Kerala High Court
C.N. Rajamma vs State Of Kerala on 30 June, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
FRIDAY, THE 10TH DAY OF JUNE 2016/20TH JYAISHTA, 1938
WP(C).No. 1475 of 2007 (A)
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PETITIONERS:
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1. C.N. RAJAMMA, W/O.PARAMESWARAN,
CHAITHANYA, PARAMBITHARA ROAD, KOCHI-15.
2. SHAJI. P., S/O.PARAMESWARAN,
CHAITHANYA, PARAMBITHARA ROAD, KOCHI-15.
3. MAYA. R., D/O.PARAMESWARAN,
CHAITHANYA, PARAMBITHARA ROAD, KOCHI-15.
4. BIJI. R., S/O.PARAMESWARAN,
CHAITHANYA, PARAMBITHARA ROAD, KOCHI-15.
5. K.M. ABOOBACKER HAJI, S/O.MUHAMMED,
KANNANKILAKATH, KOORKANCHERY VILLAGE,
THRISSUR TALUK.
BY ADVS.SRI.T.A.SHAJI
SRI.BYJU KURIAKOSE
SMT.T.V.NEEMA
SMT.RAGAM.S.MOHAN
RESPONDENTS:
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1. STATE OF KERALA, REPRESENTED BY
THE SECRETARY, REVENUE (A) DEPARTMENT,
GOVERNMENT OF KRALA, SECRETARIAT,
THIRUVANANTHAPURAM.
2. THE DISTRICT COLLECTOR,
ERNAKULAM, CIVIL STATION, KAKKANAD.
3. THE TAHSILDAR, KANAYANNUR, ERNAKULAM.
4. THE VILLAGE OFFICER,
CHERANALLOOR, ERNAKULAM DISTRICT.
BY SR. GOVERNMENT PLEADER SRI.P.FAZIL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 1475 of 2007 (A)
APPENDIX
PETITIONERS' EXHIBITS:
EXT.P1: TRUE COPY OF THE DOCUMENT NO.329/1993 OF ERNAKULAM SRO.
EXT.P2: TRUE COPY OF THE DOCUMENT NO.2460/1978 OF ERNAKULAM SRO.
EXT.P3: TRUE COPY OF THE DOCUMENT NO.2539/2006 OF ERNAKULAM SRO.
EXT.P4: TRUE COPY OF THE APPLICATION DATED 30.6.2005 SUBMITTED BY THE
PETITIONERS BEFORE THE HON'BLE MINISTER FOR REVENUE.
EXT.P5: TRUE COPY OF THE LETTER DATED 12.9.2005 ISSUED BY THE 2ND
RESPONDENT ADDRESSED TO THE GOVERNMENT.
EXT.P6: TRUE COPY OF THE REPORT DATED 29.7.2005 SUBMITTED BY THE 4TH
RESPONDENT.
EXT.P7: TRUE COPY OF THE JUDGMENT DATED 23.2.2006 IN W.P.(C)
NO31412/2005 OF THIS HON'BLE COURT.
EXT.P8: TRUE COPY OF THE G.O.(Rt)No.4083/06/REVENUE DATED 7.10.2006
ISSUED BY THE GOVERNMENT.
EXT.P9: TRUE COPY OF THE JUDGMENT DATED 13.1.1997 IN O.P.NO.16077/96
OF THIS HON'BLE COURT.
// TRUE COPY //
TKS
P.S. TO JUDGE
C.T.RAVIKUMAR, J.
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W.P.(C)No.1475 of 2007
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Dated 10th June, 2016
JUDGMENT
The captioned writ petition has been filed feeling aggrieved by Ext.P8 order and seeking the following reliefs:-
"i. issue a writ of certiorari quashing the original of Ext.P8;
ii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to assign 3.24 acres of land in Survey No.985 of Cheranalloor village, Kanayanoor Taluk in favour of the petitioners;
iii. declare that the application for assignment of the land comprised in Survey No.985 of Cheranalloor Village, Kanayannoor Taluk having an extent of 3.24 acres is to be considered and allowed untrammeled by the directions in Ext.P9 judgment;
iv. issue such other writ, order or direction as this Hon'ble Court deems fit to be granted in the circumstances of the case including cost of the petitioner."
Petitioners 1 to 4 claim that they have been in possession and enjoyment of an extent of 3.24 acres of land comprised in Survey No.985 of Cheranelloor Village of Kanayanoor Taluk. It is their very precise contention that they obtained the property as per Ext.P1 sale WP(C).No.1475/2007 2 deed No.329/1993 of Ernakulam Sub Registry. According to them, they purchased the same from one Antony, S/o.Kaluveettil Antony and since then, they have been using the property for prawn cultivation. They have effected valuable improvements thereon and then, sold the same to the 5th petitioner as per Ext.P3 Document No.2539/2006 of Ernakulam Sub Registrar Office, it is further contended. At the same time, in the writ petition it is very specifically stated, rather, admitted that going by the revenue records the property is still shown as puzha puramboke. It is further stated thus:-
"The encroachment of the properties by the petitioner's predecessor in interest as well as the continued possession by the subsequent assignees is unobjectionable as per the provisions of the Kerala Land Assignment Rules. The petitioners are therefore, entitled to get the said land assigned in their favour by virtue of the provisions of the Kerala Land Assignment Rules."
I will deal with the said contentions in the writ petition a little later, if it is necessary to do so for the purpose of disposal of this case. Earlier, petitioners 1 to 4 filed an application for assignment of the aforementioned land. Aggrieved by the delay in the matter of its consideration they approached this Court by filing W.P.(C)No.31412 of 2005. The said writ petition was disposed of by Ext.P7 judgment with a WP(C).No.1475/2007 3 direction to the Government to consider and pass appropriate orders on the application. It is in its purported compliance that the Government have passed Ext.P8 order. As noticed hereinbefore, it is feeling aggrieved by the said order that the captioned writ petition has been filed.
2. I have heard the learned Senior Counsel Sri.T.A.Shaji for the petitioners and also the learned Government Pleader.
3. The core contention of the petitioners is that Ext.P8 cannot be sustained for the simple reason that despite the direction in Ext.P7 the application was not properly considered and a bare perusal of Ext.P8 would reveal that the request of the petitioners for assignment of the aforementioned land has been rejected solely on the basis of Ext.P9 judgment rendered by this Court in O.P.No.16077 of 1996. The learned Senior Counsel contended that taking into account the fact that this Court as per Ext.P7 directed the Government to consider the application submitted by the petitioners for assignment of the aforementioned extent of land the existence of Ext.P9 judgment by itself cannot be a reason for non-consideration of that application on merits. In short, it is contended that the rejection of the application solely referring to Ext.P9 WP(C).No.1475/2007 4 judgment is unsustainable. It is further submitted that no provision or any other reason has been referred to in the order to reject the application. In short, according to the learned Senior Counsel Ext.P8 was passed without any application of mind. It appears that the application has been rejected treating the land in question as one encroached upon. It is the contention that the petitioners have actually sought for assignment of the land which has been in their possession for the past 40 years or thereabouts.
4. A counter affidavit has been filed by the first respondent in this writ petition. A perusal of the pleadings in the counter affidavit would reveal that they were raised to support and justify the findings in Ext.P8 order. In paragraph 4 therein it is stated that land assigned to landless and other weaker sections are Government Tharisu land only and puzha puramboke, road puramboke, kayal puramboke, thodu puramboke etc. are not assignable lands. It is further stated therein that the aforementioned categories of lands are neither assignable nor leasable. Further it is stated therein that the request for assignment of puzha puramboke if entertained would result in serious ecological problems including degradation of the water body and such lands are public property to be preserved for the entire society for preserving WP(C).No.1475/2007 5 environmental and ecological integrity. In paragraph 5 therein it is stated that as per the provisions of land assignment rules maximum `tharisu land' permitted to be assigned to landless and weaker sections is only 15 cents for residential purpose and 50 cents for agricultural purpose. In paragraph 5 it is further stated that the petitioners are not eligible for assignment, particularly, the 5th petitioner who is a resident of Thrissur District. Yet another contention has been taken in paragraph 6 to the effect that pleadings in the writ petition itself would reveal that petitioners 1 to 4 have already sold the property sought to be assigned in their favour in the year 2006 itself. Hence, they got no legal right to file this writ petition. Raising such contentions the respondents seek for the dismissal of the writ petition.
5. Firstly, I will consider the question whether the petitioners are justified in taking up the contention that Ext.P8 is unsustainable for the reason that besides the reason of existence of Ext.P9 judgment no other legal provisions or reasons have been referred to for rejecting their application for assignment. Learned Senior Counsel contended that Ext.P9 cannot be said to be a binding authority and it is only a judgment in persona. True that, a judgment may be said to be a binding authority only if the same is rendered relying on any provision of law or based on WP(C).No.1475/2007 6 any previous binding authority on that subject. But, at the same time, a careful scanning of Ext.P9 judgment would reveal that this Court only held that an encroachment upon the river puramboke irrespective of the fact that whoever is the encroacher, has to be summarily evicted. In other words, this Court under Ext.P9 judgment after finding that the petitioners therein are not entitled to seek for a direction for assignment of the land in question as it was a puzha puramboke going by the resurvey records made a further observation that any encroachment upon river puramboke has to be summarily evicted. No provision has been brought to my attention which empower the Government or any other authority to assign a puzha puramboke. In that context, I am of the considered view that the respondents are perfectly justified in taking up the contention that assignment of puzha puramboke would result in serious ecological problems including degradation of water bodies and such lands are public property to be preserved for the entire society for preserving environmental and ecological integrity. As noticed hereinbefore, in the counter affidavit the respondents have stated that going by the provisions of Land Assignment Rules the maximum Tharisu land permitted to be assigned to landless and weaker sections is only 15 cents for residential purpose and 50 cents for agricultural purpose. Having regard to such contentions raised in the counter affidavit and WP(C).No.1475/2007 7 pleadings taken up by the petitioners in the writ petition I am of the view that it will not be inapposite to refer to or look into the purpose for which the Kerala Land Assignment Rules have been enacted. Rule (4) of the said Rules deals with the purposes for which land may be assigned. It reads that `Government lands may be assigned on registry for purposes of personal cultivation, house-sites and beneficial enjoyment of adjourning registered holdings". Rules 5 and 6 deal with the extent of Government land which can be assigned for the specified purposes thereunder. True that a scanning of the various provisions under the Kerala Land Assignment Rules would reveal that they contain the outer limit of the land which can be assigned for the purposes specifically mentioned therein. But, in this case, the request of the petitioners is for assignment of 3.24 acres of land comprised in Survey No.985 of Cheranalloor Village.
6. I will now deal with the contentions of the learned Senior Counsel appearing for the petitioners to the effect that while passing Ext.P8 order the respondents are under the view that the land in question is an encroached land. It is contended that going by the request made in the application by petitioners 1 to 4 it is evident that they were in possession of the said property and their predecessor in WP(C).No.1475/2007 8 interest were in possession of the property for about 40 years and it is in the said circumstances that they sought for assignment of the aforesaid extent of land. But, at the same time, this Court cannot ignore the pleadings of the petitioners in the writ petition itself. The statement in the writ petition itself would reveal that the predecessor-in-interest had actually encroached upon the land. Ext.P3 would reveal such a fact. Be that as it may, the question is, being persons who are in possession and enjoyment, whether the petitioners can seek for assignment of the land under the Kerala Land Assignment Rules ? There can be no doubt that merely because one is in possession and enjoyment of a vast extent of land he cannot, as a matter of right, claim for assignment of the entire extent under the Kerala Land Assignment Rules simply because the outer limit for assignment is specifically mentioned in Kerala Land Assignment Rules. The learned Government Pleader brought to my notice that such assignment is impermissible in view of Rule 4 of the Assignment of Land within Municipal and Corporation Areas Rules, 1995. At any rate, no specific provision has been brought to my notice which enable this Court to issue a direction to consider assignment of 3.24 acres of land under the provisions of Kerala Land Assignment Rules. In the counter affidavit yet another contention has also been taken up. It is stated that from the very pleadings of the petitioners itself it is evident that they have sold WP(C).No.1475/2007 9 out the property as back in 2006 itself and therefore, according to the learned Government Pleader, there can be no question of considering the assignment of land which they have sold out under the provisions of Rules at their instance. The 5th petitioner evidently purchased the aforementioned land from petitioners 1 to 4. No doubt, merely because he purchased the said land from petitioners 1 to 4 he cannot claim any better right than that of petitioners 1 to 4 over the aforesaid property. I do not think that in the light of the order which I propose to pass in this writ petition I should probe into those aspects any further. They may be facts relevant for the purpose of considering the issue on merits.
7. With reference to the observation made by this Court in Ext.P9 judgment that respondents 1 to 3 shall see that river puramboke is not encroached upon by anybody I am of the view that the sad observation was made with a view to preserve the environment for the generations. These are days where encroachment upon the banks of river are on the high and rivers became lean and lean. In such circumstances, I do not see any reason to hold that the said observation rather, direction of this Court is out of place and it indeed, is a matter which shall be followed seriously and zealously, by the authorities. Reverting back to the prayers of the petitioners in this case, I am of the WP(C).No.1475/2007 10 view that in the light of the earlier direction of this Court in Ext.P7 though the petitioners are not legally bound to consider the question whether the entire land could be assigned under the Land Land Assignment Rules, 1964 the question whether any extent could be assigned in favour of petitioners 1 to 4 shall be considered strictly in accordance with law, to honour the directions of this Court in Ext.P7 judgment. In such circumstances, this writ petition is disposed of with a direction to the first respondent to consider the application submitted by the petitioners to the aforesaid extent. It is made clear that this direction shall not taken as a direction to the respondents to consider the assignment of the entire extent sought for, under the Kerala Land Assignment Rules, 1964. Needless to say that, imbibing the spirit of the observation, referred hereinbefore, in Ext.P9 judgment even the question of assignment of any extent, shall depend upon the question whether the land is river puramboke and the question whether any extent is assignable will, necessarily depend upon the answer to that question. True that in Ext.P8 order it is stated that the property in question is puzha puramboke. Whether the entire extent mentioned is puzha puramboke or whether any part of the land is assignable is not specifically mentioned in Ext.P8. It will also be open to the authorities to consider the locus standi of the petitioners to seek for such assignment, WP(C).No.1475/2007 11 in accordance with law. To enable such, consideration, as aforesaid, Ext.P8 is set aside. Based on the decision thereof, appropriate follow up steps shall be taken expeditiously. There will be no order as to costs.
The writ petition is disposed of accordingly.
Sd/-
C.T.RAVIKUMAR Judge TKS