Kerala High Court
Venu N vs State Of Kerala on 22 October, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
2024:KER:78657
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946
WP(C) NO. 39934 OF 2023
PETITIONERS:
1 VENU N
AGED 62 YEARS
QUARTER NO. 42, INDUSTRIAL QUARTERS, CHELAMATTOM,
OKKAL PO, PERUMBAVOOR, PIN - 683550
2 REMANY K T
AGED 54 YEARS
W/O. LATE SUBHASH THAMPI, INDUSTRIAL QUARTERS,
CHELAMATTOM, OKKAL PO, PERUMBAVOOR, PIN - 683550
BY ADVS.
SINU.G.NATH
N.ANILKUMAR
DEEPA DEVI C.
K.R.RAJAGOPALAN NAIR (PERUMBAVOOR)
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED CHIEF SECRETARY, GOVERNMENT
SECRETARIATE, THIRUVANANTHAPURAM, PIN - 695001
2 THE SCRETARY
REVENUE BOARD,NORTH BLOCK, SECRETARIAT,
THIRUVANANTHAPURAM ., PIN - 695001
3 THE SECRETARY
HOUSING B, SECRETARIATE,
THIRUVANANTHPAURAM, PIN - 695001
4 TAHSILDAR
KUNNATHUNADU TALUK, PERUMBAVOOR,
ERNAKULAM, PIN - 682031
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5 ADDL. R5. THE VILLAGE OFFICER,
CHELAMATTOM VILLAGE, OKKAL, KUNNATHUNAD,
ERNAKULAM-683550.
[ADDITIONAL R5 IS IMPLEADED IS AS PER ORDER DATED
15.02.2024 IN I.A. NO.1/2024 IN WP(C)39934/2023]
6 N.P. PUREUSHAN,
NIKATHIL HOUSE, RAYONS QUARTERS NO.1, CHELAMATTOM,
OKKAL P.O., ERNAKULAM - 683 550.
7 RADHAMONY. I.B
D/O. SAROJINIAMMA (LATE), 321,
ROOM NO. 3, RAYONS QUARTERS NO.2.,
OKKALP.O., ERNAKULAM - 683 550.
8 E.K. JOSE
IDAKKALATHOOR HOUSE, RAYONS QUARTERS NO.4,
CHELAMATTOM, OKKAL P.O., ERNAKULAM - 683 550.
9 SATHY
W/O. K.K. THANKAPPAN NAJR (LATE),
NANDANAM HOUSE, RAYONS QUARTERS NO.5, CHELAMATTOM,
OKKAL P.O., ERNAKULAM - 683 550.
10 SAYBOON
W/O. SHAKE AMEER (LATE), THOPPH HOUSE,
RAYONS QUARTERS NO.14, CHELAMATTOM,
OKKAL P.O., ERNAKULAM - 683 550.
11 RADHA. M.J.
W/O. P.C. RAJ (LATE), RADHALAYAM HOSUE,
RAYONS QUARTERS NO.34, CHELAMATTOM, OKKALP.O.,
ERNAKULAM - 683 550.
12 MERLIN D'SILVA,
W/O. MOLD D'SILVA (LATE), VALIYAKATTATH
HOUSE, RAYONS QUARTERS NO:18 CHELAMATTOM,
OKKAL P.0., ERNAKULAM - 683 550.
13 RAKESH
S/O RAMACHANDRA PILLAI (LATE) &
AMBIKA DEVI LANE, ALIYATH HOUSE,
RAYONS QUARTERS NO.19, CHELAMATTOM,
OKKALP.O., ERNAKULAM - 683 550.
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14 ANNAMMA CHANDY
W/O. P.K. CHANDY (LATE), PULIMOOTTIL HOUSE ,
RAYONS QUARTERS NO.23, CHELAMATTOM,
OKKAL P.O., ERNAKULAM - 683 550.
15 LALITHA BHAI
W/O. KESAVADAS PAI (LATE), KALAPPARAMBATH
HOUSE, RAYONS QUARTERS NO.26, CHELAMATTOM,
OKKAL P.O., ERNAKULAM - 683 550.
16 MARY
W/O. THOMMY (LATE), PANACKAL HOSUE,
RAYONS QUARTERS NO.27, CHELAMATTOM,
OKKAL P.O., ERNAKULAM - 683 550.
17 SANTHAMMA
W/O .AZHAKAPPA PILLAI(LATE),
RAYONS QUARTERS NO.29, CHELAMATTOM,
OKKALP.O., ERNAKULAM - 683 550.
18 PADMINI SUKUMARAN
W/O P.K. SUKUMARAN(LATE) PUTHIYARACKAL
HOUSE, RAYONS QUARTERS NO.30 CHELAMATTOM,
OKKAL P.O., ERNAKULAM - 683 550.
19 SOBHANA DEVI
W/O .BALACHANDRAN NAIR(LATE),
RAYONS QUARTERS NO.31, CHELAMATTOM,
OKKALP.O., ERNAKULAM - 683 550.
20 KARTHIYAYINI AMMA
W/O. KARUNAKARAN NAIR (LATE), CHERIL
HOUSE, RAYONS QUARTERS NO.15, CHELAMATTOM,
OKKAL P.O., ERNAKULAM - 683 550.
21 A.V. SASIDHARAN
S/O. R. VASUDEVAN NAIR (LATE), AACHIRKKAL
HOUSE, RAYONS QUARTERS NO.35, CHELAMATTOM,
OKKAL P.O., ERNAKULAM - 683 550.
22 SIVARAJAN. K.U
KADAPPILLIPARAMBIL HOUSE, RAYONS
QUARTERS NO.38, CHELAMATTOM,
OKKAL P.O., ERNAKULAM - 683 550.
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23 THANKAMMA
W/O. SEKHARAN (LATE), KUPPASSERI HOUSE,
RAYONS QUARTERS NO.39, CHELAMATTOM,
OKKAL P.O., ERNAKULAM - 683 550.
24 PAULRAJ
PAIKKANADU HOUSE, RAYONS QUARTERS NO.41,
CHELAMATTOM, OKKAL P.O., ERNAKULAM - 683 550.
25 R. MEYYAPPAN
S/O. S. RAGHAVAN (LATE), OORANIKKARAN
HOUSE, RAYONS QUARTERS NO.43, CHELAMATTOM,
OKKAL P.O., ERNAKULAM - 683 550.
26 JUDSON FIGOROUS
S/O. ROBORT FIGOROUS (LATE), PUTHIYAPARAMBIL
HOUSE, RAYONS QUARTERS NO.44, CHELAMATTOM,
OKKAL P.O., ERNAKULAM - 683 550.
27 N.K. RAJAMMA
W/O. A.K. KUNJAN (LATE), AMMUPPILLY
HOUSE, RAYONS QUARTERS NO.45, CHELAMATTOM,
OKKAL P.O., ERNAKULAM - 683 550.
28 SUHARA
W/O. P.A. ABOOBACKER (LATE), PANIKKARUKUDI,
RAYONS QUARTERS NO.49, CHELAMATTOM,
OKKAL P.O., ERNAKULAM - 683 550.
29 LEELAMONY
W/O. VELAYUDHAN PILLAI,(CHELAMMATTOM MONY) (LATE),
KOLLAMMURI HOUSE, RAYONS QUARTERS NO.50,
CHELAMATTOM, OKKAL P.O., ERNAKULAM - 683 550.
[ADDITIONAL RESPONDENT NOS. 6 TO 29 ARE IMPLEADED AS
PER ORDER DATED 19.08.2024 IN I.A. NO.7/2024 IN
WP(C) 39934/2023 ]
BY ADVS.
JACOB E SIMON
SRI. S.RENJITH - SPECIAL GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
The 1st petitioner and the husband and father-in-law of
the 2nd petitioner were employees of the company named
Travancore Rayons Limited (for short 'the company'). While
the company was functioning, the Government handed over
land to it for its requirement. The buildings were
constructed in the revenue puramboke by the Government
and handed over to the company for accommodating its
employees under the hire purchase scheme. The buildings
were constructed under the Industrial Housing Scheme for
allotment to the occupants. After the factory wound up its
functioning in 90's, the occupants of the quarters
includingAPER LESS the petitioners submitted an application
for assignment of the building occupied by them along with
its land. After verifying the eligibility of the persons
occupied, among 50 possessors, only 30 were found to be
eligible for the assignment of land. The Government passed
Ext.P14 order whereby land along with the building occupied
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by them were assigned to 24 occupants excluding the
petitioners. The petitioners were excluded on the specific
ground that they were not eligible for assignment as their
family income is above the limit fixed for the applicants for
pattayam. The petitioners have approached this Court
challenging their exclusion.
2. I have heard Sri. Sinu G. Nath, the learned counsel
for the petitioners and Sri. S. Renjith, the learned Special
Government Pleader.
3. The learned Government Pleader justified the
exclusion of the petitioners on two grounds:
i. There is nothing on record to show that the 1 st
petitioner or the predecessor in interest of the 2 nd
petitioner were in occupation of the land prior to
1st August, 1971.
ii. The petitioners were having income exceeding the
limit prescribed under Sub-rule (2) of Rule 7 of
Kerala Land Assignment Rules.
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4. Rule 7 of the Kerala Land Assignment Rules (for
short 'the Rules') deals with assignment of Government
land. Sub-rule (1) of Rule 7 specifically deals with the
assignment of occupied land and Sub-rule (2) of Rule 7
specifically deals with the assignment of unoccupied land.
5. Rule 7 of the Rules reads as follows:
"7. Priority to be observed in
assignment.- (1) Where any person is in
occupation of Government lands under lease,
whether current or time expired, or by way of
encroachment not considered objectionable
[such land if such occupation is before the 1 st
day of August 1971 shall be assigned to him on
registry:]
[Provided that the total extent of land, if
any, owned or held by him in proprietary right or
with security of tenure is less than the limits laid
down in sub-rule (1) of rule 5 or the annual
family income from sources other than the
Government land held by him is below
Rs.1,00,000;
Provided further that, in the case of any
land set apart for assignment on registry to the
members of Scheduled Caste/Scheduled Tribe
and subsequently encroached upon by those
persons who are landless and eligible for
assignment of land under these Rules, such land
may be assigned to such encroachers, only after
setting apart equal extent of other suitable
unoccupied area for the members of Scheduled
Caste/Scheduled Tribe Community;
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Provided also that, in the case of landless
Scheduled Caste and Scheduled Tribe families
income limit mentioned in the first proviso shall
not be applicable.]
(2) In the case of unoccupied lands, the
following order of preference shall be observed
in granting registry:-
(i) First preference.- for persons who do not
own or hold any land either in proprietary right
or with security of tenure and whose annual
family income does not exceed [Rs.1,00,000]:
Provided that in assigning lands under
this clause [ten percent of the area shall be
assigned to Ex-servicemen and] not less than
twenty five per cent of the area shall be
assigned to the members of the Scheduled
Castes and Scheduled Tribes subject to
availability of applicants."
6. A reading of the above provision would show that
only a person who is in occupation of the land before the 1 st
day of August, 1971 is eligible for assignment. However,
Rule 2(b) of the Rules defines "assignee" as a person to
whom land is assigned under the Rules and includes his
heirs or successors in interest. Different criterias have been
fixed by the statute for the assignment of occupied land and
for the assignment of unoccupied land. Sub-rule (1) of Rule
7 of the Rules deals with a case where a person is in
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occupation of Government land under lease or by way of
encroachment not considered objectionable, whereas sub-
rule (2) of Rule 7 of the Rules deals with unoccupied lands.
This is a case that falls under sub-rule (1) because the
petitioners and all other applicants were in occupation of the
Government land under the lease. It is pertinent to note
that the income criteria is not applicable to a case that falls
under sub-rule (1) of Rule 7 of the Rules. In other words,
only in case of occupied lands, the income criteria that
annual family income should not exceed Rs.1,00,000/- would
apply. Thus, the exclusion of the petitioners on the ground
that their family income is above the limit fixed under sub-
rule (2) of Rule 7 of the Rules cannot be sustained at all.
7. The learned Government Pleader submitted that
admittedly the 1st petitioner started occupation of the
building in the year 1981 and in the case of the 2 nd
petitioner, there is nothing on record to show that her
predecessor occupied the land prior to 1971. It is true that
admittedly the 1st petitioner started occupying the building
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in the year 1981. Therefore, he cannot claim the benefit of
sub-rule (1) of Rule 7 of the Rules. But, so far as the 2 nd
petitioner is concerned, her case is that the building was
originally occupied by her father-in-law namely Mr.
Mukundan prior to 1971 and on the death of Mr. Mukundan,
her husband Subhash Thambi got employment in the
company under dying in harness scheme and started to
occupy the very same building and on the death of
Mr. Subhash Thambi, she continued to occupy the building.
In the additional counter affidavit filed by 4 th respondent, it is
stated that Mr. Subhash Thambi started occupying the
building for the first time in the year 1990. Such contention
cannot be prima facie correct in view of Ext.P9. In Ext.P9, it
is stated that rent was due from Mr. Subash Thambi from
17.12.1983 onwards. That apart, in Ext.P17 application filed
by the 2nd petitioner for assignment, she has specifically
stated that her predecessor was in occupation of the
building from 1962. In the counter affidavit filed by the 4 th
respondent, there is no case at all that the 2 nd petitioner did
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not occupy the building prior to 1971. It is for the first time
in the additional counter affidavit such a contention has
been raised. That apart, the claim of the petitioners for
assignment of the building and the land was rejected as per
Ext.P14 order not on the ground that the petitioners were
not in occupation of the building and the land prior to 1971
but on the ground that their family income exceeded the
limit. I have already found that in a case that falls under
sub-rule (2) of Rule 7 of the Rules, the interim criteria is not
applicable. Therefore, the 2nd petitioner is entitled to get the
building and land assigned without payment. Since the 1 st
petitioner does not meet the criteria that he was in
occupation of the building prior to 1971, his prayer for
assignment of the land and building cannot be allowed
without payment. Hence, the respondents are directed to
transfer the ownership and title of the building and the land
covered by it to the 2nd petitioner without payment, in
accordance with law, within a period of six months from the
date of receipt of a copy of this judgment. The 2 nd petitioner
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shall be issued patta on payment of the amount as per the
Land Assignment Rules.
The Writ Petition is disposed of as above.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
BR
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APPENDIX OF WP(C) 39934/2023
PETITIONERS' EXHIBITS
Exhibit P1 TRUE COPY OF THE COMMUNICATION DATED
16.05.1987 ISSUED BY THE 5TH RESPONDENT
Exhibit P2 TRUE COPY OF THE LETTER DATED 17.10.1987
AND VALUATION
Exhibit P3 TRUE COPY OF THE PROPOSAL DATED
09.11.1988 BY REVENUE SECRETARY
Exhibit P4 TRUE COPY OF THE JUDGMENT DATED
14.03.2002 IN OP NO. 6501/1996(Y)
Exhibit P5 TRUE COPY OF THE JUDGMENT DATED
Exhibit P6 TRUE COPY OF THE PROCEEDING OF GOVT.
DATED 11.05.2004
Exhibit P7 TRUE COPY OF THE COMMUNICATION ISSUED BY
THE LAND REVENUE COMMISSIONER ON
19.12.2017
Exhibit P8 TRUE COPY OF THE LETTER OF THE VILLAGE
OFFICER DATED 23.02.2018
Exhibit P9 COPY OF AN EXTRACT OF LIST SHOWING THE
NAME OF 27 OCCUPANTS WHO ARE NOW IN
POSSESSION AND THE AMOUNT TO BE
RECOVERED FROM THEM TILL DECEMBER 2017.
Exhibit P10 TRUE COPY OF THE RECEIPT SHOWING
RS.2592/- DEPOSITED BEFORE THE TREASURY,
KUNNATHUNADU
Exhibit P11 TRUE COPY OF RECEIPT DATED 28.12.2018
FOR RS.4932/- BEFORE THE TREASURY,
KUNNATHUNADU.
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Exhibit P12 TRUE COPY OF THE PROCEEDINGS DATED
13.12.1973
Exhibit P12(a) AFFIDAVIT
Exhibit P13 TRUE COPY OF THE PROCEEDINGS DATED ON
20/07/2024
Exhibit P14 THE ORDER DATED 7.7.2024 PASSED BY
REVENUE SECRETARY
Exhibit P15 TRUE PHOTOCOPY OF THE COMMUNITY
CERTIFICATE ISSUED TO THE 2ND
PETITIONER'S HUSBAND DT. 19/01/2016
Exhibit P16 TRUE PHOTOCOPY OF THE DEATH CERTIFICATE
ISSUED BY THE MUNICIPALITY 08/12/1995
Exhibit P17 TRUE PHOTOCOPY OF THE APPLICATION
SUBMITTED BEFORE THE AUTHORITIES DT.
RESPONDENTS' EXHIBITS: NIL
