned Senior Government Pleader to explain the nature of tenure
entered in the Basic Tax Register through the Village officer concerned. Accordingly,
when the matter was taken up today, learned Senior Government Pleader has
produced a report of the Village Officer concerned dated 7.11.2021, from where we
are satisfied that the disputed property is a river poramboke. It was taking into
account the said nature of the property that the learned Single Judge has held that
the property is not assignable and therefore, no direction can be issued to the
statutory authority to consider Exhibit P1 application submitted by the appellant for
assignment. Moreover it is significant to note that by virtue of Section 2(1) of the
Kerala Government Land Assignment Act 1960, the assignment of land can be
granted 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 .
The said provision assumes more relevance since the learned Single Judge has found
that if the land in question is assigned in favour of the appellant it would affect the
rights of the 7th respondent and it was after finding so only police protection was
directed to be granted to the said respondent if situation warrants . It is also relevant
and important to note that rule 7(1) of the Kerala Land Assignment Rules, 1964
dealing with priority to be observed in assignment, takes care of a situation where
assignment need be granted to any encroachment prior to 1st day of August 1971,
only if it is unobjectionable. Therefore even assuming that the appellant was in
possession of the property in question for decades as is contented , that will not
confer any absolute right on the appellant to get the land assigned in his favour .
9. The appellant has produced along with the appeal memorandum, the order
of the Apex Court in Union of India v. State of Gujarat dated 31.1.2018, wherein
the Apex Court considered the question with respect to the encroachments made by
religious institutions on public streets, public parks or other public places, and in
respect of the unauthorised construction of religious nature, which has already taken
place, the State Governments and the Union Territories were directed to review the
same on case to case basis and take appropriate steps, as expeditiously as possible.
10. Having considered the findings and observations made by the learned Single
Judge, we are of the clear opinion that the learned Single Judge has taken into
account the pros and cons of the subject issue and has rendered the judgement
taking into account the provisions of the statutes and law involved in the subject
matter. In an intra court appeal, this Court needs to look into only whether there is
any jurisdictional error or other legal infirmities in the judgement of the learned
Single Judge, liable to be interfered with. However we could not locate any such
legal infirmities justifying our interference Therefore there is no force in the
contentions advanced by the appellant .
11. Having analysed the situations, we are of the considered opinion that the
appellant has not made out any case for interference in an intra court appeal filed
under section 5 of the Kerala High Court Act, 1958.
Needless to say, writ appeal fails, accordingly it is dismissed.
Sd/-
S.MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P.CHALY
smv JUDGE
APPENDIX
PETITIONER'S ANNEXURES
ANNEXURE A : TRUE COPY OF THE ORDER DATED 31.1.2018 PASSED IN SLP(C)
NO.8519/2006 ON THE FILE OF THE HONOURABLE SUPREME COURT OF INDIA
ANNEXURE B: TRUE COPY OF THE JUDGMENT DATED 13.01.19978 PASSED IN OP
NO.16077/1996 ON THE FILE OF THIS HONOURABLE COURT.
