Kerala High Court
N.D. Antony vs State Of Kerala on 1 November, 2016
Author: A.M. Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 1ST DAY OF NOVEMBER 2016/10TH KARTHIKA, 1938
WP(C).No. 23038 of 2009 (Y)
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PETITIONER(S):
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N.D. ANTONY, AGED 66 YEARS,
S/O. DOMINIC, JEJO NEST, THEVAKKAL,
V.K.C. P.O., KOCHI-21.
BY ADV. SRI.N.C.JOSEPH
RESPONDENT(S):
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1. STATE OF KERALA, REP. BY
SECRETARY, TO THE GOVERNMENT,
REVENUE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM -33.
2. THE COMMISSIONER OF LAND REVENUE
PUBLIC OFFICE BUILDING, MUSEUMS JUNCTION,
THIRUVANANTHAPURAM -33.
3. THE DISTRICT COLLECTOR, ERNAKULAM,
KOCHI-33.
4. THE TAHSILDAR, TALUK OFFICE,
KOCHI, KOCHI-1.
BY SENIOR GOVERNMENT PLEADER SRI.C.P.PRADEEP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 29-09-2016 THE COURT ON 01-11-2016, DELIVERED THE
FOLLOWING:
msv/
WP(C).No. 23038 of 2009 (Y)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 COPY OF LEASE ORDER BEARING NO.1000/1968 ISSUED BY THE
4TH RESPONDENT TO THE PETITIONER.
EXHIBIT P2 COPY OF APPLICATION FOR ASSIGNMENT DTD.28.2.1974.
EXHIBIT P3 COPY OF PATTA NO.L.A.783/74 DTD.12.12.1985 ISSUED BY
THE 4TH RESPONDENT.
EXHIBIT P4 COPY OF LETTER/REPORT NO.B8-(SP.CR.PE.18/91) 34884/91
DTD.28.10.93 OF THE VIGILANCE DEPARTMENT ADDRESSED TO
THE COMMISSIONER & SECRETARY, VIGILANCE DEPARTMENT.
EXHIBIT P5 COPY OF LETTER NO.7680/A3/93/RD DTD.14.2.1994 ISSUED
FROM 2ND RESPONDENT TO THE 3RD RESPONDENT.
EXHIBIT P6 COPY OF ORDER NO.L1-127258/88 DTD.25.3.1999 CANCELLING
PATTA BY THE 3RD RESPONDENT.
EXHIBIT P7 COPY OF JUDGMENT DTD.16.8.1999 IN OP.NO.19931/99 W OF
THE HON'BLE HIGH COURT OF KERALA.
EXHIBIT P8 COPY OF PROCEEDINGS/ORDER NO.L1.12258/88 DTD.23.5.2000
OF 3RD RESPONDENT.
EXHIBIT P9 COPY OF LIST OF ASSIGNABLE LANDS IN ELAMKUNNAPUZHA
VILLAGE NOW PUTHUVYPPU VILLAGE AS ON 1.11.1970 SIGNED
BY 3RD RESPONDENT.
EXHIBIT P10 COPY OF LIST OF GOVERNMENT EMPLOYEES WHO GOT
ASSIGNMENT OF GOVERNMENT LAND IN ELAMKUNNAPUZHA AND
NEIGHBOURING VILLAGE.
EXHIBIT P10(a) COPY OF ELIGIBILITY RULE OF BOARD OF REVENUE, TVM.
DTD.3.3.1996.
EXHIBIT P11 COPY OF ORDER NO.LR.J3-27326/2000/D.DIS DTD.9.9.2005
OF LAND REVENUE COMMISSIONER, TRIVANDRUM.
EXHIBIT P12 COPY OF ORDER REVIEWING DTD.13.11.2007 NO.2474/2006
OF THE HON'BLE HIGH COURT OF KERALA.
EXHIBIT P13 COPY OF ORDER NO.LR J3-60009/07 22.1.2009 OF
COMMISSIONER OF LAND REVENUE.
RESPONDENT(S)' EXHIBITS:
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NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
A.M. SHAFFIQUE, J.
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W.P. (C) No. 23038 of 2009
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Dated this, the 1st day of November, 2016
J U D G M E N T
This writ petition is filed challenging Ext.P13 order by which the Land Revenue Commissioner had confirmed an order passed by the District Collector cancelling the patta issued in favour of the petitioner.
2. The short facts involved in the writ petition would disclose that the petitioner claimed to be in possession of 20 Ares of waterlogged area in Sy.No.1659/1 of Puthuvyppu Village by virtue of an order of lease bearing No.1000/1968. It is contended that the petitioner's father was cultivating the said land from 1968 onwards for several years. In the meantime, petitioner got employment as L.D.Clerk in the Revenue Department of Government of Kerala. While so, the petitioner applied for assignment of the said land on 28/2/1974. Ext.P2 is the application for assignment. After conducting necessary enquiry in the matter, the 4th respondent, the Tahsildar, issued patta bearing No.LA 783/74 dated 12/12/1985 thereby assigning the said property in favour of the petitioner. Ext.P3 W.P(C) No.23038/09 -:2:- is the patta.
3. It is contended that long after issuance of the patta, while the petitioner was working as Tahsildar at Malappuram, an enquiry came to be conducted on the allegation that the petitioner had fraudulently obtained assignment of land. The Vigilance found that there was no illegality in the matter. However, it seems that the Government had sent a letter dated 14/2/1994 to the District Collector (Ext.P5) with reference to the investigation conducted by the vigilance wherein there was a proposal for cancellation of the assignment order No.LA.783/74. Pursuant to the same, the patta has been cancelled as per Ext.P6 order dated 25/3/1999. The petitioner filed OP No.19931/1999 challenging Ext.P6 order. The same was allowed quashing Ext.P6 and the District Collector was directed to hear the petitioner before passing a final order in the matter. Thereafter the matter was heard and the District Collector cancelled the patta in terms of Ext.P8 order dated 23/5/2000. Petitioner preferred an appeal before the Land Revenue Commissioner which was disposed of by Ext.P11 confirming the order of the District Collector. A further revision was filed before the Government which came to be W.P(C) No.23038/09 -:3:- rejected. Hence, WP(C) No. 2474/2006 was filed. The petitioner was directed to file a revision before the Land Revenue Commissioner and Ext.P13 is the order dated 22/1/2009 by which the order passed by the District Collector was again confirmed.
4. While impugning the aforesaid orders, the main contention urged by the petitioner is that merely for the reason that he was a Government servant does not preclude him from seeking for assignment of Government land if the conditions were satisfied. Petitioner was granted lease of land as early as in the year 1968 and it was cultivated since then by the petitioner's father. Thereafter, when similarly situated land was being assigned to the land holders in the locality, petitioner also applied for the same which was allowed and Ext.P3 patta has been issued. It is submitted that there is no infirmity or irregularity in the procedure adopted and the contrary finding by the District Collector that the land was not assignable is totally incorrect. It is stated that around 1000 acres of adjoining land was assigned in a similar manner and petitioner alone is singled out and the assignment is cancelled. It is contended that the finding by the District Collector that the petitioner was not eligible for W.P(C) No.23038/09 -:4:- assignment at concessional rate and the assignment was not done as per the rules and based on misrepresented facts are absolutely incorrect. All the factual materials were available with the assigning authority at the relevant time and the cancellation of the patta wherein the petitioner was cultivating for quite a long time is absolutely baseless.
5. Counter affidavit has been filed by the 4th respondent wherein it is stated that the assignment was not in order as per the Land Assignment Rules, 1964. The assignment was cancelled by the District Collector on specific grounds which cannot be assailed by the petitioner. All the authorities have come to a conclusion that the assignment was clearly illegal. As far as the lease of the year 1968 is concerned, it was a temporary lease for a period of one year granted on 28/2/1974. Further, there was no publication that the aforesaid land was available for assignment and the land was part of the assignable land. That apart, petitioner's wife Smt.Treesa was in possession of 13.925 cents of land in Sy.No.614/2D in Aluva East Village which was reported by the Village Officer on 6/1/1993. Therefore, the petitioner was not eligible for assignment and the pattayam was cancelled in W.P(C) No.23038/09 -:5:- accordance with law. It is further stated that there was a list of assignable lands in Elankunnapuzha Village (presently Puthuvype Village) and after following the rules, pattayam has been issued to 45 persons. However the petitioner's name is not included in the list and therefore he was not entitled to get the pattayam.
6. Heard the learned counsel for the petitioner and the learned Government Pleader appearing on behalf of the respondents.
7. The short question to be considered in the present writ petition is whether the cancellation of patta, Ext.P3, by the District Collector in terms of Ext.P6 order and confirmation of the same by the Land Revenue Commissioner is legally sustainable or not.
8. The following were the grounds mentioned in the notice issued to the petitioner before cancellation of the patta.
"1. The Land was assigned to Sri.N.D.Antony while he was Revenue Inspector and therefore the assignment was due to the irregular influence exerted by him and therefore irregular.
2. Sri.N.D.Antony was not eligible for assignment at concessional rates.
3. The assignment was not done as per rules. W.P(C) No.23038/09 -:6:-
4. The assignment was done based on misrepresentation of facts and therefore malafide."
9. Even before the notice being issued, an enquiry was conducted by the Vigilance Department, the report of which is produced as Ext.P4. As per Clause 4 of the report, the Deputy Superintendent of Police and Superintendent of Police also recommended to cancel LA No. 783/1974 and the patta issued on 12/12/1985 in respect of the aforesaid land. However, based on an opinion given by the Legal Advisor, it was thought that the cancellation of the patta may not be proper. But it is relevant to note that Ext.P4 is only a report which was submitted to the Government. However, the Government felt that proceedings had to be taken for cancellation of the patta and they have issued Ext.P5 to the District Collector on 14/2/1994 to take steps for cancellation of the patta. The District Collector had taken steps under Rule 8(3) of the Kerala Land Assignment Rules (hereinafter referred to as the KLA Rules), which reads as under:-
"8(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 W.P(C) No.23038/09 -:7:- 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 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:
Provided further that no assignment of Land shall be cancelled if the annual family income of the transferee occupant does not exceed Rs.10,000 (Rupees ten thousand only) and who does not own or possess any landed property, anywhere in the State:
Provided also that in the case of a transfer of Land covered by the above proviso the assignee shall not be eligible for further assignment of Land anywhere in the State."
10. The short question is whether the grounds taken by the District Collector warrants cancellation of the patta. There is no dispute about the fact that the above land was leased out to the petitioner from 1968. In Ext.P8 order passed by the District Collector, it was observed that though the annual family income W.P(C) No.23038/09 -:8:- of the petitioner exceeded the limit of `1500/-, his family was not in possession of any land at the time of assignment. It is further observed that the assignee did not remit the dues in time and the assignment orders became invalid. As per the order of assignment, he should have remitted the dues within three months. Further the land in question was not assignable as per Rule 11(1) of the Kerala Land Assignment Rules. Notice under Rule 12(1) was not issued. Notice was published in the Panchayat office on 24/8/1882 only when it was noticed by the Supervising Officer in the Taluk Office that the procedure for assignment of land had not been fully observed. It is also observed that the order of assignment is not properly authenticated by the Assigning Authority and the date of issue is not seen in the order of assignment. As against Ext.P8 order, a revision was filed which resulted in Ext.P13 order wherein the above infirmities were highlighted and in addition to that it was observed that the petitioner's wife was in possession of 5.64 ares of land in Aluva Village. The question to be considered is whether the assignment aforesaid can be cancelled in terms of Rule 8(3) of the KLA Rules. The power under Rule 8(3) can be invoked only on account of the W.P(C) No.23038/09 -:9:- following reasons:-
(i) Contravention of the provisions in sub rule (1A) or sub-
rule (2) of Rule 8 which is not applicable in the present case.
(ii) If it is found that the registry was grossly inequitable or was made under a mistake of facts owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authority.
11. Now let us see whether there is any procedural infirmity. The main reason for the District Collector to have cancelled the patta is that there is non compliance of the procedural requirements especially on account of the fact that the petitioner was an officer of the Revenue. It is disclosed in Ext.P6 order that petitioner filed an application for assignment on 28/2/1974 showing his annual income as `4068/-. It is further stated that the petitioner had sought for issuance of patta only on 26/6/1982. The report indicates that the petitioner had remitted certain amounts. According to the District Collector, reason for delaying the petition for patta is suspicious. However, the Village Officer, Elamkunnapuzha filed a report within three days and the Supervising Officer in the Taluk Office made a noting in the Taluk W.P(C) No.23038/09 -:10:- file on 17/8/1982 stating that the procedure for assignment of land has not been fully observed. It is mentioned that only thereafter, on 25/8/1982, notice under Rule 12(1) was published which according to the District Collector evidences that the assignment order was passed illegally and not in accordance with the procedure prescribed by law. Further, it is observed that there is no evidence that this land is included in the list of assignable lands in terms of Rule 11. That apart, no evidence is available to show that the petitioner is entitled for priority of assignment at concessional rate especially since in his application he admits that his family income is `4068/-. In fact, during the relevant time, the priority in assignment on registry at concessional rate was available to persons whose family income was less than `3000/-. The Land Revenue Commissioner also confirmed the view expressed by the District Collector. A perusal of the rules which were prevalent during the relevant time does not show any substantial difference. The question to be considered is whether the assignment can be cancelled under any of the provisions coming under Rule 8(3). The main contention urged by the Revenue is that the pattayam that has been issued W.P(C) No.23038/09 -:11:- is illegal and without following the procedural requirements. The power vested with the competent authority to cancel the patta is very wide. In the case on hand, it is observed that this land was not part of the list of assignable land prepared in terms of Rule 11 and the procedure prescribed under Rule 12(1) has not been properly complied with. That apart, it is observed that the petitioner being an officer of revenue and as his income was above `3000/- (during the relevant time), he was not entitled for priority of assignment.
12. In fact, the petitioner's right to get assignment comes under Rule 7(1) at the time of assignment, which reads as under:-
"7(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 shall be assigned to him on registry.
Provided that the total extent of land, if any, owned or held by him in proprietory right or which 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 lands held by him is below Rs.3000/-."
By an amendment as per SRO 284/1971 dated 3/8/1971, the W.P(C) No.23038/09 -:12:- following words had been incorporated under Rule 7(1) after the word objectionable "such land if such occupation is before the 1st day of August, 1971, shall be assigned to him on registry". It is therefore apparent that considering the annual income of the petitioner during the relevant time, he was not entitled for any priority for assignment. That apart, when there is clear finding by the District Collector that the land involved was not an assignable land and the procedure prescribed under Rules 11 and 12 had not been complied with, I do not find any reason to interfere with the impugned orders in the absence of any contrary material.
13. Learned counsel for the petitioner however would submit that the petitioner and his predecessor were in occupation of the premises for a substantially long period. But when Government land is being assigned, it has to be assigned after following the procedure prescribed under the Rules. If the prescribed procedure is not followed, it becomes an assignment which can be cancelled in terms of Rule 8(3). That apart, this is an instance where the petitioner himself was an officer of Revenue and for assignment of land to such persons, the compliance of the Rules ought to be strictly followed and cannot W.P(C) No.23038/09 -:13:- be waived.
14. Under such circumstances, I do not think that there is any reason warranting interference to the orders impugned.
Writ petition is, therefore, dismissed.
Sd/-
A.M. SHAFFIQUE, JUDGE Rp //True Copy// P.S to Judge