State Of Kerala vs M.T.Thankachan on 14 October, 2025

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Kerala High Court

State Of Kerala vs M.T.Thankachan on 14 October, 2025

The question that arises for consideration in this appeal pertains to the claim made by the Government over teak, blackwood, ebony, and sandalwood trees that came into existence on land assigned under the Kerala Land Assignment Act, 1960 (hereinafter referred to as the 'Land Assignment Act') and the Kerala Land Assignment Rules, 1964 (hereinafter referred to as the 'Land Assignment Rules'). The trees in question grew subsequent to the assignment of the land. The issue is simple and straightforward: whether, in light of the provisions of the Land Assignment Act and Rules, and the conditions forming part of the patta, the ownership of such trees vests with the Government or with the assignee.

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2. The learned Single Judge in this matter was of the view that the conditions in the patta would apply only to trees covered under the provisions of the Kerala Promotion of Tree Growth in Non- forest Areas Act, 2005.

3. In this appeal, the State questions the judgment of the learned Single Judge. The learned Special Government Pleader, Shri T.P.Sajan, submitted that in light of the patta conditions and Section 8 of the Land Assignment Act read with Rule 8 of the Land Assignment Rules, the trees that came into existence subsequent to the assignment belong to the State, in view of the reservation made by the Government while issuing patta over the land as above.

4. First, we shall look at the relevant conditions imposed in the patta, which was issued in accordance with the form prescribed in Appendix II of the Land Assignment Rules.

"1. The full right over all the trees within the grant and specified in the Schedule vests in the Government and the assignee is bound to take care of all such trees standing on the land at the time of assignment or that may come into existence subsequent to it.

2. The assignee is bound to afford all facilities to the officers of Government in the matter of inspecting the land periodically for checking the trees referred to W.A.No.1798/2025 -:5:- 2025:KER:81418 in condition (1) above and removing them, if necessary:

Provided that the military personnel may lease the land assigned to them to others whilst they are away on active service.

15. The existing and customary rights of Government and the public in roads and paths and rivers streams and channels, running through or bounding the land, and the right of Government to a share in mines and quarries adjacent to the said land are reserved and are in no way affected by the grant."

5. There is no dispute regarding the absolute right of the Government over those trees that were specifically reserved at the time of grant of the patta and included in its schedule. However, there is no express stipulation either in the patta or in its schedule that trees, whether planted or naturally grown on the land subsequent to the assignment, would vest in the Government. The contention advanced by the learned Special Government Pleader proceeds on the assumption that such subsequently grown trees vest with the Government by virtue of the condition in the patta requiring the assignee to take care of all trees standing on the land at the time of assignment or those that may come into existence thereafter. According to the learned Special Government Pleader, it is precisely because the ownership of such trees continues to vest with the W.A.No.1798/2025 -:6:- 2025:KER:81418 Government that the said stipulation was incorporated as a condition in the patta.

6. To understand this issue, we will have to refer to the Land Assignment Act and the Land Assignment Rules made thereunder. Section 3 of the Land Assignment Act confers the power on the Government to assign Government land absolutely or subject to certain restrictions, limitations and conditions. Section 8 of the Kerala Land Assignment Act, 1960 stipulates as follows:

"8. Assignment to take effect with restrictions, conditions, etc. according to their tenor. - All the provisions, restrictions, conditions and limitations contained in any Pattah or other document evidencing the assignment of Government land or of any interest therein shall be valid and take effect according to their tenor, notwithstanding any law for the time being in force or any custom or contract to the contrary.

Explanation. - In this section, the expression "Government land" shall include land under the control or management of the Government at the time of the assignment."

7. Section 7 confers power on the Government to make rules with regard to assignments. Further, Rule 8 prescribes conditions of W.A.No.1798/2025 -:7:- 2025:KER:81418 assignment on the Registry.

8. The land which is styled as Government land in fact belonged to the State. It is the Legislature that confers authority to the Government to assign the land.

9. It is pertinent to refer to various statutes to understand the meaning and scope of "land".

9.1. Under Section 3(26) of the General Clauses Act, 1897:

"3(26). "immovable property" shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth;"

9.2. Under Section 3 of the Transfer of Property Act, 1882:

"immoveable property" does not include standing timber, growing crops or grass:

"attached to the earth" means--

(a) rooted in the earth, as in the case of trees and shrubs;

(b) imbedded in the earth, as in the case of walls or buildings; or

(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached."

9.3. Under Section 2(6) of the Registration Act, 1908 :

"2(6). "Immovable Property" includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, W.A.No.1798/2025 -:8:- 2025:KER:81418 and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass."

9.4. Land is defined under Section 3(p) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, as follows:

"3(p). "Land" includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth."

10. A combined reading of the above provisions shows that land includes what is attached to it. What is in existence at the time of assignment is the subject matter of the assignment. The Land Assignment Act and Rules are related to the assignment of ownership rights over land, which would otherwise vest in the Government, to an eligible assignee. The subsoil rights also exist along with the land. The State can stipulate conditions on the surface use of the land. The Legislature has also given power and authority to the Government to fix conditions on such assignments. The conditions relate to the nature of utilisation of the land and limitations on utilisation of the land. That means the conditions would follow the land assigned and W.A.No.1798/2025 -:9:- 2025:KER:81418 conveyed to the assignee. If the subsoil rights and trees existing at the time of assignment were expressly excluded as part of the assignment, their utilisation would be subject to restrictions or limitations imposed under the conditions of assignment. In the absence of any transfer of such rights over the subsoil or trees existing at the time of assignment, they continue to vest in the State. Any attempt by the assignee to utilise or exploit the same would amount to a breach of the conditions, rendering the patta liable to revocation. If the conditions are followed, the assignee enjoys the property as an absolute owner subject to the limitations imposed on enjoyment therein.

11. The assignment, as understood under the Land Assignment Act, must be in respect of something that existed at the time of assignment. There is no bar under law for the State to legislate to vest surface rights that existed at the time of assignment and that may come in the future. The question that arises for consideration in this matter is whether, in the absence of any provision relating to conditions on the surface rights to raise a claim W.A.No.1798/2025 -:10:- 2025:KER:81418 for the trees that may come into existence after the assignment, the Government would be justified in claiming rights over such trees.

12. Ownership is traditionally understood as a bundle of rights comprising the right to possess, the right to use and enjoy (jus utendi et fruendi), the right to dispose or transfer (jus disponendi), and the right to exclude others. This has been reiterated in the following judgments.

12.1. The Apex Court in Mohd. Noor v. Mohd. Ibrahim [(1994) 5 SCC 562] held as follows:

"4...In Butterworth's Words and Phrases Legally Defined, 2nd Edn., Vol. 4, page 61, 'ownership' has been defined as under:

"Ownership consists of innumerable rights over property, for example, the rights of exclusive enjoyment, of destruction, alteration, and alienation, and of maintaining and recovering possession of the property from all other persons. Such rights are conceived not as separately existing, but as merged in one general right of ownership."

Salmond summed up the concept of ownership as under:

"Summing up the conclusion to which we have attained, we may define the rights of ownership in a material thing as the general, permanent and inheritable right to the uses of that thing.

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5. Austin in his book Jurisprudence, 3rd Edn., page 817, defines the "right of ownership" as--

"a right indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration over a determinate thing."

The theoretical concept of 'ownership', therefore, appears to be that a person can be considered to be owner if he has absolute dominion over it in all respects and is capable of transferring such ownership. Heritability and transferability are no doubt some of the many and may be most important ingredients of ownership. But they by themselves cannot be considered as sufficient for clothing a person with absolute ownership." 12.2. This Court in Asher v. Hassankutty Hajee [2004 KHC 604] has held as follows:

"6... The ownership consists of a bundle of rights over some property. It also gives to the owner some claims, privileges, powers and immunities. Ownership imports three fundamental rights, namely, right to possession, right to enjoy and right to dispose. The owner of a property is not only entitled to possess it but also has the right to exclude all others from the possession or enjoyment of it. The rights normally exercisable by an owner are jus utendi (the right to use of the thing), jus possidendi (the right to possess a thing), jus abuntendi (the right to consume or destroy a thing), jus desponendi vel transferendi (the right to dispose of a thing or transfer by sale, gift, exchange, etc., jus sibi habendi (the right to hold a thing for oneself), jus alteri non habendi or jus prohibendi (the W.A.No.1798/2025 -:12:- 2025:KER:81418 right to exclude others from its use). Ownership has also been described as a right over a determinate thing, indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration ...."

13. Ownership confers authority to hold in exclusion of others in respect of possession and in enjoyment of the land. The right to hold the land and enjoy the trees grown thereon is part of ownership rights. If the Legislature had the intention to vest those trees with the State, it should have been expressed through the legislative mandate; otherwise, all that is attached through the ownership of the land would vest with the assignee of the land. The reservation of subsoil rights and trees existing at the time of assignment is not, in fact, a condition imposed on the transfer. Rather, these rights do not form part of the assignment and are expressly excluded from it. The condition imposed is only with respect to the use of the land and does not affect the State's ownership over the reserved items.

14. We also need to distinguish between 'transfer of ownership' and 'assignment' as referred to under the Land Assignment Act. Ownership is understood as a bundle of rights. In any transfer of W.A.No.1798/2025 -:13:- 2025:KER:81418 ownership, the entire bundle of rights would transfer to the transferee. In an assignment, it is not necessary that the entire bundle of rights would transfer, and it is open for the assignor to transfer a few of the rights. In any assignment, invoking the provisions under the Land Assignment Act, if the transferor, that is, if the Government transfers right to the assignee, reserving subsoil rights and also the trees standing at the time of the transfer in favour of the Government, it implies that the assignee is vested with a right to enjoy the surface of the land for cultivation, habitation, etc. and these surface rights vest with the assignees unless contrary intention is expressed in the grant. In this regard, the Apex Court in K. Thippanna v. Varalakshmi [(2012) 3 SCC 576] has observed that:

"10. ....It is well settled in law that subsoil rights do not form part of surfacial rights of the land. The pattedar/owner of the land is entitled only for the surfacial rights and subsoil rights normally vest in the State (see State of A.P. v. Duvvuru Balarami Reddy [AIR 1963 SC 264] )...."

15. In the absence of any statutory provisions to claim what is W.A.No.1798/2025 -:14:- 2025:KER:81418 attached to the land and also any powers conferred on the Government to make rules to claim over the trees which are grown subsequent to the assignment, the condition in the patta would have only a restricted meaning that the assignee is bound to take care of the trees which came into existence subsequently and could not itself confer the authority or the State to claim ownership over it.

16. The learned Special Government Pleader placed reliance on various precedents of this Court. A Division Bench of this Court in Crl. MC. No. 7347/2017 and Single Judges of this Court in W.P.C. No. 804/2006, Divisional Forest Officer, Malayattoor and Others v. P. M. Jalal and Another [2015 (5) KHC 468], Jose v. State of Kerala and Others [2020 (2) KHC 383] and Thomas Philip v. Forest Range Officer, Erumely and Others [2021 KHC 211] examined the matters concerning the conditions imposed and had no occasion to consider the question from the statutory provisions of the Land Acquisition Act and Land Acquisition Rules as to whether any power is conferred on the Government to vest with the trees which came subsequent to the assignment of the land. 'Vesting' is the W.A.No.1798/2025 -:15:- 2025:KER:81418 process of getting ownership either by divesting ownership or claiming a right or interest over it. In the absence of statutory provisions to vest the trees which grew subsequent to the assignment, the conditions in the patta that the assignee has to take care of all trees standing on the land itself will not confer interest or right on the Government.

17. A legal right is the recognition of an interest by law. It signifies the enjoyment of that interest and may relate either to an existing interest or to one that may arise in the future. However, statutory provisions concerning a right must ordinarily be interpreted with reference to rights that presently subsist, unless the statute expressly provides for rights that may arise in the future. The Land Assignment Act governs the assignment of Government land and, therefore, concerns itself with the rights subsisting in such land. The term interest denotes a person's specific legal relationship with the subject matter of property. Accordingly, the Government's interest must relate to the land and to what is attached to it. Any interest W.A.No.1798/2025 -:16:- 2025:KER:81418 contemplated to arise in the future cannot, however, be created in favour of the Government without the sanction or authority of law or by a contract. We find no provision in the Land Assignment Act conferring such a right over trees that may come into existence in the future, nor is there any enabling provision empowering the making of Rules to create such an interest.

Accordingly, the writ appeal stands dismissed. No costs.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE Sd/-

HARISANKAR V. MENON, JUDGE ms W.A.No.1798/2025 -:17:- 2025:KER:81418 APPENDIX OF WA 1798/2025 PETITIONER ANNEXURES Annexure I TRUE COPY OF THE JUDGMENT DATED 14.09.2018 IN CR MC NO.7347/2017 Annexure II TRUE COPY OF THE JUDGMENT IN (MANOJ A. N VS STATE OF KERALA AND OTHERS) 2013(3) KHC 505 Annexure III COPY OF THE JUDGMENT DATED 02.04.2024 IN SLP (CRL) NOS.8116 OF 2022 Copy of Review COPY OF REVIEW PETITION NO.376/2025 Petition

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