IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24300 of 2007(P)
1. DAYANANDA S. SOMESHWARA,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. DISTRICT COLLECTOR,
3. THE REVENUE DIVISIONAL OFFICER,
4. THE TAHSILDAR,
For Petitioner :SRI.V.V.ASOKAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :02/06/2010
O R D E R
S. Siri Jagan, J.
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W.P(C) No. 24300 of 2007
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Dated this, the 2nd day of June, 2010.
J U D G M E N T
The petitioner is in occupation of certain Government land.
Proceedings have been initiated under the Land Conservancy Act for
evicting him from that land. He lost before the Sub Collector, who
passed Ext. P5 order confirming the order of eviction. The petitioner
filed a revision before the District Collector, in which the District
Collector passed Ext. P6 order, the operative portion of which reads
thus:
“In view of the above facts I feel there is no harm in
assigning the land to the petitioner by collecting market value and
order accordingly. In the result, the revision petitioner is allowed
and order of the Revenue Divisional Officer stands modified to
the above extent. The stay granted is hereby vacated.”
In view of that order, the petitioner seeks assignment of the land for
which purpose he has filed this writ petition seeking the following
reliefs:
“(a) Issue a writ of mandamus or any other appropriate writ,
order or direction, directing respondents 2 and 4 to process and
finalize the steps for assignment of Government land – 21 cents
comprised in R.S.No. 16/2 (16/1 Pt.) to the petitioner as ordered
by Ext. P 6 i.e by fixing the market value payable by the petitioner
for assignment of the subject land as expeditiously as possible and
in any event within a short time being fixed by this Hon’ble Court.
(b) Issue a writ of mandamus or any other appropriate writ,
order or direction, forbearing respondents 2 and 4 from
attempting to dispossess the petitioner from the subject land –
comprised in R.S.No. 16/2 (16/1 Pt.).”
2. A counter affidavit has been filed by respondents 2 and 4 in
which in paragraphs 5 to 8 it is stated thus:
W.P.C. No. 24300/2007. -: 2 :-
“5. It is admitted that notice under the KLC Act was issued
to the petitioner on 10-4-1985 directing him to vacate the
Government land measuring 0.21 acres in R.S. No. 16/2
encroached by him or else he will be summarily evicted from the
land. Actually, the petitioner is occupying the land already leased
out to him by the deputy Commissioner, D.K., Manglore and the
land encroached by him is in the Kerala state. Hence his version
that he has unknowingly constructed well and other things in the
land allotted to him is false. Even after receiving the eviction
order he has not approach the appellate authority that is the
Revenue Divisional Officer with appeal as stipulated in KLC Act
and rules.
6. Instead of approaching the Revenue Divisional Officer ,
on the very same issue the petitioner approached this Honourable
Court in O.P.No. 3983/1985. By the judgment dated 18.3.88 this
honourable Court has directed the petitioner to file appeal under
Section 16 of the KLC Act before the Revenue Divisional Officer
within a period of one month from the date of issue of the
judgment. Accordingly, he filed an appeal before the Revenue
Divisional Officer, Kasaragod and it was disposed by the Revenue
Divisional Officer in proceedings No. D.Dis 10071/89 (KCA.21/88)
dated 15-9-1989 with the observation that the encroached portion
of the land can be leased out to the petitioner temporarily in
consultation with the executive Engineer, National Highway. The
petitioner was directed to file application for lease before the
Tahsildar, Kasaragod. Instead of filing the lease application as per
the direction of the appellate authority, he approached the District
Collector, Kasaragod with a revision petition against the order d.
15-9-1989 of Revenue Divisional Officer, Kasaragod. The District
Collector, Kasaragod finalized the revision petition as per
proceedings No. D.Dis 5375/89/C4 dated 28-11-1990 allowing the
petition. District Collector observed that there is no harm in
assigning the land in question to the petitioner by collecting
market value. But the assignment proposal as per the above order
has not been finalized due to the objection raised by the PWD
authorities. Since the land is registered as Local Fund Road
Puramboke, consent of the PWD authority is essential in this case.
Hence the proposal for the assignment of land was returned for
want of consent from the competent authorities. As per the
Panchayat Raj Act, 1994 this land is also vested with Panchayat
and the Government has not considered puramboke land for
assignment. In the Government letter No.75246/L2/98/Rev. dated
24.1.2001, it has been directed not to submit assignment proposal
in respect of puramboke land until further orders. Based on the
judgment issued by the Honourable court in O.P. 1577/92W.P.C. No. 24300/2007. -: 3 :-
Government issued circular No. 4411802/01/RD dated 7-8-2001.
In which it has been instructed that proposals for assignment of
Government/Puramboke lands in favour of persons, associations,
organisations which do not involve public interest are not
recommended in future. Hence the proposal for assignment of the
above mentioned land in favour of the petitioner was not
materialized in the light of the above mentioned orders. As and
when fresh direction are received from the Government in the
matter of assignment of puramboke land on realizing market rate
the case of the petitioner can be considered as afresh.
7. The grievances of the petitioner is that the authorities
have informed him that the file concerned to this case is missing
in the office is baseless. Nobody in the office is informed the
petitioner that the files are missing. But due to the present
Government policies there is no scope to get assignment of
puramboke land on realizing the market rate especially on
considering the fact that assignment was also objected by the
PWD authorities. The second and 4th respondents are acting and
also bound to act as per the directions of the Government, in this
case also their stand is based on the Government directions.
Contention raised by the petitioner are against the facts and not
sustainable.
8. As and when the Government reconsider the norms and
conditions of assignment of puramboke land and when the
petitioner receives concurrence of the PWD authorities this
request of the petitioner for assigning puramboke land after
realizing market value can be considered.”
3. I have considered the rival contentions in detail.
4. I am at a loss to understand how in proceedings under the
Land Conservancy Act, the District Collector can direct assignment of
land to the petitioner by collecting market value. The learned
Government Pleader would submit that only the Government can pass
orders granting assignment of land after collecting market value.
Whatever that be, I am of opinion that the 1st respondent should take
a decision in this matter as to whether the land should be assigned
to the petitioner or whether he should be evicted under the land
W.P.C. No. 24300/2007. -: 4 :-
conservancy proceedings. Accordingly, I direct the 1st respondent to
consider this question and pass orders thereon after affording an
opportunity of being heard to the petitioner as expeditiously as
possible, at any rate, within three months from the date of receipt of
a copy of this judgment.
The writ petition is disposed of as above.
Sd/- S. Siri Jagan, Judge.
Tds/