Kerala High Court
T.K.Soman vs State Of Kerala on 10 August, 2011
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19122 of 2011(M)
1. T.K.SOMAN, AGED 71 YEARS,
... Petitioner
2. KAMALAMMA, AGED 61 YEARS,
Vs
1. STATE OF KERALA, REP.BY THE
... Respondent
2. LAND REVENUE COMMISSIONER,
3. DISTRICT COLLECTOR, KASARAGOD-671121.
4. REVENUE DIVISIONAL OFFICER,
5. TAHSILDAR, KASARAGOD TALUK,
For Petitioner :SRI.T.P.KELU NAMBIAR (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :10/08/2011
O R D E R
ANTONY DOMINIC, J.
================
W.P.(C) NO. 19122 OF 2011
=====================
Dated this the 10th day of August, 2011
J U D G M E N T
Petitioners are husband and wife. First petitioner was serving in the Indian Army from 1962 till 1979, when he retired on superannuation. It is stated that, being an ex-army man, in terms of the provisions contained in the Kerala Land Assignment Act and the Rules made thereunder, the first petitioner applied for assignment of land on registry. Though the application which was made in 1976 was allowed, possession of the land was not given to him.
2. It is stated that the application was renewed by him in 2007, on the basis of which, assignment was granted in 2009, which also did not take effect. Still later, he again renewed his original application of 1976 and that by order dated 4/6/2010, assignment was granted by the 5th respondent Tahsildar and the order of assignment contained the name of the second petitioner also.
3. According to the petitioners, they obtained possession of the land and were enjoying the same. While so, without any WPC No. 19122/2011 :2 : notice or giving them any opportunity to make their representations in the matter, the Government issued Ext.P1 order dated 7/6/2011 cancelling the assignment order dated 4/6/2010 and ordering a vigilance enquiry. It is this order, which is under challenge in this writ petition.
4. The only contention raised in this writ petition is that Ext.P1 order is in violation of Rule 8(3) of the Kerala Land Assignment Rules which mandates that notice shall be given before cancellation of assignment on registry. On this basis, petitioners seek a writ of certiorari quashing Ext.P1 Government order.
5. A statement has been filed by the 1st respondent, wherein various grounds on which the assignment in favour of the petitioners has been found irregular, have been detailed. However, in the light of the only contention raised in the writ petition that the order is vitiated for non compliance of Rule 8(3) of the Kerala Land Assignment Rules, I do not think it necessary or proper for this Court to deal with those contentions. Suffice it to state that in the statement, respondents do not have a case that, before Ext.P1 order was passed cancelling the order of WPC No. 19122/2011 :3 : assignment, they had complied with the requirements of Rule 8(3) of the Rules.
6. A reply affidavit has been filed by the petitioners where the contentions in the writ petition have been reiterated.
7. I heard the learned senior counsel appearing for the petitioners and also the learned Government Pleader appearing for the respondents. During the submissions made, the learned senior counsel contended that in view of the violation of Rule 8(3) of the Rules, Ext.P1 order is illegal, and therefore, is liable to be quashed. On the other hand, learned Government Pleader sought to justify Ext.P1 on merits relying on the facts pleaded in the statement filed by the respondents.
8. I have considered the submissions made by both sides.
9. Ext.P1 is the order under challenge. After narrating various reasons which led to the issuance of Ext.P1, it is stated by the Government that in the light of the aforesaid facts, Government have reconsidered the proceedings leading to the assignment of land in favour of the petitioners and issued the following order:-
() WPC No. 19122/2011 :4 : . . .
( ) .. .111/5,111/2
2.33 4.6.2010 .
.51/x/08/
.
( )
: 25
16.2.2011
( .5861)
.
( )
. . .
( ) .. .111/5, 111/2
2.33 4.6.2010 ..51/
x/08/
25
.
10. Thus the order contains three parts viz, (1) that it cancels the order of assignment, (2) the cabinet decision of 16/2/2011 (No.5861) is cancelled and (3) the circumstances which led to the order of assignment and the decision exempting the assignee from the provision restraining alienation of the land assigned for 25 years will be enquired by the Vigilance and Anti WPC No. 19122/2011 :5 : Corruption Bureau.
11. As already stated, though the writ petition contains a prayer for quashing Ext.P1 order in its entirety, pleadings in this writ petition are only with regard to the cancellation of the order of assignment for violation of Rule 8(3) of the Kerala Land Assignment Rules. In other words, there is no specific challenge against the decision of the Government to cancell the cabinet decision of 16/2/2011 or regarding the legality of the decision to order vigilance enquiry. Therefore, in the absence of any challenge, this Court is not called upon to examine the legality of the aforesaid two decisions contained in Ext.P1 Government Order.
12. Rule 8(3) and its first proviso are relevant while considering this case of the petitioners and therefore, are extracted below for reference.
"(3) The registry shall be liable to be cancelled for contravention of the provisions in [sub-rule (1A) or sub-rule(2)]. The registry may be cancelled also, if it is found that it was grossly inequitable or was made under a mistake of facts or owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure. In the event of cancellation of the registry the assignee shall not be entitled to compensation for any WPC No. 19122/2011 :6 : improvements he may have made on the land. The authority competent to order such cancellation shall be the authority which granted the registry, or one superior to it:
Provided that no registry of land shall be cancelled without giving the party or parties affected thereby, a reasonable opportunity of being heard:
(emphasis supplied)
13. A reading of the aforesaid provision shows that if the circumstances provided in Rule 8(3) are available, assignment on registry is liable for cancellation. However, such cancellation can be only in the manner provided in the proviso to the Rule, which mandates that, no registry of land shall be cancelled without giving the party or parties affected thereby, a reasonable opportunity of being heard.
14. It is trite that if a statute requires something to be done in a particular manner, it shall be done in that manner alone.
Here the proviso to the rule lays down the manner in which the power under Rule 8(3) is to be exercised. This requires that the affected parties shall be given a reasonable opportunity of being heard. Admittedly, in this case, Ext.P1 order was passed without complying with the mandatory requirement of giving a reasonable opportunity of being heard to the petitioners. In that view of the WPC No. 19122/2011 :7 : matter, cancellation of assignment ordered by Ext.P1, cannot be sustained.
15. Though this Court cannot therefore approve the order of cancellation for violation of the proviso to Rule 8(3), that does not in any manner affect the right of the respondents to proceed against the petitioners under Rule 8(3) of the Rules. Therefore, I direct that Ext.P1 to the extent it cancels the order of assignment in favour of the petitioners will be treated as a notice issued to them by the 1st respondent and it will be open to the petitioners to file their objection to the proposal for cancellation of the assignment. Such objection shall be filed by them within 4 weeks from today. After the expiry of 4 weeks, the 1st respondent will issue notice to the petitioners, afford them a reasonable opportunity of hearing as required under the proviso to Rule 8(3) of the Rules and pass fresh orders in the matter.
16. Needless to say that since Ext.P1 order, to the extent it cancels the assignment is directed to be treated as a notice, respondents shall not take any further action against the petitioners on the basis of Ext.P1. It is clarified that this judgment will not affect the cancellation of the cabinet decision of WPC No. 19122/2011 :8 : 16/2/2011 and the enquiry by the Vigilance and Anti Corruption Bureau.
Writ petition is disposed of with the above directions.
ANTONY DOMINIC, JUDGE Rp