Sheeba Vijayan, (Deceased) vs State Of Kerala
2022 Latest Caselaw 334 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
                          WP(C) NO. 14539 OF 2018
PETITIONERS:

     1     SHEEBA VIJAYAN, (DECEASED), AGED 44 YEARS
           W/O VIJAYAN, NEW COLONY, PALARIVATTOM P O, EDAPPALLY
           SOUTH VILLAGE, ERNAKULAM, PIN-682025.
     2     ADDL. P2. VIJAYAN, AGED 49 YEARS, S/O KUNJACHAN P, NEW
           COLONY, PALARIVATTOM P.O., EDAPPALLY SOUTH VILLAGE,
           ERNAKULAM.
     3     ADDL. P3. SARANYA VIJAYAN, AGED 26 YEARS, D/O VIJAYAN,
           NEW COLONY, PALARIVATTOM P.O., EDAPPALLY SOUTH VILLAGE,
           ERNAKULAM.
     4     ADDL. P4. VIVEK CHAKRAVATHY, AGED 24 YEARS
           S/O VIJAYAN, NEW COLONY, PALARIVATTOM P.O.,
           EDAPPALLY SOUTH VILLAGE, ERNAKULAM.

           (THE LEGAL HEIRS OF DECEASED SOLE PETITIONER ARE
           IMPLEADED AS ADDITIONAL PETITIONERS 2 TO 4 AS PER THE
           ORDER DATED 17/10/2018 IN IA.01/2018)

           BY ADVS.
           SRI.K.S.MADHUSOODANAN
           SMT.S.JESSIN
           SRI.K.S.MIZVER
           SRI.P.K.RAKESH KUMAR
           SRI.M.M.VINOD KUMAR


RESPONDENTS:

     1     STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT
           OF SCHEDULED CASTES AND SCHEDULED TRIBES DEVELOPMENT,
           SECRETARIAT, THIRUVANANTHAPURAM-PIN-695001.
     2     DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM,
           PIN-682030.
     3     THASILDAR, KANAYANNUR TALUK OFFICE, ERNAKULAM DISTRICT,
           PIN-682011.
     4     VILLAGE OFFICER, EDAPPALLY SOUTH VILLAGE OFFICE,
           ERNAKULAM, PIN-682024.
 WPC 14539/18
                                        2

     5     THE TRIBAL DEVELOPMENT OFFICER, TRIBAL DEVELOPMENT
           OFFICE, MINI CIVIL STATION, MUDAVOOR PO,
           MUVATTUPUZHA, PIN-686669.
     6     ADDL. R6. STATE OF KERALA, REPRESENTED BY
           ITSSECRETARY, REVENUE DEPARTMENT, SECRETARIAT,
           THIRUVANANTHAPURAM-695001.
     7     ADDL. R7. CORPORATION OF COCHIN,
           ERNAKULAM - 682011, REPRESENTED BY ITS SECRETARY.

           (ADDITIONAL R6 AND R7 ARE IMPLEADED AS PER ORDER
           DATED 05/02/2019 IN IA 01/2019.)
           BY ADVS.
           GOVERNMENT PLEADER
           SRI.RAAJESH S.SUBRAHMANIAN,SC,COCHIN CO
           SRI.R.HARISHANKAR

           SMT. LATHA THANKAPPAN - SPL. GP


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   13.01.2022,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WPC 14539/18
                                               3

                               JUDGMENT

The petitioners impugn Ext.P17 order issued by the

Government on various grounds, but primarily that it has followed

a Rule which is not applicable to them.

2. Sri.M.M.Vinod Kumar - learned counsel for the

petitioner, pointed out that Ext.P17 was issued purportedly in

compliance of the directions of this Court in Ext.P16, but that it

is recorded therein that his clients are not entitled to assignment

under Rule 7(2) of the Kerala Land Assignment Rules, 1964

(hereinafter referred to as 'the Rules' for short); while the proper

Rule to have been adopted was Rule 7(1) thereof. He further

argued that the provisions of the Kerala Assignment of

Government Land to the Scheduled Tribes Rules, 2001, would also

be attracated in the case of his clients - they being members of

Scheduled Tribe - but that in Ext.P17 none of the germane or

relevant factors have been considered, thus rejecting their claim

merely saying that their annual income exceeds Rs.1 Lakh. He, WPC 14539/18

therefore, prayed that Ext.P17 be set aside and the Government

be directed to reconsider the matter strictly in terms of the afore

provisions.

3. Pertinently, Sri.M.M.Vinod Kumar, thereafter, submitted

that the original petitioner, Smt.Sheeba Vijayan, is no more and

that it is her husband and children who are now claiming

assignment. He argued that, therefore, the reason stated in

Ext.P17 that the annual income of Smt.Sheeba Vijayan was in

excess of Rs.1 Lakh is without any basis, because the authorities

appear to have taken into account the fact that her husband was

earning from some employment, but that this would be of no

relevance because it was her entitlement which was to be

considered.

4. The afore submissions of Sri.M.M.Vinod Kumar was

answered by Smt.Latha Thankappan - learned Special Government

Pleader, saying that even though Ext.P17 refers to a wrong Rule,

the reasons why the original petitioner late Sheeba Vijayan, WPC 14539/18

cannot be granted any assignment has been stated in detail in the

counter affidavit filed by her clients. She showed me that, as per

the averments therein, late Sheeba Vijayan and her family had

been allotted land earlier but that the same had been alienated

and that her father is still in possession of large extents of land,

to which she is also one of the legal heirs.

5. Even when I hear the learned Special Government

Pleader as afore, the law has been well settled through the

judgment of the Honourable Supreme Court in Mohinder Singh

Gill v. Chief Election Commissioner [1978(1) SCC 405] that an

order can be supported only on the strength of its contents and

not on the basis of subsequent pleadings and documents.

6. In that perspective, when one examines Ext.P17, it can

certainly not find favour in law; and this is, to a pointed

question, admitted to even by Smt.Latha Thankappan.

7. That said, however, I am afraid that this Court cannot

grant relief to the petitioners affirmatively at this time, because WPC 14539/18

the counter affidavit of the official respondents have certain

crucial averments which cannot be completely disregarded.

8. I am, therefore, of the firm view that the matter will

have to be reconsidered by the competent Authority leading to a

fresh order, however, adverting to the aforementioned provisions

and not to Rule 7(2) of the Rules. It has also to be kept in mind

by the competent Authority that proviso to Rule 7(1) has been

amended, taking away the income criteria therein, so that the

application of late Smt.Sheeba Vijayan cannot be rejected for the

reasons that have been recorded in Ext.P17.

9. I, however, clarify that every other germane and

relevant input will be kept in mind while further orders are

issued, including the averments in the counter affidavit of the

official respondents, but after affording necessary opportunity

being afforded to the legal heirs of late Sheeba Vijayan during the

enquiry.

10. The afore exercise shall be completed by the competent WPC 14539/18

Authorities as expeditiously as is possible, but not later than three

months from the date of receipt of a copy of this judgment.

This Writ Petition is thus ordered.

Sd/-

RR                                     DEVAN RAMACHANDRAN
                                                JUDGE
 WPC 14539/18


                APPENDIX OF WP(C) 14539/2018

PETITIONER EXHIBITS
EXHIBIT P1          PHOTOGRAPH SHOWING THE HOMESTEAD OF THE
                    PETITIONER.
EXHIBIT P2          PROPERTY TAX RECEIPT DATED 16.01.2007.
EXHIBIT P2(A)       PROPERTY TAX RECEIPT DATED 23.11.2016.
EXHIBIT P3          PHOTO COPY OF THE CERTIFICATE ISSUED BY
                    THE ASSISTANT ENGINEER, KSEB
                    PALARIVATTOM DATED 4.10.2002.
EXHIBIT P4          PHOTOCOPY OF THE IDENTITY CARD ISSUED BY
                    THE COCHIN CORPORATION.
EXHIBIT P5          PHOTOCOPY OF THE RATION CARD
                    NO.1732071785.
EXHIBIT P6          PHOTOCOPY OF THE APPLICATION FOR LAND
                    ASSIGNMENT.
EXHIBIT P7          PHOTOCOPY OF THE REPORT OF THE 4TH
                    RESPONDENT DATED 15.11.2006.
EXHIBIT P7(A)       PHOTOCOPY OF THE MAHASAR OF THE 4TH
                    RESPONDENT DATED 15.11.2006.
EXHIBIT P8          PHOTOCOPY OF THE APPLICATION FOR LAND

ASSIGNMENT SUBMITTED BEFORE THE 5TH RESPONDENT DATED 22.9.06.

EXHIBIT P9 PHOTOCOPY OF THE LIST OF BENEFICIARIES OF BSUP HOUSING SCHEME.

EXHIBIT P10 PHOTOCOPY OF THE REPORT OF THE 4TH RESPONDENT DATED 22.4.2008.

EXHIBIT P11 PHOTOCOPY OF THE COMPLAINT DATED 3.10.2002 TO MINISTER, SC & ST DEPARTMENT.

EXHIBIT P12 PHOTOCOPY OF THE JUDGMENT OF HON'BLE HIGH COURT OF KERALA DATED 19.3.2012 IN WPC 7039/07.

EXHIBIT P13 PHOTOCOPY OF THE REPRESENTATION DATED 16.4.2012.

EXHIBIT P14 PHOTOCOPY OF THE REPORT OF ADDITIONAL TAHSILDAR KANAYANNUR DATED 25.5.2012. EXHIBIT P15 PHOTOCOPY OF THE APPLICATION DATED 14.11.2012 FILED UNDER RIGHT TO INFORMATION ACT.

EXHIBIT P15(A) PHOTOCOPY OF THE REPLY DATED 4.12.2012 GIVEN UNDER RIGHT TO INFORMATION ACT.

WPC 14539/18

EXHIBIT P16 PHOTOCOPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA DATED 27.3.2017.

EXHIBIT P17 PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DATED 9.10.2017.

EXHIBIT P18 PHOTOCOPY OF THE REPORT OF THE 4TH RESPONDENT DATED 7.11.2017.

EXHIBIT P18(A) PHOTOCOPY OF THE MAHAZAR DATED 7.11.2017 OF THE 4TH RESPONDENT.

EXHIBIT P19 PHOTOCOPY OF THE LETTER NO.13274/17 DATED 27.11.2017 OF THE 2ND RESPONDENT. RESPONDENT EXHIBITS EXHIBIT R1 (A) TRUE COPY OF THE JUDGMENT DATED 27/03/2008 IN WPC NO.15709/2008.

EXHIBIT R1 (B) TRUE COPY OF THE GOVERNMENT ORDER DATED 27/08/2012.

EXHIBIT R1 (C) TRUE COPY OF THE NOTICE NO.B4097/05(2) DATED 18/12/2006 ISSUED BY THE TRIBAL DEVELOPMENT OFFICER, MUVATTUPUZHA.

EXHIBIT R1 (D) TRUE COPY OF THE RELEVANT PAGES OF THE REVENUE GUIDE ISSUED BY THE GOVERNMENT.

EXHIBIT R1 (E) TRUE COPY OF THE GO (P) NO.41/2002/SCSTDD DATED 20/07/2002. EXHIBIT R1 (F) TRUE COPY OF THE GO(MS) NO.23/2010/SCSTDD DATED 24/02/2010. EXHIBIT R1 (G) TRUE COPY OF THE GO (MS) NO.106/2010/SCSTDD DATED 08/10/2010.