Kerala High Court
Clifford Crasta vs State Of Kerala on 11 February, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941
WA.No.185 OF 2020
AGAINST THE JUDGMENT DATED02/12/2019 IN WP(C) 12060/2019(F) OF
HIGH COURT OF KERALA
APPELLANT/PETITIONER:
CLIFFORD CRASTA, AGED 59 YEARS,
S/O. LOUIS CRASTA, VOLASURI HOUSE, ANANGOOR,
VIDYANAGAR P.O., KASARGOD DISTRICT.
BY ADVS.
SRI.SURESH KUMAR KODOTH
SRI.K.P.ANTONY BINU
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 DISTRICT COLLECTOR, KASARGOD,
VIDYANAGAR P.O., KASARGOD-671 123.
3 TAHSILDAR(LA),
TALUK OFFICE, KASARGOD-671 12.
4 VILLAGE OFFICER, KASARGOD VILLAGE OFFICE,
KASARGOD-671 122.
BY SRI.TEK CHAND, SENIOR GOVT.PLEADER(B/O)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
11.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.185 OF 2020 2
JUDGMENT
Dated this the 11th day of February, 2020 S.Manikumar, CJ.
Instant writ appeal is filed against judgment dated 02/12/2019 in W.P.(C) No.12060 of 2019, by which writ court dismissed the writ petition holding that petitioner cannot possess any right under the Kerala Land Assignment Act and the Rules framed thereunder for claiming assignment of certain extent of land. Relevant portion of the said judgment is extracted hereunder.
"On a consideration of the facts and circumstances of the case and the submissions made across the Bar and taking note of the definite stand of the Government in the statement filed on behalf of the 2nd respondent, I am of the view that the petitioner cannot be said to possess any right under the Kerala Land Assignment Act and Rules for claiming an assignment of 50 cents of land within the municipal area of Kasaragod. Even if it is a fact that the petitioner's late father had a right to assignment of the said extent of land, so long as there was no right that accrued to the late father, during his life time, the petitioner cannot claim the benefit of any heritable right while pursuing the claim for assignment of 50 cents of land within Kasaragod municipal area. I also take note of the specific averments in the statement that the wife of the petitioner possesses 10 cents of land in Manjeswar Taluk where the petitioner is residing at present. It is also stated that an extent of 3.35 acres of land in Nekraje Village in W.A.No.185 OF 2020 3 Kasaragod Taluk is owned by the father-in-law of the petitioner. The aforesaid facts, over and above the fact that the extent of 50 cents of land is claimed by way of assignment in the municipal limits of Kasaragod, in my view, disentitles the petitioner to a claim for land by way of assignment. I am of the view that the relief sought for by the petitioner cannot be granted."
2. Short facts leading to the appeal are that, writ petitioner/ appellant has been in possession and residential occupation of 0.50 Acres of Government land comprised in R.S. No.261/1-L of Kasaragod Kasba village. His predecessors, including father, had been in residential occupation of the land from 1955 onwards. Since the possession was continued by his wife and children, including the petitioner, application was submitted for assignment before the competent authority under the Government. According to the petitioner, the fact that the application of his father was not considered or no orders of assignment were issued in favour of his late father, is not disputed.
3. After the death of his father, petitioner took up the matter with the revenue authorities for the purpose of assignment of land, which, he claims to be in continued occupation even after the death of his father. Revenue authorities rejected the application primarily because the extent of land was, far in excess of what could be assigned in terms of the Assignment of Land with Municipal and Corporation Area Rules, 1995. The W.A.No.185 OF 2020 4 application submitted by the petitioner before the Government also met with disapproval for the reason that State Government required the land for public purpose, as it was lying in the municipal area and within 500 metres from the National Highway.
4. Aggrieved by the refusal of the respondents to assign the land in favour of the petitioner/appellant, instant writ petition has been filed seeking for the following reliefs:
(i) Issue a writ of mandamus or any other appropriate writ directing respondents to grant assignment of land in R.S. No.261 of Kasaragod Village, to the petitioner as sought for in Exhibit-P1 application for assignment within a time limit;
(ii) Issue writ of certiorari or any other to call for relevant records and quash the decision contained in Exhibits-P6 and P7 communications;
(iii) Issue a declaration that petitioner is entitled to get assignment of land measuring 0.50 acre in R.S. No.261 of Kasaragod Village in accordance with the provisions of the Kerala Land Assignment Act, 1960 and the Kerala Land Assignment Rules, 1964;"
5. Before the writ court, District Collector, Kasaragod, has filed a statement contending as follows:-
"3. On enquiry it was revealed that the disputed land is situated at Anangoor and is just 500 meters away from National Highway between Kasaragod town and Kasaragod Civil Station. The said land is within Kasaragod Municipal area. The market rate of the W.A.No.185 OF 2020 5 land is Rs.1,00,000/- per cent and fair land value is Rs.1,10,000/- per Are. The land has road accessibility on both sides. A tiled unoccupied house was found in the land.
4. On further enquiry it was revealed that the petitioner is running a hardware shop and is earning an annual income of Rs.60,000/-. Moreover, the wife of the petitioner is working as a Clerk in Chengala Panchayath Womens Multi Industrial Co- Operative Society and having an annual income of Rs.1,03,200/- and that the total family income comes to Rs.1,63,200/- per annum. Wife of the petitioner possess 0.10 acre of land in RS.No.128/2pt of Kunjathur Village in Manjeswar Taluk, where the petitioner is residing at present. It was also found that an extent of 3.35 Acres of land in RS.No.374/pt of Nekraje Village in Kasaragod Taluk absolute is in ownership possession of Sri.Dennis Rodrigue, who is the father in law of the petitioner.
5. A detailed enquiry report on application of the petitioner for assignment on market rate was submitted to the Government. The Government rejected the application for assignment of the petitioner on the ground that the proposed land is in Kasaragod Municipal area limit and is situated at just 500 meters away from National Highway between Kasaragod town and Kasaragod Civil Station and the land is very much required for implementing the Government projects in future and also the annual family income of the petitioner exceeds the limit prescribed for the eligibility for land assignment in Municipal area limit. Therefore, in view of the aforesaid rejection order, the District Collector has directed the Tahsildar, Kasaragod to initiate KLC proceedings against the petitioner. The Tahsildar Kasaragod WP(C).No.12060 OF 2019(F) 4 has evicted 0.50 acres W.A.No.185 OF 2020 6 of Government land in RS.No.261/11 of Kasaragod village in Kasargod Taluk encroached by the petitioner on 22.09.2017 and has installed Government Board in the said land."
6. After considering the rival contentions and the materials on record, writ court, by the impugned judgment, dismissed the writ petition, as extracted above.
7. Being aggrieved, instant appeal is filed on the following grounds:
A) Writ court, having noticed the fact that the land remained in occupation of the petitioner, and the occupation had been commenced even prior to 1967, when residential house was put up with the permission of Kasargod Municipality, ought to have found that the claim for assignment is statutorily recognized, by virtue of Rule 7 of the Kerala Land Assignment Rules,1964, which provides that the occupation not considered objectionable commenced before 1.8.1971, the date notified under Rule 7, to acquire eligibility for assignment.
B) Writ court ought to have found that right to get assignment on registry vested in the occupant by virtue of Rule 7 of the Kerala Land Assignment Rules is a legal right available to the occupant, which necessarily includes the legal representatives.
C) Writ court ought to have noticed that the entitlement of writ petitioner deserves to be adjudged as on the date of commencement of the Rules, in view of the prescription under Rule 7; as such the subsequent developments such as annual income of the family and enactment of the Assignment of Land within Municipal and Corporation Areas Rules 1995, have no bearing on the issue.W.A.No.185 OF 2020 7
D) Writ court ought to have found that the occupation of land held by the writ petitioner was not interrupted by the respondents in a legal manner, and the possession allegedly taken over by the Tahsildar suggests arbitrariness to be termed as such on the face of it.
8. On the above grounds, learned counsel for the appellant made submissions. According to the learned counsel, Rule 7 of the Kerala Land Assignment Rules, 1964 recognizes the entitlement of the occupant for assignment, if there is occupation before 1.8.1971.
9. Heard learned counsel for the parties and perused the material available on record.
10. In exercise of the powers conferred by Section 7 of the Kerala Land Assignment Act, 1960 (Act 30 of 1960) and in superssession of the rules for assignment of Government lands issued under notifications 1 and II G.O.(Press) No.1029/Rev. dated 18/10/1958 published in the Kerala Gazette Extra Ordinary No.107 as subsequently amended, Government of Kerala have framed the Kerala Land Assignment Rules, 1964. Rule 7 of the Land Assignment Rules is extracted hereunder:
"7. Priority to be observed in assignment.-(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 if such occupation is before the 1st day of August, 1971 shall be assigned to him on registry:W.A.No.185 OF 2020 8
Provided that the total extend of land, if any, owned or held by him in proprietary right or with 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 land held by him is below Rs.1,00,000:
Provided further that, In the case of any land set apart for assignment on registry to the members of Scheduled Caste/Scheduled Tribe and subsequently encroached upon by those persons who are landless and eligible for assignment of land under these Rules, such land may be assigned to such encroachers, only after setting apart equal extent of other suitable unoccupied area for the members of Scheduled Caste/Scheduled Tribe Community:
Provided also that, in the case of landless Scheduled Caste and Scheduled Tribe families income limit mentioned in the first proviso shall not be applicable.
(2) In the case of unoccupied lands, the following order of preference shall be observed in granting registry:-
(i) First preference.- for persons who do not own or hold any land either in proprietary right or with security of tenure and whose annual family income does not exceed Rs.1,00,000:
Provided that in assigning lands under this clause ten per cent of the area shall be assigned to Ex-servicemen and not less than twenty five per cent of the area shall be assigned to the members of the Scheduled Castes and Scheduled Tribes subject to availability of applicants.
Explanation:-For the purpose of this clause, a Kudikidappukaran or the holder of a Kudiyirippu shall be deemed to be a person who does not own or hold any land;W.A.No.185 OF 2020 9
(ii) Second preference:- for person who do not own or hold any land either in proprietary right or with security of tenure who are disabled while in active military service or who are dependent of those who are killed or disabled while in active military service;
(iii) Third preference.- for small holders who have not been able to resume their lands due to expiry of the time for applying for resumption and whose annual family income does not exceed Rs. 30,000.
Explanation:-For the purpose of this clause, "small holder" means a small holder as defined in the Kerala Land Reforms Act, 1963 (1 of 1964);
(iv) Fourth preference.- for serving military personnel with an approved service of not less than three years and who are decorated for gallantry or their dependents who do not own or hold any land either in proprietary right or with security of tenure;
Provided that in the absence of applications from such military personnel as aforesaid, the applications of other serving Military personnel with an approved service of not less than 10 years, and who do not own or hold any land either in propriety right or with security of tenure shall be considered.
(v) Fifth Preference.- for persons whose annual family income does not exceed Rs.30,000 and the total extent of the land owned or held by them either in proprietary right or with security of tenure is less than the extent prescribed in these rules.
(3) No registry shall be granted to any family in occupation of Government land either under a lease, current or time expired or by way of encroachment, unless it surrenders to Government, W.A.No.185 OF 2020 10 without claiming any compensation, the land in excess of the extent proposed to be registered in its favour. If there is excess land, in its possession and if is not willing to surrender the excess land eviction will be resorted to."
11. Perusal of the statement shows that State Government was of the view that the disputed land is situated about 500 metres away from National Highway and Kasaragod Civil Station; the land has road accessibility on both sides and is required for implementing Government projects in future; and the annual income of the appellant exceeds the limit prescribed for eligibility for land assignment in municipal area.
12. Though Mr. Suresh Kumar Kodoth, learned counsel for the appellant, submitted that the appellant's father was in possession of the subject property for a long tenure and thereafter, the appellant continued to be in possession, the same is refuted by Mr. Tek Chand, learned Senior Government Pleader, who submitted that the appellant is staying in a different place. It is further submitted that the building in the subject property was dilapidated and possession has been taken by Tahsildar (LA), Kasaragod (respondent No.3).
13. Though the learned counsel for the appellant has contended that appellant is entitled for assignment for the reason that his father was in continued possession of the subject property, we cannot agree with the said contention because his father had not pursued his right for W.A.No.185 OF 2020 11 assignment. That apart, the subject property is within 500 metres from the main road of the municipal limit and required for the Municipality.
Application for assignment of land submitted by the appellant has been considered by the Tahsildar (LA), Kasaragod, in accordance with the provisions of the Kerala Land Assignment Rules, 1964 and the rejection thereof cannot be said to be illegal or arbitrary. Writ court has properly considered the case of the appellant/petitioner and dismissed the writ petition. There are no merits in this appeal, warranting interference of the judgment impugned. Hence, writ appeal is dismissed. No costs.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE Krj.21/1 W.A.No.185 OF 2020 12 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF APPLICATION FOR ASSIGNMENT SUBMITTED BEFORE THE TAHASILDAR.
EXHIBIT P2 TRUE COPY OF AFFIDAVIT WA SWORN BY THE PETITIONER ON 28.01.2011.
EXHIBIT P3 TRUE COPY OF REPORT DATED 25.09.2008 OF THE 4TH RESPONDENT.
EXHIBIT P3A TRUE COPY OF SKETCH PREPARED BY 4TH RESPONDENT DATED 25.09.2008.
EXHIBIT P4 TRUE COPY OF LETTER DATED 17.01.2009 FORWARDED BY THIRD RESPONDENT.
EXHIBIT P5 TRUE COPY OF LETTER DATED 18.05.2009 ISSUED BY 2ND RESPONDENT ALONG WITH ENGLISH TRANSLATION.
EXHIBIT P6 TRUE COPY OF LETTER DATED 14.02.2017 ISSUED BY THE FIRST RESPONDENT.
EXHIBIT P7 TRUE COPY OF REPLY DATED 15.02.2018 FROM THE DISTRICT COLLECTOR'S REDRESSAL ADALATH 2017.
EXHIBIT P8 TRUE COPY OF REPRESENTATION DATED 08.11.2018 WITH ENDORSEMENT.
EXHIBIT P9 TRUE COPY OF REPRESENTATION DATED 14.01.2019.
EXHIBIT P10 TRUE COPY OF MEDICAL CERTIFICATE DATED 15.11.2002 ISSUED BY SHIRDI SAI BABA HOSPITAL, MANIPAL.
//TRUE COPY// P..A TO JUDGE