Aslam S.A vs The District Collector
2021 Latest Caselaw 1191 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

 WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA,
                          1942

                  WP(C).No.27384 OF 2020(W)


PETITIONER :

             ASLAM S.A.
             AGED 42 YEARS
             S/O. MULLACHERRI KUNHAMU, ASLAM MANZIL,
             MULLACHERRI, UDUMA, BARA VILLAGE, KASARAGOD
             DISTRICT-PIN - 671319.

             BY ADVS.
             SRI.T.R.HARIKUMAR
             SRI.ARJUN RAGHAVAN

RESPONDENTS:

     1       THE DISTRICT COLLECTOR
             KASARAGOD, COLLECTORATE, KASARAGOD DISTRICT,
             PIN - 671121.

     2       THE TAHSILDAR,
             TALUK OFFICE, HOSDURG, KASARAGOD DISTRICT, PIN
             - 671315.

     3       THE VILLAGE OFFICER,
             PANAYAL VILLAGE, KASARAGOD DISTRICT, PIN -
             671318.



             R BY SMT A.C.VIDHYA- GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP             FOR
ADMISSION ON 13.01.2021, THE COURT ON THE SAME             DAY
DELIVERED THE FOLLOWING:
                                    -2-
WP(C).No.27384 OF 2020(W)


                            JUDGMENT

The petitioner is in possession of 0.07 cents of property

in Sy.No.137/1A1pt11 in Panayal Village of Hosdurg Taluk,

covered by Ext.P1 sale deed dated 05.10.1995 of the Sub

Registrar Office, Uduma. He has effected mutation and paying

land tax, as evidenced by Ext.P2 tax receipt dated

03.08.2020. The petitioner submitted Ext.P3 application dated

28.09.2020 before the 2nd respondent, for issuance of patta on

knowing that no patta has been issued in respect of the

property covered by Ext.P1. Ext.P3 application made by the

petitioner is pending consideration before the 2 nd respondent.

The petitioner has filed this writ petition under Article 226 of

the Constitution of India, seeking a writ of mandamus

commanding the 2nd respondent Tahsildar to consider Ext.P3

application for assignment of the aforesaid land, within a time

limit to be fixed by this Court.

2. On 09.12.2020, when this writ petition came up for

admission, the learned Government Pleader sought time to

get instructions.

3. Heard the learned counsel for the petitioner and

also the learned Government Pleader appearing for the

WP(C).No.27384 OF 2020(W)

respondent.

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

WP(C).No.27384 OF 2020(W)

priority to be 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 Government Pleader, on instructions,

would submit that in Ext.P3 application made by the

petitioner, which has already been numbered as

L.A.52/20/Panayal, report has already been called for from

WP(C).No.27384 OF 2020(W)

the 3rd respondent Village Officer and that, the 2nd respondent

shall take an appropriate decision on that application, after

complying with the statutory requirements, within a time limit

to be fixed by this Court.

9. The learned counsel for the petitioner would submit

that the petitioner may be granted an opportunity of being

heard at the time of consideration of Ext.P3 application by the

2nd respondent Tahsildar.

10. Having considered the submissions made by the

learned counsel on both sides, this writ petition is disposed of

directing the 2nd respondent Tahsildar to consider Ext.P3

application made by the petitioner and take an appropriate

decision, with notice to the petitioner and after affording him

an opportunity of being heard, as expeditiously as possible, at

any rate, within a period of three months from the date of

receipt of a certified copy of this judgment, after complying

with the statutory requirements.

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.

WP(C).No.27384 OF 2020(W)

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 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 2nd respondent Tahsildar 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.

Sd/-

ANIL K.NARENDRAN, JUDGE

AV/13/1

WP(C).No.27384 OF 2020(W)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE SALE DEED DATED 05.10.1995 OF THE SUB REGISTRAR OFFICE, UDUMA.

EXHIBIT P2 A TRUE COPY OF THE TAX RECEIPT DATED 03.08.2020 ISSUED FROM THE PANAYAL VILLAGE OFFICE,

EXHIBIT P3 A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 28.09.2020.

EXHIBIT P4 A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT UNDER THE RTI ACT DATED 11.11.2020.