Kerala High Court
M. Assiyinar [Expired] vs The District Collector on 6 January, 2025
WP(C)NO.8586/2013 1
2025:KER:39
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
WP(C) NO.8586 OF 2013
PETITIONERS:
1 M. ASSIYINAR : [EXPIRED]
AGED 80 YEARS
S/O.BEEFATHIMMA, RESIDING AT MANGAD,
BARE VILLAGE, P.O.UDMA, KASARGODE DISTRICT.
2 ADDL.P2. AYSHABI
AGED 65 YEARS, W/O.M.ASSIYINAR,
RESIDING AT MANGAD, BARE VILLAGE, UDUMA (P.O),
KASARAGOD DISTRICT, PIN 671 319
3 ADDL.P3. BEEBI.M.
AGED 52 YEARS, D/O M.ASSIYINAR,
RESIDING AT CHERUMBA HOUSE,
PERIYATTADUKKAM, PANAYAL (P.O),
KASARAGOD DISTRICT, PIN 671318
4 ADDL.P4. MOHAMMED KUNHI M.H
AGED 51 YEARS, S/O M.ASSIYINAR,
RESIDING AT MANGAD, BARE VILLAGE,
UDUMA (P.O), KASARAGOD DISTRICT, PIN 671 319
5 ADDL.P5. MAHIN M.H
AGED 50 YEARS, S/O M. ASSIYINAR,
RESIDING AT MANGAD, BARE VILLAGE, UDUMA (P.O),
KASARAGOD DISTRICT, PIN 671 319
6 ADDL.P6. KHADEEJA M.H
AGED 45 YEARS, D/O M. ASSIYINAR,
RESIDING AT MEETHAL MANGAD,
BARE VILLAGE, UDUMA (P.O),
KASARAGOD DISTRICT, PIN 671 319
WP(C)NO.8586/2013 2
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7 ADDL.P7. LAILA HAMZA
AGED 44 YEARS, D/O M. ASSIYINAR,
RESIDING AT SAGAR HOUSE, BEVINJA, CHENGALA
VILLAGE, THEKKIL FERRY (P.O),
KASARAGOD DISTRICT, PIN - 671541
8 ADDL.P8. IBRAHIM M.H
AGED 43 YEARS, S/O M.ASSIYINAR,
RESIDING AT MANGAD, BARE VILLAGE, UDUMA (P.O),
KASARAGOD DISTRICT, PIN 671 319
9 ADDL.P9. NOORJAHAN M.H
AGED 42 YEARS, D/O M.ASSIYINAR,
RESIDING AT BAITHUL NOOR, CHITHARI (P.O),
KASARAGOD DISTRICT, PIN 671 316
10 ADDL.P10. HASEENA M.H
AGED 41 YEARS, D/O.M.ASSIYINAR,
RESIDING AT KARAYIL HOUSE, POKKANAMOOLA,
KEEKAN (P.O), KASARAGOD DISTRICT, PIN 671 316
11 ADDL.P11. AL AMEEN M.H
AGED 35 YEARS, S/O M.ASSIYINAR,
RESIDING AT MANGAD, BARE VILLAGE, UDUMA (P.O),
KASARAGOD DISTRICT, PIN 671 319
[ADDL.P2 TO P11 ARE IMPLEADED AS PER ORDER DATED
01.10.2024 IN I.A.NO.1/2024 IN WP(C) 8586/2013].
BY ADV.JAWAHAR JOSE
RESPONDENTS:
1 THE DISTRICT COLLECTOR
CIVIL STATION, P.O.VIDYANAGAR,
KASARGODE DISTRICT, PIN-671123.
2 THE REVENUE DIVISIONAL OFFICER (SUB COLLECTOR)
P.O.KANHANGAD, KASARGODE DISTRICT, PIN-671315.
3 THE SPECIAL TAHASILDAR (LAND ASSIGNMENT)
TALUK OFFICE, P.O.KANHANGAD,
KASARGODE DISTRICT, PIN-671315.
WP(C)NO.8586/2013 3
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4 THE VILLAGE OFFICER
BARE P.O., KASARAGOD DISTRICT, PIN-671319.
BY ADV.SRI.BINOY DAVIS, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 06.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C)NO.8586/2013 4
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JUDGMENT
Dated this the 06th day of January, 2025 This Writ Petition has been filed seeking the following reliefs :
"(i) issue a writ in the nature of mandamus directing the respondents to assign an extent 25 cents of property in Resurvey Numbers 58, 60 and 215/3 of Bare Village to the petitioner as per the provisions of Kerala Land Assignment Act ;
(ii) Declare that the petitioner is entitled for the assignment of Government land, having an extent of 25 cents in Resurvey Nos.58, 60 and 215/3 of Bare Village ;
(iii) Declare that the respondents cannot evict the petitioners from the property possessing by them having an extent of 21 cents in Resurvey Nos.58, 60 and 215/3 of Bare Village ;
(iv) Grant such reliefs as the Hon'ble Court deem fit and proper in the circumstances of the case."
2. During pendency of this Writ Petition, the petitioner Sri.M.Assiyinar passed away. The present petitioners are the wife and children of late Assiyinar, who got impleaded as petitioners in the Writ Petition.
WP(C)NO.8586/2013 5
2025:KER:39 Brief facts:
3. Late Assiyinar was in possession of a certain extent of land comprised in Resurvey Nos.58, 60 and 215/3 and situated within Bare Village, Kasaragod District. The 1 st respondent had vide Ext.P1 order directed assignment of the said land to late Assiyinar. The said order was rendered in revision setting aside an earlier order of the Sub Collector directing eviction of Sri.Assiyinar from the very same property terming him as an encroacher. The 1 st respondent had while rendering Ext.P1 taken note of the fact that the relevant land had been in the possession of late Assiyinar and his predecessors for a long period of time. Improvements had been made by him thereon by planting coconut trees. Since the encroachment was found non-objectionable the 1 st respondent concluded that the land may be assigned to the encroacher, viz., late Assiyinar after leaving sufficient space for the road margin. Towards the said purpose, the matter was remitted back to the Sub Collector directing to assign the land after providing sufficient space for road margin. Since Ext.P1 order was not complied with or implemented, a Writ Petition No.35371 of 2008 was filed by late WP(C)NO.8586/2013 6 2025:KER:39 Assiyinar before this Court, which was disposed vide Ext.P2 judgment inter alia holding as follows:
"In the light of Ext. P1 Order passed by the District Collector, there cannot be any dispute that the revision has been allowed in favour of the petitioner. In Ext. P1, the district Collector has ordered that the land may be assigned to the encroacher after leaving sufficient space to the road margin. Therefore, what is the extent of land available for assigning to the petitioner is the matter to be considered by the third respondent. As Ext. P1 has become final, the objection that a portion of the land cannot be assigned at all cannot be taken by the respondents as a ground to deny the assignment of the available land.
Therefore, there will be a direction to the respondents to complete the process and finalise the procedure for assignment as ordered in Ext. P1 within a period of four months from the date of receipt of a copy of this judgment, after hearing the petitioner.
The writ petition is disposed of as above. No costs."
4. The petitioners contend that though Ext.P2 judgment was placed before the respondents seeking compliance, assignment of land as directed by this Court has not been carried out. During late Assiyinar's lifetime, two reports, Exts.P3 and P4, were submitted recommending the assignment of 25 cents of land to him after realising the market value. However, the property was not assigned as directed. While so, during January 2013, the 4 th respondent visited the property and directed late Assiyinar to WP(C)NO.8586/2013 7 2025:KER:39 surrender an extent of 21 cents of the impugned land to the Government. Upon inquiry, it was learnt that the 1 st respondent had directed the 3rd respondent to assign only 4 cents of land to the petitioner. Ext.P5 communication dated 19.05.2012 was issued by the 3rd respondent directing the 4th respondent to evict late Assiyinar from 21 cents of land and submit a report. It is at that stage, late Assiyinar filed this Writ Petition seeking the above quoted reliefs.
5. A statement has been filed by the learned Government Pleader on behalf of the respondents. The request for assignment of land has been vehemently objected to therein. It is stated that in view of the nature of land, no extent of it can be assigned at all. As per the revenue records the land comprised in Resurvey Nos.58 and 60 are lying registered as Poramboke LF (Local Fund) Road. Such land is not assignable. A notice under Section 12 of the Kerala Land Conservancy Act, 1957 has also been issued. The road poramboke is required for further development of the road. Hence it cannot be assigned as requested. As regards the land comprised in Resurvey No.215/3B, the same is registered as A.W. Land (Assessed Waste Land) which has been reserved for military personnel. Such land WP(C)NO.8586/2013 8 2025:KER:39 earmarked for military personnel will have to be de-reserved from that category to G.A. (General Assignment) category before any assignment can be made. Further, there is a legal impediment too that prevents assignment as sought. As per Rule 6 (2) of the Kerala Land Assignment Rules, 1964 only 15 cents can be assigned for the beneficial enjoyment of registered holding. Since the land sought to be assigned to the petitioners is beyond 15 cents, the same has to be approved by the Government. Over and above the same, if at all any assignment could be carried out, the same can be done only after realising the present market value of the land. It is contended in the statement that in Ext.P1 order of the District Collector it had not been ordered to assign 25 cents of encroached land to the petitioner. It had only directed to assign land to the petitioners after providing sufficient road margin. Thus the respondents vide the statement filed, submit that the request for assignment of property comprised in Resurvey Nos.58, 60 and 215/3 cannot be entertained and any such assignment would be against the mandates of Kerala Land Assignment Act and Rules. Since the law does not permit the assigning of land which is classified as road poramboke, the relief WP(C)NO.8586/2013 9 2025:KER:39 of assignment sought in the Writ Petition is not maintainable.
6. Heard Sri.Jawahar Jose, learned counsel appearing for the petitioners and Sri.Binoy Davis, learned Government Pleader for the respondents.
Contentions in brief:
7. It is submitted by the learned counsel appearing for the petitioners that the question of encroachment and assignability of land is no more in dispute. Ext.P1 order had considered the aspect of encroachment in detail and had concluded that the encroachment that happened decades back was not objectionable. It had already been found that late Assiyinar was in possession of the property and that beneficial improvements had been made due to his efforts. As regards the assignment, this Court had in Ext.P2 finally concluded that the land had to be assigned to late Assiyinar and a time period for completing the same had been fixed. Hence now to rake up the issue of alleged encroachment and non-assignability is improper and unsustainable. Of the total 25 cents of land, after leaving apart 4 cents for road margin, the petitioner is entitled to an assignment of 21 cents. The objections now seen raised in the statement are being WP(C)NO.8586/2013 10 2025:KER:39 put forth for the first time and were never referred to or mentioned in the two reports Exts.P3 and P4 which had specifically suggested the assignment of land to the petitioners after realising the market value. The 1st respondent, who had issued Ext.P1, is now estopped from taking a contrary stand. Further the objections put forth in the statement and in Ext.P4 are hit by constructive res judicata. As regards the market value to be paid upon assignment, the petitioners cannot be made liable to pay the present market value and would only be liable for the market value prevalent in 1971. As regards the contention that the land sought to be assigned is needed for future public purposes, drawing parallels from the Land Acquisition Act, it is contended that mere proposal for acquiring the property for a public purpose cannot be a ground to reject an application. Reliance is placed on the dictum laid down in Basheer C.K. v. Kozhikode Corporation and others (2021 (3) KHC 578) and that in Saidu P. v. State of Kerala and others (2010 (3) KHC
974). The land sought to be assigned by the petitioners meets the mandates of Rule 2 (cc) and (cd) of the Land Assignment Rules, 1964 concerning 'encroachment not considered objectionable' and WP(C)NO.8586/2013 11 2025:KER:39 land needed for 'beneficial enjoyment'. Exts.P1 and P2 read along with Rule 7 (1) of the 1964 Rules, entitles the petitioners to assignment as sought.
8. Per contra, the learned Government Pleader made submissions in line with the statement filed and vehemently objected to the prayer for assignment. He submitted that the assignment of land as sought by the petitioners is not legally sustainable. The claim for 25 cents or for 21 cents has no basis whatsoever. No specific extent of land has been found fit for assignment. Ext.P1 order does not mention about 25 cents of land. The land sought to be assigned cannot be assigned under law. They are situated in two distinct categories. viz., Poramboke L.F. (Local Fund) Road and A.W. Land (Assessed Waste Land). There cannot be an assignment of such categories of land without prior approval from the Government. Further, a de-reservation would be needed with respect to the land earmarked for military personnel. Reliance is placed on the dictum laid down in Jiji Zacharia v. Commissioner, Land Revenue, Tvm. [2024 (2) KHC 606 (DB)] and Varghese Chacko v. State [1997 KHC 288].
WP(C)NO.8586/2013 12
2025:KER:39 Discussion and finding:
9. Petitioners seek the issuance of a writ of mandamus directing the respondents to assign 25 cents of land as per the provisions of the Kerala Land Assignment Act. They also seek a declaration that they are entitled to assignment of the impugned Government land. Apprehending dispossession of 21 cents of land already in their possession, they seek a declaration against eviction, too.
10. Exts.P1 to P3 prima facie support the contentions put forth by the petitioners. The 1 st respondent had in Ext.P1 dated 31.07.1991 concluded that the impugned land has to be assigned to the petitioners and while remanding the matter to the Sub Collector had specifically directed steps to be taken towards assignment of the relevant land after leaving sufficient road margin. Ext.P1 specifically referred to the impugned land as having 25 cents and hence there cannot be a dispute in the said respect. The only question that could have led to some doubt was regarding the width of the road margin that was directed to be set apart. Subsequently Ext.P2 judgment dated 11.02.2010 rendered by this Court had WP(C)NO.8586/2013 13 2025:KER:39 directed a time-bound assignment of the property covered by Ext.P1. A time period of four months was also specified by this Court. Thereafter, Exts.P3 and P4 reports dated 14.07.2010 and 29.09.2010 respectively had been submitted, which, too, confirmed that the impugned land of 25 cents was fit to be assigned to the petitioners after realising the market value. Notwithstanding the above, the land had not been assigned. The grievance of the petitioners on the said count is valid especially since it has been stated in Ext.P1 that there is no other access to the main road than by passing through the impugned land. Thereafter Ext.P5 note dated 19.05.2012 is seen issued by the Tahsildar to the Village officer calling upon the latter to evict the petitioners from the land except from 4 cents thereof, which is permitted to be retained. Ext.P5 is thus the only document produced that strikes a discordant note to the assignment sought by the petitioners. The said communication does not however make any reference to the judgment and direction of this Court in Ext.P2 nor to the earlier orders and reports directing the assignment of 25 cents of land. Ext.P5 note is thus on its face cryptic and unreasoned. WP(C)NO.8586/2013 14
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11. In the statement that is filed on behalf of the 1 st respondent objections put forth far exceed what is seen stated in Ext.P4 note. Various legal contentions, both factual and legal are seen raised to controvert the request for assignment The relevant property is admittedly situated in three different Re-survey numbers. The said parcels of land have been categorised in the revenue record as Poramboke L.F. (Local Fund) Road and A.W. Land (Assessed Waste Land). The latter category is stated to be reserved for military personnel. The said classification, it is contended, prohibits the assignment of land unless there is a re-classification into the G.A. (General Assignment) category. As regards the land classified as road poramboke, which is said to be lying abutting a public road, it is contended that such land cannot be assigned at all. Assignment is also objected on the ground that the said land would be required for future road development. A further impediment in the form of a statutory restriction prescribed under Rule 6 (2) of the Kerala Land Assignment Rules, 1964 has also been pointed out. The said provision mandates that the extent of land that could be assigned for beneficial enjoyment of a registered holding is limited to WP(C)NO.8586/2013 15 2025:KER:39 15 cents. Since the petitioners are seeking assignment of 25 cents of land for the beneficial enjoyment of their adjoining land, the said legal restriction, it is contended will come into play. Thus the relief sought by the petitioners is vehemently objected to by the respondents based on more than one count, most of which relate to factual aspects concerning the nature, lie and categorisation of the land. It is another aspect that none of these contentions have been sought to be substantiated by records or documents. There is a serious dispute regarding the extent of land entitled to be allotted. The petitioners have claimed assignment of 21 cents of land and have expressed readiness to set apart 4 cents for road development, the 1st respondent, on the other hand, seeks eviction of petitioners from 21 cents permitting them to keep 4 cents. Similarly, regarding the value of the land too, which at this point may be slightly premature to delve upon, there is substantial disagreement. While the petitioners convey readiness to pay market value as of 1971, Ext.P3 report suggests recovering at the prevailing market value.
12. It can thus be seen that the subject matter of the dispute WP(C)NO.8586/2013 16 2025:KER:39 throws up hotly disputed factual questions for resolution. It is trite that this Court cannot invoke its writ jurisdiction to adjudicate 'hotly disputed questions of facts'. It is not for this Court to make a comparative assessment of conflicting reports and decide which one is acceptable. This Court cannot decide on the extent of land to be assigned and the value to be recovered, when the parties are at loggerheads regarding the same. (see the dictum laid down by the Supreme Court in Shubhas Jain vs. Rajeshwari Shivam and others [(2021) 20 SCC 454]. Though vehement objections against the assignment sought have been raised in the statement filed on behalf of the 1st respondent, the contentions therein are not seen supported by any records or documents. There is prima facie merit in the legal contentions put forth by the learned counsel for the petitioners based on Rule 2 (cc) and (cd) of the Land Assignment Rules,1964 concerning 'encroachment not considered objectionable' and land needed for 'beneficial enjoyment'. Exts.P1 and P2 read along with Rule 7 (1) of the 1964 Rules, does indeed point to a prima facie entitlement to assignment as sought. However, it is trite that the assignment of Government land to private persons is to be WP(C)NO.8586/2013 17 2025:KER:39 carried out in accordance with the mandates of law governing the field. This Court in Hidayathulla v. State of Kerala and others [2021 (6) KHC 129] has held that Kerala Government Land Assignment Act, 1960 and the Land Assignment Rules, 1964 provide for assignment of Government land absolutely or subject to such restrictions, limitations and conditions as may be prescribed. The Land Assignment Rules under Rule 6 provides for assignment of lands for the beneficial enjoyment of adjoining registered holdings. Assignment under the Act can thus be made only following the mandates thereof. Though the petitioners have sought for issuance of a writ of mandamus directing to assign land, no formal request or representation is seen preferred by the petitioners to any of the respondents seeking further steps towards assignment in pursuance of Exts. P1 to P4. It is trite that mandamus is to be issued when there is a demand and refusal (see Union of India v. S.B. Vohra (AIR 2004 SC 1402); .R.S. Madireddy and another v. Union of India and others [2024 SCC OnLine SC 965] Conclusion:
13. Taking note of the above as well as the fact that WP(C)NO.8586/2013 18 2025:KER:39 substantial time has elapsed since Ext.P1 order and only sketchy and insufficient details are forthcoming regarding the lie, extent and nature of the property, which by itself are disputed questions of facts, it is deemed fit and proper that the matter be relegated back to the 1st respondent to be decided in accordance with the mandates of law after taking due note of Exts.P1 to P4. The legal entitlement of the petitioners under Rule 6 of the Land Assignment Rules, 1964 must also weigh with the 1st respondent while considering the question of assignment. If any prior approval from the Government is found necessary, the 1st respondent shall take expeditious steps in the said respect.
Thus, the W.P.(C) is disposed of permitting the petitioners to move the 1st respondent with a request to finalise the allotment as per Ext.P1 order as affirmed by Ext.P2 judgment. The 1 st respondent shall upon receipt of such a representation take further steps as directed herein above after affording the petitioners or their representatives an opportunity of being heard. A decision on the matter shall be taken by the 1 st respondent expeditiously, at any rate, within four months of receipt of the representation from the WP(C)NO.8586/2013 19 2025:KER:39 petitioners as mentioned above. Decisions taken thereon shall be communicated to the petitioners in due time. Till such a final decision is taken, the status quo shall be maintained with respect to the property.
W.P.(C) is disposed of as above. No costs.
Sd/-
SYAM KUMAR V.M. JUDGE csl WP(C)NO.8586/2013 20 2025:KER:39 APPENDIX OF WP(C) 8586/2013 PETITIONER'S EXHIBITS EXHIBIT P1: TRUE COPY OF THE ORDER DATED 31-7-1991 PASSED BY THE 1ST RESPONDENT EXHIBIT P2: TRUE COPY OF THE JUDGMENT DATED 11-2-2008 IN WPC 35371 OF 2008.
EXHIBIT P3: TRUE COPY OF THE COMMUNICATION DATED 14-7-2010 SENT BY THE 2ND RESPONDENT TO 1ST RESPONDENT EXHIBIT P4: TRUE COPY OF THE COMMUNICATION DATED 29-9-2010 SENT BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT EXHIBIT P5: TRUE COPY OF THE COMMUNICATION DATED 19-5-2012 SENT BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT