Rabiya P vs The District Collector
2021 Latest Caselaw 1399 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

    THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942

                      W.P.(C) No.27298 OF 2020(J)


PETITIONER:

               RABIYA P.,
               AGED 40 YEARS, W/O. SAIDU,
               PALLARAM,
               PANAYAL P.O., HOSDURG TALUK,
               KASARAGOD DISTRICT-670 318.

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

RESPONDENTS:

      1        THE DISTRICT COLLECTOR,
               KASARAGOD, COLLECTORATE,
               KASARAGOD DISTRICT-671 121.

      2        THE TAHSILDAR,
               TALUK OFFICE, HOSDURG,
               KASARAGOD DISTRICT-670 315.

      3        THE VILLAGE OFFICER,
               PANAYAL VILLAGE,
               KASARAGOD DISTRICT-671 318.

      R1-R3    SMT.A.C.VIDHYA, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.27298 OF 2020(J)
                                  -2-



                              JUDGMENT

The petitioner, who is stated to be in possession of 9.5 cents

of land in Survey No.137/1A2pt11 in Panayal Village of Hosdurg

Taluk in Kasaragod District, has filed this writ petition under Article

226 of the Constitution of India, seeking a writ of mandamus

commanding the 2nd respondent to consider Ext.P1 application for

assignment of the said land having an extent of 9.5 cents in

Panayal Village of Hosdurg Taluk in Kasaragod District, within a

time limit to be prescribed by this Court.

2. On 06.01.2021, when this writ petition came up for

admission, the learned Government Pleader was directed to get

instructions, as to the time limit within which Ext.P1 application

can be finally disposed of.

3. Heard the learned counsel for the petitioner and also

the learned Government Pleader appearing for the respondents.

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. W.P.(C) No.27298 OF 2020(J)

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

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 W.P.(C) No.27298 OF 2020(J)

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 would submit that

Ext.P1 application made by the petitioner has already been

numbered as L.A.No.51/2020 of Panayal Village and the 2 nd

respondent has already called for a report from the Village Officer.

After getting the report of the Village Officer, the 2 nd respondent

shall take an appropriate decision on that application, within a

time limit to be fixed by this Court.

9. The learned counsel for the petitioner would submit that

consideration of Ext.P1 application may be with notice to the

petitioner and after affording her an opportunity of being heard. W.P.(C) No.27298 OF 2020(J)

10. Having considered the submissions made by the learned

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

the 2nd respondent Tahsildar to consider and pass appropriate

orders on Ext.P1 application made by the petitioner, strictly in

accordance with law, after obtaining necessary report from the 3 rd

respondent Village Officer, with notice to the petitioner and after

affording her 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.

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 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, the direction contained in this judgment to W.P.(C) No.27298 OF 2020(J)

the 2nd respondent Tahsildar is for taking 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 bpr W.P.(C) No.27298 OF 2020(J)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 28/09/2020.

EXHIBIT P2 A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT UNDER THE RTI ACT DATED 11/11/2020.

RESPONDENTS' EXHIBITS: NIL