Kerala High Court
Vagamon Resorts And Homestay Owners vs State Of Kerala on 22 January, 2021
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942
W.P.(C)No.20781 OF 2020(W)
PETITIONERS:
1 VAGAMON RESORTS AND HOMESTAY OWNERS
ASSOCIATION
OWNERS ASSOCIATION HAVING REGISTRATION
NO.IDK/TC/264/2019 - REP.BY ITS PRESIDENT
MR.THAUFEEQUE M., S/O.M.A.IBRAHIM, AGED 39,
MANKUZHACKAL (H), NADACKAL P.O., ERATTUPETTA,
PIN-686 121
2 THAUFEEQUE M.
S/O.M.A.IBRAHIM, AGED 39, MANKUZHACKAL (H),
NADACKAL P.O., ERATTUPETTA, PIN-686 121
3 BIJU ALIAS
AGED 47 YEARS
S/O.ALIAS, KIZHAKKEKKARA (H), PAINGOTTOOR
P.O., PIN-686 671
4 SATHEESH KUMAR M.D.
AGED 49 YEARS
S/O.DIVAKARAN NAIR, METTINPURATH (H),
ETTUMANOOR P.O., PIN-686 631
5 P.G.MURALIDHARAN NAIR
AGED 50 YEARS
S/O.GOPALAN NAIR, PALAKKATTU (H), KOTHANALLOOR
P.O., KOTTAYAM DISTRICT
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SRI.VINOD RAVINDRANATH
SMT.MEENA.A.
SRI.K.C.KIRAN
SMT.M.R.MINI
SRI.M.DEVESH
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W.P.(C)No.20781 OF 2020(W)
SRI.ASHWIN SATHYANATH
SHRI.ANISH ANTONY ANATHAZHATH
SHRI.THAREEQ ANVER
RESPONDENTS:
1 STATE OF KERALA
REP.BY ITS SECRETARY, DEPARTMENT OF REVENUE,
THIRUVANANTHAPURAM, PIN-695 001
* 2 THE THAHASILDAR
PEERUMED TALUK, IDUKKI DISTRICT, PIN-685 531
IS SUO MOTU CORRECTED AS
THE TAHSILDAR (LR), PEERUMED TALUK, IDUKKI
DISTRICT, PIN - 685 531
3 THE VILLAGE OFFICER
VAGAMON VILLAGE, IDUKKI DISTRICT, PIN-685 503
R BY SR.GP - SMT. AMMINIKUTTY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.01.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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W.P.(C)No.20781 OF 2020(W)
JUDGMENT
The 1 st petitioner is an association of Resorts and Homestay Owners' at Vagamon with registration No.IDK/ TC/264/2019. Petitioners 2 to 5 are stated to be the members of the 1st petitioner association, who own properties comprised in old Sy.No.724 of Vagamon Village, covered by Exts.P1 to P1(f) sale deeds. Going by the averments in the writ petition, based on the proceedings of the Special Tahsildar (Land Assignment), Peermade, with respect to the properties lying in old Sy.No.724, patta was issued to various land holders after complying with the procedures laid down in in the Kerala Land Assignment Rules, 1964 and the predecessors in interest of petitioners 2 to 5 were issued with Ext.P2 patta bearing No.492/92 dated 03.03.1994 and Ext.P2(a) patta bearing No.LA583/92 dated 03.03.1994 under sub-rule (2) of Rule 9 of the said Rules. Ext.P2 patta is in respect of 2.90 Acres of land in Sy.No.724 of Peermade Village. Ext.P2(a) patta is in respect of 3.30 Acres of land in Sy.No.724 of Peermade Village. The documents marked as Exts.P3 to P3(c) are the land tax receipts in respect of their respective holdings. In the -4- W.P.(C)No.20781 OF 2020(W) writ petition it is stated that the petitioners have reliable information that the respondents are taking hasty steps to initiate proceedings for cancellation of patta in respect of the properties lying in old Sy.No.724 of Vagamon Village without affording an opportunity of hearing to the present title holders.
2. The petitioners have filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 2nd respondent Tahsildar, Peermade, to issue notice to the 1 st petitioner association and its members before taking any decision as to cancellation of patta with respect to the properties covered under old Sy.No.724 of Vagamon Village, Peermade Taluk in Idukki District. The petitioners have also sought for a writ of mandamus commanding the 2nd respondent to afford them an opportunity of hearing and consider their contentions before taking a decision with respect to the properties covered under old Sy.No.724 of Vagamon Village, Peermade Taluk in Idukki District.
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3. On 06.10.2020, when this writ petition came up for admission, the learned Government Pleader was directed to get instructions. On 15.01.2021, the learned counsel for the petitioners sought adjournment to verify whether the court fee paid in this writ petition is sufficient, in view of the law laid down by the Division Bench of this Court in Maradu Market Traders Association v. State of Kerala and others [2018 (3) KHC 530]. On 19.01.2021, the learned counsel for the petitioners submitted that steps are being taken to pay the deficit court fee. Thereafter, the petitioners have paid the deficit court fee and filed I.A.No.1 of 2021 producing therewith a list of members of the 1 st petitioner association, with the name and address of 44 persons.
6. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader appearing for the respondents.
7. One of the reliefs sought for in this writ petition is a writ of mandamus commanding the 2nd respondent Tahsildar, Peermade, to issue notice to the 1 st petitioner association and -6- W.P.(C)No.20781 OF 2020(W) its members before taking any decision as to cancellation of patta with respect to the properties covered under old Sy.No.724 of Vagamon Village, Peermade Taluk in Idukki District. The 1st petitioner is a registered association of Resorts and Homestay Owners' at Vagamon and petitioners 2 to 5 are stated to be the members of the 1st petitioner association, who own properties comprised in old Sy.No.724 of Vagamon Village, covered by Exts.P1 to P1(f) sale deeds.
8. In Maradu Market Traders Association [2018 (3) KHC 530] a registered association of traders in Maradu Market filed writ petition seeking police protection for and on behalf of 138 traders included in Ext.P18 list, who are members of that association, against the alleged atrocities perpetrated by respondents 5 and 6 and their men causing obstruction to the loading and unloading work done by the own workers of the traders. The Division Bench noticed that, what is held in Mathew v. Edathua Panchayat [1988 (2) KLT 329] is that when the petition is not concerned with a matter of public interest, but of individual interest of the -7- W.P.(C)No.20781 OF 2020(W) assessees, who happen to be members of the association, each assessee is entitled to approach the Court under Article 226 of the Constitution of India and therefore, an association could not have filed a petition for and on behalf of several persons who are all interested equally, and the affected parties could have filed petition only on payment of requisite court fee. Mathew did not speak on the court fees payable at all. Kerala Electric Trades Association, Kochi v. State of Kerala [2010 (1) KHC 248] noticed the declaration in Mathew regarding an association not being entitled to approach the Court, when its members individually, have no disability by agitating their cause. Kerala Electric Trades Association, in fact, permitted an association to file a writ petition for the common cause of its members; but required them to pay court fees individually. The amendment made to Schedule II, Article 11(l)(iii), of the Kerala Court Fees and Suits Valuation Act, 1959, with effect from 26.10.2002, by which the phrase "hundred rupees per petitioner" was introduced, instead of "twenty rupees" is of no consequence in -8- W.P.(C)No.20781 OF 2020(W) cases where the association files on behalf of its members and the benefit inures to each and every one of its members. After quoting Rule 147A of the Rules of the High Court of Kerala, 1971 the Division Bench held that, when the petitioner has admitted that the association is seeking remedy for 138 traders who are named in Ext.P18, all of them are interested persons, who could have filed separate writ petitions under Article 226 of the Constitution of India for police protection. The decision in Somanathan v. State of Kerala [2003 (3) KLT 1148] is not applicable here as the petitioners therein had filed a stay petition, which, the Division Bench of this Court held would fall under the residuary Article 11(t) of Schedule II of the Act requiring payment of only Rs.10/-; quite unlike an original petition filed jointly. Therefore, the Division Bench directed the petitioner association to pay court fee at the rate of Rs.100/- per person as required under Schedule II, Article 11(l)(iii) of the Kerala Court Fee and Suit Valuation Act.
9. On 20.01.2021, the petitioners have paid the -9- W.P.(C)No.20781 OF 2020(W) additional court fee and filed I.A.No.1 of 2021 producing therewith Ext.P4 list of members of the 1 st petitioner association, with the name and address of 44 persons. The membership number or the details of the registered holding of the members of the 1st petitioner association, other than petitioners 2 to 5, in old Sy.No.724 of Vagamon Village, are not disclosed either in the writ petition or in the affidavit filed in support of I.A.No.1 of 2021. Ext.P4 list of members is not in the letter head of the 1st petitioner association and it does not bear the signature and seal of the Secretary of the 1 st petitioner association.
10. In Bharat Singh v. State of Haryana [(1988) 4 SCC 534] the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ -10- W.P.(C)No.20781 OF 2020(W) petition or to the counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.
11. In Narmada Bachao Andolan v. State of Madhya Pradesh [(2011) 7 SCC 639] a Three-Judge Bench of the Apex Court held that, it is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings are not complete the Court is under no obligation to entertain the pleas. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to -11- W.P.(C)No.20781 OF 2020(W) inform the parties concerned to the question(s) in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that as a rule relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice.
12. As already noticed, the membership number or the details of the registered holding of the members of the 1 st petitioner association, other than petitioners 2 to 5, in old Sy.No.724 of Vagamon Village, are not disclosed either in the writ petition or in the affidavit filed in support of I.A.No.1 of -12- W.P.(C)No.20781 OF 2020(W) 2021. The relief sought for in this writ petition, in so far as it relates to the members of the 1st petitioner association, other than petitioners 2 to 5, is not supported by pleadings and materials on record, which cannot be entertained under Article 226 of the Constitution of India, in view of the law laid down in the decisions referred to supra.
13. The Kerala Land Assignment Act, 1960 is enacted to provide for the assignment of Government land. Section 3 of the Act deals with assignment of Government land and Section 4 deals with the procedure to be followed before Government lands are assigned. Section 5 deals with order of assignment.
14. In exercise of the powers under Section 7 of the Kerala Land Assignment Act and in supersession of Rules for assignment of Government lands, issued under notifications I and II G.O(P).No.1029/Rev. dated 18.10.1958 published in the Kerala Gazette Extra Ordinary No.107, the Government of Kerala made the Kerala Land Assignment Rules, 1964 for assignment of Government lands.
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15. Rule 4 of the Kerala Land Assignment Rules deals with purposes for which land may be assigned. As per Rule 4, Government lands may be assigned on registry for purposes of personal cultivation, house-sites and beneficial enjoyment of adjoining registered holdings. Rule 5 deals with maximum limit to be assigned for cultivation.
16. Rule 8 deals with conditions of assignment on registry. Sub-rule (1) of Rule 8 substituted by SRO 477/69 dated 21.11.1969 in Kerala Gazette Ex.No.281 dated 22.11.1969 provides that lands granted on registry shall be heritable and alienable. Sub-rule (1A) of Rule 8 inserted by SRO 284/71 dated 03.08.1971 in Kerala Gazette Ex.No.346 dated 06.08.1971 provides that, notwithstanding anything contained in sub-rule (1), unoccupied lands assigned on registry shall not be alienable for a period of three years from the date of registry. As per the proviso to sub-rule (1A), the assignee may mortgage such lands (a) to the Government or Co-operative Institutions or the Tea Board or the Rubber Board or any other financial institution recognised by the -14- W.P.(C)No.20781 OF 2020(W) Government in this behalf, as security for obtaining loans for agricultural or land improvement purposes or for growing tea or rubber, and (b) to the Government or Cooperative Institutions as security for obtaining loans for house construction under the Village Housing Project Scheme or any other housing schemes sponsored by the Government, if such house is required for the occupation of the assignee or his family.
17. As per sub-rule (2) of Rule 8, the assignee or a member of his family or his successor-in-interest shall reside in the land if it is granted as house site, or shall personally cultivate the same if it is granted for cultivation; and such residence or cultivation, as the case may be, shall commence effectively within a period of one year, from the date of receipt of the patta or of the provisional patta in cases where a provisional patta is issued in the first instance.
18. As per sub-rule (3) of Rule 8, the registry shall be liable to be cancelled for contravention of the provisions in sub-rule (1) or sub-rule (2) and the registry may also be -15- W.P.(C)No.20781 OF 2020(W) cancelled, if it 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 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.
19. As per the first proviso to sub-rule (3) of Rule 8, no registry of land shall be cancelled without giving the party or parties affected thereby, a reasonable opportunity of being heard. As per the second proviso to sub-rule (3) of Rule 8, no assignment of land shall be cancelled if the annual family income of the transferee occupant does not exceed Rs. 10,000/- and who does not own or possess any landed property, anywhere in the State. As per the third proviso to sub-rule (3) of Rule 8, in the case of a transfer of land -16- W.P.(C)No.20781 OF 2020(W) covered by the above proviso the assignee shall not be eligible for further assignment of land anywhere in the State.
20. In Varkey Abraham v. Secretary to Government, Revenue Department [2007 (3) KHC 365] a Division Bench of this Court held that, the provisions in the Kerala Government Land Assignment Act and the Kerala Land Assignment Rules would unmistakably show that the Act and Rules are intended to protect landless people by assigning to them Government lands for cultivation and other purposes. The Act provides for assignment of Government land absolutely or subject to such restrictions, limitations and conditions as may be prescribed. The Rules provides for assignment of lands on registry for purposes of personal cultivation. The Rules also provides for granting assignment of small extents of land for constructing houses and for the beneficial enjoyment of adjoining registered holdings. The Act and Rules are not intended for enriching persons who hold extensive lands. Assignment on Registry of Government lands to such persons would defeat the very purpose of the Act and -17- W.P.(C)No.20781 OF 2020(W) Rules. There is no vested right in any person to claim assignment on registry of Government land.
21. The learned counsel for the petitioners would submit that the 1st petitioner association and its members are entitled to notice before any decision is taken for cancellation of patta with respect to the properties in old Sy.No.724 of Vagamon Village, Peermade Taluk in Idukki District.
22. The learned Senior Government Pleader would submit that, till date, no proceedings have been initiated for the cancellation of patta in respect of the respective holdings of petitioners 2 to 5, covered by Exts.P1 to P1(f) sale deeds.
23. As per the first proviso to sub-rule (3) of Rule 8, no registry of land shall be cancelled without giving the party or parties affected thereby, a reasonable opportunity of being heard. The party or parties affected by cancellation of registry are the pattadar and the registered holder of the land at the time of initiation of proceedings for cancellation of registry. The 1st petitioner association, not being the pattadar or registered holder of the land, in any proceedings initiated for -18- W.P.(C)No.20781 OF 2020(W) cancellation of registry, is not entitled for notice in such proceedings, before taking any decision as to cancellation of registry. Since no proceedings are initiated, till date, for cancellation of patta in respect of the respective holdings of petitioners 2 to 5, covered by Exts.P1 to P1(f) sale deeds, they have no cause of action to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India.
The writ petition fails on the above grounds and the same is accordingly dismissed. No order as to costs.
Sd/-
ANIL K.NARENDRAN, JUDGE AV/23/01 -19- W.P.(C)No.20781 OF 2020(W) APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF SALE DEED NO.127 OF 2016 DT.14.1.2016 OF PEERUMADE SUB REGISTRY OFFICE IN FAVOUR OF THE 2ND PETITIONER EXHIBIT P1 (A) TRUE COPY OF SALE DEED NO.857 OF 2018 DT.20.3.2018 OF PEERUMADE SUB REGISTRY OFFICE IN FAVOUR OF THE 3RD PETITIONER EXHIBIT P1 (B) TRUE COPY OF SALE DEED NO.1638 OF 2015 DT.3.7.2015 OF PEERUMADE SUB REGISTRY OFFICE IN FAVOUR OF THE 4TH PETITIONER EXHIBIT P1 (C) TRUE COPY OF SALE DEED NO.1780 OF 2016 DT.7.7.2016 OF PEERUMADE SUB REGISTRY OFFICE IN FAVOUR OF THE 4TH PETITIONER EXHIBIT P1 (D) TRUE COPY OF SALE DEED NO.1825 OF 2015 DT.27.7.2015 OF PEERUMADE SUB REGISTRY OFFICE IN FAVOUR OF THE 5TH PETITIONER EXHIBIT P1 (E) TRUE COPY OF SALE DEED NO.3054 OF 2015 DT.23.12.2015 OF PEERUMADE SUB REGISTRY OFFICE IN FAVOUR OF THE 5TH PETITIONER EXHIBIT P1 (F) TRUE COPY OF SALE DEED NO.1781 OF 2016 DT.7.7.2016 OF PEERUMADE SUB REGISTRY OFFICE IN FAVOUR OF THE 5TH PETITIONER EXHIBIT P2 TRUE COPY OF THE PATTA NO492/92 DT.3.3.94 ISSUED UNDER RULE 9(2) OF KERALA LAND ASSIGNMENT RULES, 1964 EXHIBIT P2 (A) TRUE COPY OF THE PATTA NO.LA 583/92 DT.3.3.94 ISSUED UNDER RULE 9(2) OF KERALA LAND ASSIGNMENT RULES, 1964 EXHIBIT P3 TRUE COPY OF TAX RECEIPT NO.R 1675467 DT. 15.10.2019 ISSUED IN FAVOUR OF 2ND PETITIONER -20- W.P.(C)No.20781 OF 2020(W) EXHIBIT P3 (A) TRUE COPY OF TAX RECEIPT NO.R 1588666 DT. 2.6.2020 ISSUED IN FAVOUR OF 3RD PETITIONER EXHIBIT P3 (B) TRUE COPY OF TAX RECEIPT NO.R 1666823 DT. 29.7.2019 ISSUED IN FAVOUR OF 4TH PETITIONER EXHIBIT P3 (C) TRUE COPY OF TAX RECEIPT NO.R 1515286 DT. 11.9.2019 ISSUED IN FAVOUR OF 5TH PETITIONER EXHIBIT P4 TRUE COPY OF THE LIST OF MEMBERS ENROLLED WITH THE 1ST PETITIONER ASSOCIATION