William John vs The Tahsildar
2021 Latest Caselaw 4455 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

     MONDAY, THE 08TH DAY OF FEBRUARY 2021 / 19TH MAGHA,1942

                       W.P.(C) No.415 OF 2021(B)


PETITIONER/S:

                WILLIAM JOHN
                AGED 67 YEARS
                S/O.JOHN BRITO @ JOHN ANTONY, THIRUTHIL VEEDU, WARD
                NO.6, HOUSE NO.484, MUKKAD, KAVANAD, SAKTHIKULANGARA
                VILLAGE, MEENATHU CHERRY, KOLLAM, PIN - 691 581.

                BY ADVS.
                SRI.T.R.RAJAN
                SRI.R.JOHNSON

RESPONDENT/S:

      1         THE TAHSILDAR, TALUK KACHERY
                KOLLAM, PIN - 691 001.

      2         VARGHESE JOHN
                AGED 52 YEARS, S/O.JOHN BRITO @ JOHN ANTONY,
                THURUTHIL BUNGLOW, MUKKAD, KAVANADU, SAKTHIKULANGARA
                VILLAGE, MEENATHU CHERRY, KOLLAM, PIN - 691 581.

      3         ANTONY JOHN
                AGED 57 YEARS
                S/O.JOHN BRITO @ JOHN ANTONY, THURUTHIL BUNGLOW,
                MUKKAD, KAVANADU, SAKTHIKULANGARA VILLAGE, MEENATHU
                CHERRY, KOLLAM, PIN - 691 581.


OTHER PRESENT:

                SMT K.AMMINIKUTTY -SR GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.415 OF 2021(B)

                                   2

                             JUDGMENT

The petitioner, who is stated to be in possession of 5.5 cents

of property comprised in Survey No.57/2 of Shakthikulangara

Village in Kollam District, has filed this writ petition under Article

226 of the Constitution of India seeking a writ of mandamus

commanding the 1st respondent to assign 5.5 cents of property

comprised in Survey No.57/2 of Shakthikulangara Village, Kollam

District, which is the subject matter of Ext.P1 application for

assignment dated 02.02.2019, within a time limit to be fixed by

this Court. The petitioner has also sought for writ of mandamus

commanding the 1st respondent to take appropriate action upon

Ext.P1 application for assignment dated 02.02.2019, within a time

limit to be fixed by this Hon'ble Court and after affording an

opportunity of being heard to the petitioner. Respondents 2 and 3

in this writ petition are the brothers of the petitioner.

2. On 07.01.2021, when this writ petition came up for

admission, the learned Government Pleader was directed to get

instructions as to whether Ext.P1 application made by the

petitioner is still pending consideration.

3. Heard the learned counsel for the petitioner and also

the learned Senior Government Pleader appearing for the 1 st W.P.(C) No.415 OF 2021(B)

respondent Tahsildar, Kollam. Considering the nature of relief

proposed to be granted service of notice on respondents 1 and 2 is

dispenced with.

4. The Kerala Land Assignment Act, 1960 is enacted to

provide for the assignment of Government land. Section 3 of the

Act deals with assignment of Government land and Section 4 deals

with the procedure to be followed before Government lands are

assigned. Section 5 deals with order of assignment.

5. In exercise of the powers under Section 7 of the Kerala

Land Assignment Act and in supersession of Rules for assignment

of Government lands, issued under notifications I and II

G.O(P).No.1029/Rev. dated 18.10.1958 published in the Kerala

Gazette Extra Ordinary No.107, the Government of Kerala made

the Kerala Land Assignment Rules, 1964 for assignment of

Government lands. As per Rule 4, which deals with purposes for

which land may be assigned, the Government lands may be

assigned on registry for the purpose of personal cultivation, house

sites and beneficial enjoyment of adjourning registered holdings.

6. Rule 5 of the Rules deals with maximum limits to be

assigned for cultivation; Rule 6 deals with assignment for house

site and for beneficial enjoyment; Rule 7 deals with priority to be W.P.(C) No.415 OF 2021(B)

observed in assignment; Rule 7A deals with preference to

kumkidars. Rule 8 deals with conditions of assignment on registry;

and Rule 9 deals with collection of arrears of Government dues and

issue of provisional patta.

7. In Varghese Abraham v. State of Kerala, Revenue

Department and others [2007 (3) KHC 365], a Division Bench

of this Court held that various provisions in the Kerala Land

Assignment Act and the Kerala Land Assignment Rules would

unmistakably show that the Act and the Rules are made to protect

the landless people by assigning them Government lands for

cultivation and other purposes. The provisions under the Act and

the Rules are not intended for enriching persons who hold

extensive lands. Assignment on registry of Government lands to

such persons would defeat the very purpose of the Act and the

Rules. The Division Bench held further that, there is no vested

right in any person to claim assignment on registry of Government

land.

8. The learned Senior Government Pleader would submit

that the 1st respondent will consider and pass appropriate orders

on Ex.P1 application for assignment dated 02.02.2019 filed by the

petitioner, if that application is in order and pending consideration, W.P.(C) No.415 OF 2021(B)

within a time limit to be fixed by this Court.

9. The learned counsel for the petitioner would submit that

consideration of Ex.P1 application for assignment dated

02.02.2019 may be with notice to the petitioner and after

affording him a reasonable opportunity of being heard.

10. Having considered the submissions made by the learned

counsel on both sides, this writ petition is disposed of directing the

1st respondent to consider and pass appropriate orders on Ex.P1

application for assignment made by the petitioner dated

02.02.2019, if that application is in order and pending

consideration, with notice to the petitioner and also to the

respondents 2 and 3 and after affording them an opportunity of

being heard, within a period of two months from the date of

receipt of a certified copy of this judgment.

11. In State of U.P. v. Harish Chandra [(1996) 9 SCC

309] the Apex Court held that no mandamus can be issued to

direct the Government to refrain from enforcing the provisions of

law or to do something which is contrary to law. In Bhaskara Rao

A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated that,

generally, no Court has competence to issue a direction contrary to

law nor can the Court direct an authority to act in contravention of W.P.(C) No.415 OF 2021(B)

the statutory provisions. The courts are meant to enforce the rule

of law and not to pass the orders or directions which are contrary

to what has been injected by law.

12. Therefore, in terms of the direction contained in this

judgment, the 1st respondent shall take an appropriate decision in

the matter, strictly in accordance with law, taking note of the

relevant statutory provisions and also the law on the point.

No order as to costs.

Sd/-

ANIL K. NARENDRAN JUDGE

MIN W.P.(C) No.415 OF 2021(B)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPLICATION FOR ASSIGNMENT DATED 2/2/2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 2/2/2019 ISSUED BY THE 1ST RESPONDENT.