IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 2147 of 2005()
1. VARKEY ABRAHAM, S/O.VARKEY,
... Petitioner
Vs
1. THE SECRETARY TO GOVERNMENT
... Respondent
2. THE COMMISSIONER, LAND REVENUE,
3. THE DISTRICT COLLECTOR, KOTTAYAM.
4. THE TAHSILDAR, MEENACHIL.
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :GOVERNMENT PLEADER
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.T.SANKARAN
Dated :25/07/2007
O R D E R
H.L.DATTU, C.J. & K.T.SANKARAN,J.
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W.A. NO. 2147 OF 2005 E
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Dated this the 25th July, 2007
JUDGMENT
SANKARAN, J.
The main question which arises for consideration in this Writ
Appeal is whether a person whose family possesses large extent of
lands could apply for invoking the powers of the Government under
Rule 24 of the Kerala Land Assignment Rules, to assign, in public
interest, dispensing with the provisions contained in the Rules, land
adjoining his extensive lands and that too, to get assignment of an
extent of land more than that could be assigned under the Rules.
2. The petitioner in the Writ Petition (appellant herein) was in
possession of 34.97 acres of land. He filed a statement before the
Land Board, as required under Section 85 (A)(1) of the Kerala Land
Reforms Act. The Land Board transferred the statement to the Taluk
Land Board, Meenachil, under Section 85 A (3) of the said Act. The
Taluk Land Board, in its proceedings dated 11-9-1976, accepted the
return and held that the petitioner was not required to surrender any
excess land. He was not required to surrender excess land since an
extent of 22.49 acres was under the category exempted for the
purpose of computing the ceiling area.
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3. It is stated by the petitioner that his father was in possession
of 4.35 acres of Government puramboke land. Out of the 4.35 acres of
land, an extent of 1.15 acres of land was assigned to the father of the
petitioner in Puthuvel Case No. 251 of 1105 M.E. The balance extent
of 3.20 acres of Government land is the subject matter of the present
case.
4. The petitioner filed Ext. P1 application dated 3-6-1985 under
Rules 11(8) and 16 (1) of the Kerala Land Assignment Rules
(hereinafter referred to as the `Rules’) before the Tahsildar for
assignment 3.20 acres of land. It is stated in Exhibit P1 that the
petitioner is in possession of 12.48 acres of land other than the
Government land. The Tahsildar filed a report to the District Collector,
which according to the petitioner was favourable to him. As per Exhibit
P2 order dated 22-5-1999, the District Collector, Kottayam, rejected the
application holding that the petitioner is in possession of lands in
excess of the ceiling limit under the Kerala Land Reforms Act. The
petitioner filed Exhibit P5 appeal against that order. The appellate
authority, namely, the Commissioner of Land Revenue,
Thiruvananthapuram, by his order dated 22-9-2000 (Ext. P6) set aside
Ext.P2 order passed by the District Collector, holding that the authority
to consider the application is the Tahsildar. The Tahsildar was directed
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to consider the application. However, it was found in Exhibit P6 order
that the family of the petitioner is in possession of 13.05.67 hectares of
land. The Tahsildar rejected the application by Exhibit P11 order dated
30-12-2002, holding that he has no jurisdiction to assign land for the
`beneficial enjoyment’ and that the maximum extent that could be
assigned for beneficial enjoyment under Rule 6 (2) is 25 cents. It is
also stated in Exhibit P11 order that major portion of the land is rocky.
5. Ext. P11 order passed by the Tahsildar was challenged by
the petitioner before this Court in O.P. No. 6146 of 2003, which was
disposed of as per Exhibit P12 judgment dated 11-6-2003, holding
thus:
“As per Rule 6 (2) the maximum extent prescribed is 25
cents for the assignment of land. However, according to
the petitioner, the Government has got ample power to
dispense with the extent of land provided under the
Rules. It is up to the petitioner to move the Government
in this regard. Ext. P11 order cannot be set aside by this
court and the remedy, if any, of the petitioner is only to
move the Government.
6. Thereafter, the petitioner moved the Government as per
Exhibit P13 representation dated 20-6-2003. The Government rejected
the application by Exhibit P15 order dated 22-1-2004. In Exhibit P15
order, reference is made to the report of the District Collector dated 14-
1-2004 wherein he reported that the petitioner is in possession of 13.62
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hectares of land and if the land in question is assigned to him, he
would be holding excess lands. It was also reported that the land is not
included in the list of assignable lands and that the land is a rocky
puramboke. Considering the report of the District Collector, the
Government took the view the land cannot be assigned under the
Kerala Government Land Assignment Act and Rules. Exhibit P15
order was challenged in the Writ Petition. The learned Single Judge
dismissed the writ Petition by the judgment dated 27-5-2005, which is
under challenge in this Writ Appeal.
7. The Kerala Government Land Assignment Act, 1960
(hereinafter referred to as the `Act’) was enacted to regulate the
assignment of Government lands. Section 3 of the Act provides that
Government land may be assigned by the Government or by any
prescribed authority either absolutely or subject to such restrictions,
limitations and conditions as may be prescribed. Section 4 provides
that when any Government land is proposed to be assigned by the
prescribed authority, the Tahsildar of the taluk concerned or any officer
empowered in that behalf shall notify that such land will be assigned.
The Kerala Land Assigned Rules, 1964 were made by the Government
in exercise of the powers conferred by Section 7 of the Act.
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8. The definition of the expressions “assignment”,
“encroachment not considered objectionable”, “beneficial enjoyment”
and “family” in Section 2 (c), 2(cc), 2 (cd) and 2 (d) are relevant for
consideration.
(c) “Assignment” means transfer of land by way of registry
and includes a lease and a grant of licence for the use of
the land.
(cc) “encroachment not considered objectionable” means
encroachment on Government land, which is available for
assignment, by a person or a family eligible to get land,
on registry under these rules.
(cd) “beneficial enjoyment” means the enjoyment of land
for purposes like providing approach road to the
assignee’s registered holding and protection of his
watercourse, standing crops and buildings.”
(d) “Family” includes a person, his wife or her husband,
their children living with or dependent on them and also
the parents who are solely dependent on such person.
9. Rule 5 provides for the maximum extent of land that could be
assigned on registry for purposes of personal cultivation, house sites
and beneficial enjoyment of adjoining registered holdings. Clause (b) of
Rule 5 (1) provides as follows:
“(b) in the case of lands held on lease, whether current or
time expired or by way of encroachment not considered
objectionable, the lessee or the encroacher as the case
may be will be eligible for assignment of not more than 50
cents of land, whether wet or dry, in the plains, and one
acre of land, whether wet or dry in hilly tracts. Land, if
any, held in excess of this area shall be surrendered to
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Government and no compensation shall be payable for
the lands so surrendered.”
Clauses (b) of Rule 5 was substituted by the amendment which came
into force on 3-3-2005. Prior to amendment, clause (b) provided for
assignment of larger extents, namely, not more than one acre in the
plains and not more than one acre of wet land or three acres of dry
land in hilly tracts, if there are no improvements in the land, and where
there are improvements effected on the land by the occupant, not more
than two acres in the plains and not more than two acres of wet land or
four acres of dry land in hilly tracts. It is stated by the petitioner that
the land in question is not in hilly tracts. Therefore, the maximum
extent that could be assigned, before the amendment of the Rules in
2005, is one acre or two acres, depending on the question whether the
petitioner has effected valuable improvements in the land. The
amended Rules would apply to any assignment after the amendment,
irrespective of the date of application and therefore, the maximum
extent that could be assigned to the petitioner, if he is entitled to get
assignment, is not more than fifty cents of land.
10. The petitioner contends that the land in question is
surrounded by the other lands belonging to him. The case put forward
in the Writ Petition and in the Writ Appeal is that for the beneficial
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enjoyment of other lands belonging to him, the land in question is
needed. Exhibit P1 application shows that the land in question is
bounded on the north and south by the other properties of the
petitioner and on the east and west by lands belonging to strangers.
There is no case for the petitioner that he cannot enter into his lands
otherwise than through the land sought to be assigned. The petitioner
has also not established by any acceptable evidence that the land is
indispensably required for beneficial enjoyment of adjoining registered
holdings. The authority competent to assign land for beneficial
enjoyment shall be the Revenue Divisional Officer (vide: Note (1) to
Rule 6). Moreoever, Rule 6(2) provides that the extent of Government
land that may be assigned on registry when the same is indispensably
required for the beneficial enjoyment of adjoining registered holdings
shall not exceed, in the case of one registered holding fifteen cents.
Rule 6(2) was amended in 2005 and before amendment, the extent
that could be assigned was twenty five cents. Assignment for
“beneficial enjoyment” is different from assignment for cultivation. A
comparison of Rules 5 and 6 would make this position clear. We are of
the view that the petitioner has not satisfied the requirement of the
definition of “beneficial enjoyment” in Rule 2 (cd) read with Rule 6 (2) of
the Rules.
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11. The next question to be considered is whether the petitioner
is entitled to claim assignment of an extent of 3.20 acres and that too
when he is holding large extents of land. Exhibit P4 order passed by
the Taluk Land Board shows that the petitioner was in possession of
34.97 acres including an extent of 22.49 acres of exempted land. In
Exhibit P1 application, the petitioner stated that he was in possession
of 12.48 acres. It is an admitted case that his father got assignment of
an extent of 1.15 acres of Government land and he gifted that land to
the petitioner. Exhibit P6 order passed by the Commissioner of Land
Revenue shows that the petitioner and his family members living with
him are holding an extent of 13.05.67 hectares (32.27 acres) of land
and that his daughter is in possession of 1.04 hectares (2.57 acres) of
land. The maximum extent of land that could be assigned to a person
under the Rules is 1 acre, after the amendment of the Rules in 2005.
Before the amendment, the maximum extent that could be assigned
under Rule 5 in the plains was two acres. Rule 5 (2) of the Rules reads
as follows:
“When a family owns or holds any land over which it has
proprietary right or has security of tenure, only the
balance of extent of Government land necessary to make
up the extent admissible under sub- rule (1) shall be
granted to it on registry.”
Explanation (iii) to Rule 5 (2) is as follows:
“For the purpose of calculating the extent of land that may
be assigned to a family, the total extent of land
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possessed or held with proprietary right or fixity of tenure
by the head of the family and also the members of the
family both individually and collectively shall be taken into
account. Assignment made in favour of a family under
these rules shall, for the purpose of calculating the
maximum extent that may be so assigned, include
assignment made to members of the family both
individually and collectively, the total extent so assigned
not exceeding the maximum area that may be assigned
to that family. The area under encroachment by a
member of a family shall, for the purpose of these rules,
be deemed as the area under encroachment by the
family.”
12. The definition of `family’ under Rule 2 (d) is wide. It includes
children and even parents. Children who have attained majority also
come within the definition of `family’. The only requirement is that the
children should be either living with the parents or dependent on them.
So far as parents are concerned, they must be solely dependent on the
person concerned. The definition of `family’ is wider than the family as
contemplated in Section 82 of the Kerala Land Reforms Act which
provides for ceiling area. By the operation of Rule 5 (2) read with
Explanation (iii), the petitioner cannot claim any extent of land on
registry since he holds more than the extent which could be assigned
under the Rules. Such a person cannot aspire for any assignment of
Government land on registry under Rule 5. It is an admitted case that
his father got assignment of 1.15 acres of Government land on registry
and that land came to vest in the petitioner. On that count also, the
petitioner cannot claim assignment of Government land under Rule 5.
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13. Rule 7 of the Rules would not be helpful to the petitioner.
Rule 7 (1) of the Rules reads as follows:
“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:
Provided that the total extent 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 lands held by him is below Rs. 10,000/-”
Rule 7(3) is mandatory in nature. It reads thus:
“(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, 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 it is not willing to surrender the excess
land eviction will be resorted to.”
Since the petitioner holds lands in excess of the limits provided in Rule
5 (1), he cannot claim any priority also.
14. On another ground also, the petitioner is not entitled to
succeed. It is reported that major portion of the land is rocky (“para
puramboke”). If so, it comes under Rule 11 (2) (viii) of the Rules and it
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cannot be assigned, as rightly held by the Government in Exhibit P15
order. Rule 11 (1) of the Rules provides that before granting registry,
Government shall cause to be prepared lists of the lands which should
be reserved for Government or public purposes in each village and lists
of the lands which may be made available for assignment in each
village. Rule 11 (2) states the categories of lands to be reserved for
Government or public purposes. They include the items mentioned in
clauses (i) to (x) of sub Rule (2) of Rule 11. Clause (viii) therein is the
following: “Lands containing or believed to contain valuable minerals,
quarries etc.” The Act or the Rules does not define “minerals” and
“quarries”. Section 2(jj) of the Mines Act (Act 35 of 1952) defines
“minerals” thus: “Minerals” means all substances which can be
obtained from the earth by mining, digging, drilling, dredging,
hydraulicing, quarrying or by any other operation and includes mineral
oils (which in turn include natural gas and petroleum).” Section 3 of the
Mines and Minerals (Registration and Development) Act, 1957 defines
the expressions “minerals”, and “minor minerals” thus:
“(a) “minerals” includes all minerals except mineral oils.
(e) “minor minerals” means building stones, gravel,
ordinary clay, ordinary sand other than sand used for
prescribed purposes, and any other mineral which the
Central Government may, by notification in the Official
Gazette, declare to be a minor mineral.”
The Chambers Dictionary defines “minerals” thus:
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“Any of various classes of inorganic substances, esp.
solid, naturally occurring and crystalline in form; a
substance obtained by mining; ore; a substance neither
animal nor vegetable.”
The meaning of “quarry” as shown in Chambers Dictionary is as
follows:
“an open excavation for building- stone, slate, etc; any
source of building-stone, etc; a great mass of stone or
rock.”
To constitute a “quarry” within the meaning of clause (viii) of Rule 11
(2), it is not necessary that actual quarrying should be undertaken in
the land. It is sufficient that the land has the potential to be converted
into a quarry as understood in the common parlance. Rock available in
the land and that too to a great extent, would satisfy the requirement of
the land being the one containing valuable minerals, within the
meaning of clause (viii). It would also satisfy the term “quarry”. It is
also to be noted that after the words “valuable minerals” and “quarries”,
the expression “etc.” also occurs in clause (viii) of Rule 11 (2). We are
of the view that the land would come within the purview of Rule 11.
15. The various 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
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landless people by assigning to them Governnment 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
Rules contain provisions for extending priority to landless people,
members of Scheduled Caste and Scheduled Tribes, Ex-servicemen,
persons disabled in active military service, persons who are
dependents of those who are killed or disabled while in active military
service, small holders whose family income is less than Rs. 10,000/-,
certain category of kumkidars etc. The procedure for assignment is
also provided in the Rules. Provision is made for preparing the lists of
lands to be reserved for Government or public purposes and the lands
to be set apart for assignment on registry. The lists are to be approved
by the Government or an authorized authority. The authority to approve
the list of lands available for lease or license shall be District Collector.
Various authorities are also provided to whom the applications under
the different categories are to be submitted. We are of the view that
the Act and Rules are not intended for enriching persons who hold
extensive lands. Assignment on Registry of Government lands to such
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persons would defeat the very purpose of the Act and Rules. There is
no vested right in any person to claim assignment on registry of
Government land. The claim made by the petitioner originated and
continued on encroachment. Such a person cannot have any legal
right to claim that land. Provision for assignment of lands to
encroachers is with a specific purpose. It is intended to protect such of
the encroachers who are landless and downtrodden. They too have no
vested right to get assignment on registry. The scheme of the Act and
the Rules would unmistakably show it. Mighty people do not come
anywhere near the benevolent protective umbrella of the Act and
Rules. True, a person may desire to annex to his property the
neighbouring lands, though it is Government land. Such a desire is not
recognised or protected under the Act and Rules.
16. Next, we shall consider whether the petitioner can take
shelter under Rule 24. Rule 24 reads thus:
“24. Notwithstanding anything contained in these rules the
Government may, if they consider it necessary so to do in
public interest, assign land dispensing with any of the
provisions contained in these rules and subject to such
conditions, if any, as they may impose.”
To invoke Rule 24, Government should consider it necessary in public
interest to assign land. Public interest is the main ingredient for the
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application of Rule 24. Public interest is interest of the people at large.
The purpose for which land is to be assigned invoking Rule 24 should
be one for the benefit the public in any sense of the term. Private
interest of an individual to acquire more property could never be termed
as public interest. It is relevant to note that Rule 24 empowers the
Government to assign land dispensing with any of the provisions of the
Rules alone. It does not empower the Government to dispense with
any of the provisions of the Act. Section 3 (2) of the Act is relevant in
this context. It reads:
“(2) No Government land assignable for public purpose
may be assigned under sub-section (1) without consulting
the local authority as defined in the Kerala Panchayat Raj
Act, 1994 (13 of 1994) or the Kerala Municipality Act,
1994 (20 of 1994) as the case may be and if such local
authority required such land, for carrying out any of the
functions assigned to it, Government may set apart such
land for that purpose.”
We have held that the land in question comes under Rule 11(2) (viii).
Such a land cannot be assigned without consulting the local authority.
Rule 24, in our view, does not empower the Government to completely
do away with the scheme of the Act and Rules and their purpose and
intent. Rule 24 could only be exercised in limited sphere and that too
adhering to the paramount consideration of public interest. We hold
that the petitioner cannot take recourse to Rule 24 as well.
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For the aforesaid reasons, we are of the view that there is no
merit in the Writ Appeal. The Writ Appeal is accordingly dismissed with
costs, which we quantify at Rs. 2,500/-.
(H.L.DATTU)
Chief Justice
(K.T.SANKARAN)
Judge
H.L.DATTU, C.J. &
K.T.SANKARAN, J.
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W.A.NO. 2147 OF 2005 E
JUDGMENT
July, 2007
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