{"id":113895,"date":"2007-07-25T00:00:00","date_gmt":"2007-07-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/varkey-abraham-vs-the-secretary-to-government-on-25-july-2007"},"modified":"2018-05-19T23:15:51","modified_gmt":"2018-05-19T17:45:51","slug":"varkey-abraham-vs-the-secretary-to-government-on-25-july-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/varkey-abraham-vs-the-secretary-to-government-on-25-july-2007","title":{"rendered":"Varkey Abraham vs The Secretary To Government on 25 July, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Varkey Abraham vs The Secretary To Government on 25 July, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWA No. 2147 of 2005()\n\n\n1. VARKEY ABRAHAM, S\/O.VARKEY,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE SECRETARY TO GOVERNMENT\n                       ...       Respondent\n\n2. THE COMMISSIONER, LAND REVENUE,\n\n3. THE DISTRICT COLLECTOR, KOTTAYAM.\n\n4. THE TAHSILDAR, MEENACHIL.\n\n                For Petitioner  :SRI.MATHEW JOHN (K)\n\n                For Respondent  :GOVERNMENT PLEADER\n\nThe Hon'ble the Chief Justice MR.H.L.DATTU\nThe Hon'ble MR. Justice K.T.SANKARAN\n\n Dated :25\/07\/2007\n\n O R D E R\n\n\n                    H.L.DATTU, C.J. & K.T.SANKARAN,J.\n\n                     ----------------------------------------------------\n\n                            W.A. NO.  2147  OF  2005 E\n\n                     ----------------------------------------------------\n\n                          Dated this the  25th July,   2007\n\n\n                                            JUDGMENT\n<\/pre>\n
SANKARAN, J.\n<\/p>\n<\/p>\n
        The   main   question   which   arises   for   consideration   in   this   Writ<\/p>\n
Appeal   is   whether   a   person   whose   family   possesses   large   extent   of<\/p>\n
lands   could   apply   for   invoking   the   powers   of   the   Government   under<\/p>\n
Rule   24   of   the   Kerala   Land   Assignment   Rules,   to   assign,   in   public<\/p>\n
interest,   dispensing   with   the   provisions   contained   in   the   Rules,   land<\/p>\n
adjoining   his   extensive   lands   and   that   too,   to   get   assignment   of   an<\/p>\n
extent of land more than that could be assigned under the Rules.<\/p>\n
        2.   The   petitioner   in   the   Writ   Petition   (appellant   herein)   was   in<\/p>\n
possession   of   34.97   acres   of   land.   He   filed   a   statement   before   the<\/p>\n
Land   Board,   as   required   under   Section   85   (A)(1)   of   the   Kerala   Land<\/p>\n
Reforms   Act.   The   Land   Board   transferred   the   statement   to   the   Taluk<\/p>\n
Land Board,  Meenachil,   under  Section  85  A (3) of  the  said  Act.     The<\/p>\n
Taluk   Land   Board,   in   its   proceedings   dated   11-9-1976,   accepted   the<\/p>\n
return   and   held   that   the   petitioner   was   not   required   to   surrender   any<\/p>\n
excess land.    He was not required  to surrender excess land since an<\/p>\n
extent   of   22.49   acres   was   under   the   category   exempted   for   the<\/p>\n
purpose of computing the ceiling area.\n<\/p>\n
\nW.A.. NO.2147 OF 2005<\/p>\n
                                                ::  2  ::\n<\/p>\n<\/p>\n
         3.  It is stated by the petitioner that his father was in possession<\/p>\n
of 4.35 acres of Government puramboke land.  Out of the 4.35 acres of<\/p>\n
land, an extent of 1.15 acres of land was assigned to the father of the<\/p>\n
petitioner in Puthuvel Case No. 251 of 1105 M.E.   The balance extent<\/p>\n
of 3.20 acres of Government land is the subject matter of the present<\/p>\n
case.\n<\/p>\n<\/p>\n
         4.  The petitioner filed Ext. P1 application  dated 3-6-1985 under<\/p>\n
Rules   11(8)   and   16   (1)   of   the   Kerala   Land   Assignment   Rules<\/p>\n
(hereinafter   referred   to   as   the   `Rules’)   before   the   Tahsildar   for<\/p>\n
assignment   3.20   acres   of   land.     It   is   stated   in   Exhibit   P1   that   the<\/p>\n
petitioner   is   in   possession   of   12.48   acres   of   land   other   than   the<\/p>\n
Government land. The Tahsildar filed a report to the District Collector,<\/p>\n
which according to the petitioner was favourable to him.  As per Exhibit<\/p>\n
P2 order dated 22-5-1999, the District Collector, Kottayam, rejected the<\/p>\n
application   holding   that   the   petitioner   is   in   possession   of   lands   in<\/p>\n
excess   of   the   ceiling   limit   under   the   Kerala   Land   Reforms   Act.     The<\/p>\n
petitioner   filed   Exhibit   P5   appeal   against   that   order.     The   appellate<\/p>\n
authority,   namely,   the   Commissioner   of   Land   Revenue,<\/p>\n
Thiruvananthapuram, by his order dated 22-9-2000 (Ext. P6) set aside<\/p>\n
Ext.P2 order passed by the District Collector, holding that the authority<\/p>\n
to consider the application is the Tahsildar.  The Tahsildar was directed<\/p>\n
W.A.. NO.2147 OF 2005<\/p>\n
                                                  ::  3  ::\n<\/p>\n
\nto consider the application. However, it was found in Exhibit P6 order<\/p>\n
that the family of the petitioner is in possession of 13.05.67 hectares of<\/p>\n
land.  The Tahsildar rejected the application by Exhibit P11 order dated<\/p>\n
30-12-2002,   holding   that   he   has   no   jurisdiction   to   assign  land   for  the<\/p>\n
`beneficial   enjoyment’   and   that   the   maximum   extent   that   could   be<\/p>\n
assigned  for  beneficial   enjoyment   under  Rule  6   (2)  is  25   cents.     It   is<\/p>\n
also stated in Exhibit P11 order that major portion of the land is rocky.<\/p>\n
         5.     Ext.   P11   order   passed   by  the   Tahsildar  was  challenged   by<\/p>\n
the  petitioner   before   this   Court   in   O.P.   No.   6146   of   2003,   which   was<\/p>\n
disposed   of   as   per   Exhibit   P12   judgment   dated   11-6-2003,   holding<\/p>\n
thus:\n<\/p>\n<\/p>\n
         “As per Rule 6 (2) the maximum extent prescribed is  25<\/p>\n
         cents for the assignment of land.   However, according to<\/p>\n
         the   petitioner,   the   Government   has   got   ample   power   to<\/p>\n
         dispense   with   the   extent   of   land   provided   under   the<\/p>\n
         Rules.   It is up to the petitioner to move the Government<\/p>\n
         in this regard.  Ext. P11 order cannot be set aside by this<\/p>\n
         court   and   the   remedy,   if   any,  of   the   petitioner   is   only  to<\/p>\n
         move the Government.<\/p><\/blockquote>\n
         6.     Thereafter,   the   petitioner   moved   the   Government   as   per<\/p>\n
Exhibit P13 representation dated 20-6-2003.  The Government rejected<\/p>\n
the   application   by   Exhibit   P15   order   dated   22-1-2004.   In   Exhibit   P15<\/p>\n
order, reference is made to the report of the District Collector dated 14-<\/p>\n
1-2004 wherein he reported that the petitioner is in possession of 13.62<\/p>\n
W.A.. NO.2147 OF 2005<\/p>\n
                                                 ::  4  ::\n<\/p>\n
\nhectares   of   land   and   if   the   land   in   question   is   assigned   to   him,   he<\/p>\n
would be holding excess lands.  It was also reported that the land is not<\/p>\n
included   in   the   list   of   assignable   lands   and   that   the   land   is   a   rocky<\/p>\n
puramboke.     Considering   the   report   of   the   District   Collector,   the<\/p>\n
Government   took   the   view   the   land   cannot   be   assigned   under   the<\/p>\n
Kerala   Government   Land   Assignment   Act   and   Rules.     Exhibit   P15<\/p>\n
order  was  challenged   in  the   Writ   Petition.    The   learned   Single   Judge<\/p>\n
dismissed the writ Petition by the judgment dated 27-5-2005, which is<\/p>\n
under challenge in this Writ Appeal.\n<\/p>\n<\/p>\n
        7.     The   Kerala   Government   Land   Assignment   Act,   1960<\/p>\n
(hereinafter   referred   to   as   the   `Act’)   was   enacted   to   regulate   the<\/p>\n
assignment   of   Government   lands.   Section   3   of   the   Act   provides   that<\/p>\n
Government   land   may   be   assigned   by   the   Government   or   by   any<\/p>\n
prescribed   authority   either   absolutely   or   subject   to   such   restrictions,<\/p>\n
limitations   and   conditions   as  may   be   prescribed.     Section   4   provides<\/p>\n
that   when   any   Government   land   is   proposed   to   be   assigned   by   the<\/p>\n
prescribed authority, the Tahsildar of the taluk concerned or any officer<\/p>\n
empowered in that behalf  shall notify that such land will be  assigned.<\/p>\n
The Kerala Land Assigned Rules, 1964 were made by the Government<\/p>\n
in exercise of the powers conferred by Section 7 of the Act.<\/p>\n
W.A.. NO.2147 OF 2005<\/p>\n
                                                    ::  5  ::\n<\/p>\n<\/p>\n
         8.        The   definition   of   the   expressions   “assignment”,<\/p>\n
“encroachment   not   considered   objectionable”,   “beneficial   enjoyment”<\/p>\n
and   “family”   in   Section   2   (c),   2(cc),   2   (cd)   and   2   (d)   are   relevant   for<\/p>\n
consideration.\n<\/p>\n<\/p>\n
         (c) “Assignment” means transfer of land by way of registry<\/p>\n
         and includes a lease and a grant of licence for the use of<\/p>\n
         the land.\n<\/p>\n
\n         (cc) “encroachment not considered objectionable” means<\/p>\n
         encroachment on Government land, which is available for<\/p>\n
         assignment, by a person or a   family eligible to get land,<\/p>\n
         on registry under these rules.\n<\/p>\n
\n         (cd) “beneficial enjoyment” means the enjoyment of land<\/p>\n
         for   purposes   like   providing   approach   road   to   the<\/p>\n
         assignee’s   registered   holding   and   protection   of   his<\/p>\n
         watercourse, standing crops and buildings.”<\/p>\n
         (d)  “Family”  includes   a   person,   his   wife   or   her   husband,<\/p>\n
         their   children   living   with   or   dependent   on   them   and   also<\/p>\n
         the parents who are solely dependent on such person.<\/p>\n
         9.  Rule 5 provides for the maximum extent of land that could be<\/p>\n
assigned  on   registry  for  purposes   of   personal   cultivation,   house   sites<\/p>\n
and beneficial enjoyment of adjoining registered holdings. Clause (b) of<\/p>\n
Rule 5 (1) provides as follows:\n<\/p>\n<\/p>\n
         “(b) in the case of lands held on lease, whether current or<\/p>\n
         time   expired  or  by  way  of   encroachment   not   considered<\/p>\n
         objectionable,   the   lessee   or  the   encroacher   as  the   case<\/p>\n
         may be will be eligible for assignment of not more than 50<\/p>\n
         cents of land, whether wet or dry, in the plains,  and one<\/p>\n
         acre   of   land,   whether  wet  or   dry  in   hilly   tracts.     Land,   if<\/p>\n
         any,   held   in  excess   of   this   area   shall   be   surrendered   to<\/p>\n
W.A.. NO.2147 OF 2005<\/p>\n
                                                  ::  6  ::\n<\/p><\/blockquote>\n
\n         Government   and   no   compensation   shall   be   payable   for<\/p>\n
         the lands so surrendered.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Clauses (b) of Rule 5 was  substituted by the amendment which came<\/p>\n
into   force   on   3-3-2005.     Prior   to   amendment,   clause   (b)   provided   for<\/p>\n
assignment   of   larger   extents,   namely,   not   more   than   one   acre   in   the<\/p>\n
plains   and   not   more   than   one   acre   of   wet   land   or  three   acres   of   dry<\/p>\n
land in hilly tracts, if there are no improvements in the land, and where<\/p>\n
there are improvements effected on the land by the occupant, not more<\/p>\n
than two acres in the plains and not more than two acres of wet land or<\/p>\n
four acres of dry land in hilly tracts.  It is stated by   the petitioner  that<\/p>\n
the   land   in   question   is   not   in   hilly   tracts.     Therefore,   the   maximum<\/p>\n
extent that  could be assigned,  before  the amendment  of  the Rules in<\/p>\n
2005, is one acre or two acres, depending on the question whether the<\/p>\n
petitioner   has   effected   valuable   improvements   in   the   land.   The<\/p>\n
amended Rules would apply to any assignment  after the amendment,<\/p>\n
irrespective   of   the   date   of   application   and   therefore,   the   maximum<\/p>\n
extent  that  could  be  assigned   to the  petitioner,   if  he   is  entitled  to  get<\/p>\n
assignment, is not more than fifty cents of land.<\/p>\n
        10.     The   petitioner   contends   that   the   land   in   question   is<\/p>\n
surrounded by the other lands belonging to him. The case put forward<\/p>\n
in   the   Writ   Petition   and   in   the   Writ   Appeal   is   that   for   the   beneficial<\/p>\n
W.A.. NO.2147 OF 2005<\/p>\n
                                                ::  7  ::\n<\/p>\n
\nenjoyment   of   other   lands   belonging   to   him,   the   land   in   question   is<\/p>\n
needed.   Exhibit   P1   application   shows   that   the   land   in   question   is<\/p>\n
bounded   on   the   north   and   south   by   the   other   properties   of   the<\/p>\n
petitioner   and   on   the   east   and   west   by   lands   belonging   to   strangers.<\/p>\n
There is no case for the petitioner that he cannot enter into his lands<\/p>\n
otherwise than through the land sought to be assigned. The petitioner<\/p>\n
has  also   not   established  by  any acceptable  evidence   that  the  land  is<\/p>\n
indispensably required for beneficial enjoyment of adjoining registered<\/p>\n
holdings.   The   authority   competent   to   assign   land   for   beneficial<\/p>\n
enjoyment   shall   be   the   Revenue   Divisional   Officer   (vide:   Note   (1)   to<\/p>\n
Rule 6).  Moreoever, Rule 6(2) provides that the extent of Government<\/p>\n
land that may be assigned on registry when the same is indispensably<\/p>\n
required   for   the   beneficial   enjoyment   of   adjoining   registered   holdings<\/p>\n
shall   not   exceed,   in   the   case   of   one   registered   holding   fifteen   cents.<\/p>\n
Rule   6(2)   was   amended   in   2005   and   before   amendment,   the   extent<\/p>\n
that   could   be   assigned   was   twenty   five   cents.   Assignment   for<\/p>\n
“beneficial   enjoyment”   is   different   from   assignment   for   cultivation.     A<\/p>\n
comparison of Rules 5 and 6 would make this position clear. We are of<\/p>\n
the   view   that   the   petitioner   has   not   satisfied   the   requirement   of   the<\/p>\n
definition of “beneficial enjoyment” in Rule 2 (cd) read with Rule 6 (2) of<\/p>\n
the Rules.\n<\/p>\n
\nW.A.. NO.2147 OF 2005<\/p>\n
                                              ::  8  ::\n<\/p>\n<\/p>\n
        11.  The next question to be considered is whether the petitioner<\/p>\n
is entitled to claim assignment of an extent of 3.20 acres and that too<\/p>\n
when  he  is  holding large  extents   of   land.   Exhibit P4  order   passed  by<\/p>\n
the  Taluk  Land   Board  shows that  the  petitioner  was in  possession  of<\/p>\n
34.97  acres  including an  extent  of  22.49  acres  of  exempted  land.     In<\/p>\n
Exhibit P1 application, the petitioner stated that he was in possession<\/p>\n
of 12.48 acres.  It is an admitted case that his father got assignment of<\/p>\n
an extent of 1.15 acres of Government land and he gifted that land to<\/p>\n
the  petitioner.   Exhibit   P6   order   passed   by  the   Commissioner   of   Land<\/p>\n
Revenue shows that the petitioner and his family members living with<\/p>\n
him   are  holding   an  extent   of   13.05.67   hectares   (32.27   acres)   of   land<\/p>\n
and that his daughter is in possession of 1.04 hectares (2.57 acres) of<\/p>\n
land. The maximum extent of land that could be assigned to a person<\/p>\n
under the Rules is 1 acre, after the amendment of the Rules in 2005.<\/p>\n
Before   the   amendment,   the   maximum   extent   that   could   be   assigned<\/p>\n
under Rule 5 in the plains was two acres.  Rule 5 (2) of the Rules reads<\/p>\n
as follows:\n<\/p>\n<\/p>\n
        “When a family owns or holds any land over which it has<\/p>\n
        proprietary   right   or   has   security   of   tenure,   only   the<\/p>\n
        balance of extent of Government land necessary to make<\/p>\n
        up   the   extent   admissible   under   sub-   rule   (1)   shall   be<\/p>\n
        granted to it on registry.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
Explanation (iii) to Rule 5 (2) is as follows:\n<\/p>\n<\/p>\n
        “For the purpose of calculating the extent of land that may<\/p>\n
        be   assigned   to   a   family,   the   total   extent   of   land<\/p>\n
W.A.. NO.2147 OF 2005<\/p>\n
                                               ::  9  ::\n<\/p>\n
\n        possessed or held with proprietary right or fixity of tenure<\/p>\n
        by   the   head   of   the   family   and   also   the   members   of   the<\/p>\n
        family both individually and collectively shall be taken into<\/p>\n
        account.     Assignment   made   in   favour   of   a   family   under<\/p>\n
        these   rules   shall,   for   the   purpose   of   calculating   the<\/p>\n
        maximum   extent   that   may   be   so   assigned,   include<\/p>\n
        assignment   made   to   members   of   the   family   both<\/p>\n
        individually  and   collectively,   the   total   extent   so   assigned<\/p>\n
        not  exceeding  the  maximum  area  that   may  be   assigned<\/p>\n
        to   that   family.     The   area   under   encroachment   by   a<\/p>\n
        member of a family shall, for the purpose of these rules,<\/p>\n
        be   deemed   as   the   area   under   encroachment   by   the<\/p>\n
        family.”\n<\/p>\n<\/p>\n
        12.  The definition of `family’ under Rule 2 (d) is wide.  It includes<\/p>\n
children  and  even   parents.     Children   who  have  attained  majority  also<\/p>\n
come within the definition of `family’.   The only requirement is that the<\/p>\n
children should be either living with the parents or dependent on them.<\/p>\n
So far as parents are concerned, they must be solely dependent on the<\/p>\n
person concerned.  The definition of `family’ is wider than the family as<\/p>\n
contemplated   in   Section   82   of   the   Kerala   Land   Reforms   Act   which<\/p>\n
provides   for   ceiling   area.   By   the   operation   of   Rule   5   (2)   read   with<\/p>\n
Explanation   (iii),   the   petitioner   cannot   claim   any   extent   of   land   on<\/p>\n
registry since he holds more than the extent which could be assigned<\/p>\n
under the Rules.   Such a person cannot aspire for any assignment of<\/p>\n
Government land on registry under Rule 5. It is an admitted case that<\/p>\n
his father got assignment of 1.15 acres of Government land on registry<\/p>\n
and  that  land  came   to vest in  the  petitioner.    On  that  count  also,  the<\/p>\n
petitioner cannot claim assignment of Government land under Rule 5.<\/p>\n
W.A.. NO.2147 OF 2005<\/p>\n
                                                 ::  10  ::\n<\/p>\n<\/p>\n
        13.    Rule 7 of  the Rules  would not be helpful  to the petitioner.<\/p>\n
Rule 7 (1) of the Rules reads as follows:\n<\/p>\n<\/p>\n
        “7. Priority to be observed in assignment:- (1) Where any<\/p>\n
        person is in occupation of Government lands under lease,<\/p>\n
        whether   current   or   time   expired,   or   by   way   of<\/p>\n
        encroachment   not   considered   objectionable   such   land   if<\/p>\n
        such   occupation   is   before   the   1st  day   of   August,   1971,<\/p>\n
        shall be assigned to him on registry:\n<\/p><\/blockquote>\n
\n        Provided   that   the   total   extent   of   land,   if   any,   owned   or<\/p>\n
        held by him in proprietary right or with security of tenure is<\/p>\n
        less than the limits laid down in sub- rule (1) of Rule 5 or<\/p>\n
        the   annual   family   income   from   sources   other   than   the<\/p>\n
        Government lands held by him is below Rs. 10,000\/-”<\/p>\n<\/blockquote>\n
Rule 7(3) is mandatory in nature.  It reads thus:<\/p>\n
        “(3)   No   registry   shall   be   granted   to   any   family   in<\/p>\n
        occupation   of   Government   land   either   under   a   lease,<\/p>\n
        current or time expired or by way of encroachment, unless<\/p>\n
        it   surrenders   to   Government,   without   claiming   any<\/p>\n
        compensation, the land in excess of the extent proposed<\/p>\n
        to be registered in its favour.  If there is excess land, in its<\/p>\n
        possession   and   it   is   not   willing   to   surrender   the   excess<\/p>\n
        land eviction will be resorted to.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Since the petitioner holds lands in excess of the limits provided in Rule<\/p>\n
5 (1), he cannot claim any priority also.\n<\/p>\n<\/p>\n
        14.     On   another   ground   also,   the   petitioner   is   not   entitled   to<\/p>\n
succeed.     It   is   reported   that   major   portion   of   the   land   is   rocky  (“para<\/p>\n
puramboke”). If so, it comes under Rule 11 (2) (viii) of the Rules and it<\/p>\n
W.A.. NO.2147 OF 2005<\/p>\n
                                              ::  11  ::\n<\/p>\n
\ncannot be assigned, as rightly held by the Government in Exhibit P15<\/p>\n
order.  Rule  11  (1)  of  the  Rules  provides  that  before  granting  registry,<\/p>\n
Government shall cause to be prepared lists of the lands which should<\/p>\n
be reserved for Government or public purposes in each village and lists<\/p>\n
of   the   lands   which   may   be   made   available   for   assignment   in   each<\/p>\n
village.    Rule  11  (2) states  the  categories  of  lands  to be  reserved  for<\/p>\n
Government or public purposes.   They include the items mentioned in<\/p>\n
clauses (i) to (x) of sub Rule (2) of Rule 11.  Clause (viii) therein is the<\/p>\n
following:  “Lands   containing   or   believed   to   contain   valuable   minerals,<\/p>\n
quarries   etc.”   The   Act   or   the   Rules   does   not   define   “minerals”   and<\/p>\n
“quarries”.   Section   2(jj)   of   the   Mines   Act   (Act   35   of   1952)   defines<\/p>\n
“minerals”   thus:   “Minerals”   means   all   substances   which   can   be<\/p>\n
obtained   from   the   earth   by   mining,   digging,   drilling,   dredging,<\/p>\n
hydraulicing, quarrying or by any other operation and includes mineral<\/p>\n
oils (which in turn include natural gas and petroleum).” Section 3 of the<\/p>\n
Mines and Minerals (Registration and Development) Act, 1957 defines<\/p>\n
the expressions “minerals”, and “minor minerals” thus:<\/p>\n
        “(a) “minerals” includes all minerals except mineral oils.<\/p>\n<\/blockquote>\n
        (e)   “minor   minerals”   means   building   stones,   gravel,<\/p>\n
        ordinary   clay,   ordinary   sand   other   than   sand   used   for<\/p>\n
        prescribed   purposes,   and   any   other   mineral   which   the<\/p>\n
        Central   Government   may,   by   notification   in   the   Official<\/p>\n
        Gazette, declare to be a minor mineral.”<\/p>\n
        The Chambers Dictionary defines “minerals” thus:<\/p>\n<\/blockquote>\n
W.A.. NO.2147 OF 2005<\/p>\n
                                              ::  12  ::\n<\/p>\n
        “Any   of   various   classes   of   inorganic   substances,  esp.<\/p>\n
        solid,   naturally   occurring   and   crystalline   in   form;   a<\/p>\n
        substance obtained by mining; ore; a substance  neither<\/p>\n
        animal nor vegetable.”\n<\/p>\n
The   meaning   of   “quarry”   as   shown   in   Chambers   Dictionary   is   as<\/p>\n
follows:\n<\/p>\n<\/p>\n
        “an   open   excavation   for   building-   stone,   slate,   etc;   any<\/p>\n
        source   of   building-stone,   etc;   a   great   mass   of   stone   or<\/p>\n
        rock.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
To  constitute a “quarry”  within the meaning of  clause (viii)  of  Rule  11<\/p>\n
(2),  it   is   not   necessary   that   actual   quarrying  should   be   undertaken   in<\/p>\n
the land.   It is sufficient that the land has the potential to be converted<\/p>\n
into a quarry as understood in the common parlance.  Rock available in<\/p>\n
the land and that too to a great extent, would satisfy the requirement of<\/p>\n
the   land   being   the   one   containing   valuable   minerals,   within   the<\/p>\n
meaning  of   clause  (viii).    It would  also  satisfy the   term  “quarry”.   It   is<\/p>\n
also to be noted that after the words “valuable minerals” and “quarries”,<\/p>\n
the expression “etc.” also occurs in clause (viii) of Rule 11 (2).  We are<\/p>\n
of the view that the land would come within the purview of Rule 11.<\/p>\n
        15.     The   various   provisions   in   the   Kerala   Government   Land<\/p>\n
Assignment   Act   and   the   Kerala   Land   Assignment   Rules   would<\/p>\n
unmistakably   show   that   the   Act   and   Rules   are   intended   to   protect<\/p>\n
W.A.. NO.2147 OF 2005<\/p>\n
                                             ::  13  ::\n<\/p>\n
\nlandless people by assigning to them Governnment lands for cultivation<\/p>\n
and other purposes.   The Act provides for assignment of Government<\/p>\n
land absolutely or subject to such restrictions, limitations and conditions<\/p>\n
as may be prescribed. The Rules provides for assignment of lands on<\/p>\n
registry  for   purposes   of   personal   cultivation.   The   Rules   also   provides<\/p>\n
for granting assignment of small extents of land for constructing houses<\/p>\n
and  for the beneficial enjoyment of  adjoining registered holdings. The<\/p>\n
Rules   contain   provisions   for   extending   priority   to   landless   people,<\/p>\n
members of Scheduled Caste and Scheduled Tribes,   Ex-servicemen,<\/p>\n
persons   disabled   in   active   military   service,   persons   who   are<\/p>\n
dependents of those who are killed or disabled while in active military<\/p>\n
service, small  holders whose  family income  is less than Rs. 10,000\/-,<\/p>\n
certain   category   of   kumkidars   etc.     The   procedure   for   assignment   is<\/p>\n
also provided in the Rules. Provision is made for preparing the lists of<\/p>\n
lands to be reserved for Government or public purposes and the lands<\/p>\n
to be set apart for assignment on registry. The lists are to be approved<\/p>\n
by the Government or an authorized authority. The authority to approve<\/p>\n
the list of lands available for lease or license shall be District Collector.<\/p>\n
Various   authorities   are  also   provided   to   whom   the   applications   under<\/p>\n
the different categories are to be submitted.   We  are of  the view that<\/p>\n
the   Act   and   Rules   are   not   intended   for   enriching   persons   who   hold<\/p>\n
extensive lands.  Assignment on Registry of Government lands to such<\/p>\n
W.A.. NO.2147 OF 2005<\/p>\n
                                               ::  14  ::\n<\/p>\n
\npersons would defeat the very purpose of the Act and Rules.  There is<\/p>\n
no   vested   right   in   any   person   to   claim   assignment   on   registry   of<\/p>\n
Government   land.     The   claim   made   by   the   petitioner   originated   and<\/p>\n
continued   on   encroachment.     Such   a   person   cannot   have   any   legal<\/p>\n
right   to   claim   that   land.     Provision   for     assignment   of   lands   to<\/p>\n
encroachers is with a specific purpose.  It is intended to protect such of<\/p>\n
the encroachers who are landless and downtrodden.  They too have no<\/p>\n
vested right to get assignment on registry.  The scheme of the Act and<\/p>\n
the   Rules   would   unmistakably   show   it.   Mighty   people   do   not   come<\/p>\n
anywhere   near   the   benevolent   protective   umbrella   of   the   Act   and<\/p>\n
Rules.   True,   a   person   may   desire   to   annex   to   his   property   the<\/p>\n
neighbouring lands, though it is Government land.  Such a desire is not<\/p>\n
recognised or protected under the Act and Rules.<\/p>\n
        16.     Next,   we   shall   consider   whether   the   petitioner   can   take<\/p>\n
shelter under Rule 24.  Rule 24 reads thus:\n<\/p>\n<\/p>\n
        “24. Notwithstanding anything contained in these rules the<\/p>\n
        Government may, if they consider it necessary so to do in<\/p>\n
        public   interest,   assign   land   dispensing   with   any   of   the<\/p>\n
        provisions   contained   in   these   rules   and   subject   to   such<\/p>\n
        conditions, if any, as they may impose.”<\/p>\n<\/blockquote>\n
To invoke Rule 24, Government should consider it necessary in public<\/p>\n
interest  to   assign   land.   Public   interest   is   the   main   ingredient   for   the<\/p>\n
W.A.. NO.2147 OF 2005<\/p>\n
                                                 ::  15  ::\n<\/p>\n
\napplication of Rule 24. Public interest is interest of the people at large.<\/p>\n
The purpose for which land is to be assigned invoking Rule 24 should<\/p>\n
be   one   for   the   benefit   the   public   in   any   sense   of   the   term.     Private<\/p>\n
interest of an individual to acquire more property could never be termed<\/p>\n
as   public   interest.     It   is   relevant   to   note   that   Rule   24   empowers   the<\/p>\n
Government to assign land dispensing with any of the provisions of the<\/p>\n
Rules   alone.     It   does   not   empower   the   Government   to   dispense   with<\/p>\n
any of the provisions of the Act. Section 3 (2) of the Act is relevant in<\/p>\n
this context. It reads:\n<\/p>\n<\/p>\n
         “(2)   No   Government   land   assignable   for   public   purpose<\/p>\n
         may be assigned under sub-section (1) without consulting<\/p>\n
         the local authority as defined in the Kerala Panchayat Raj<\/p>\n
         Act,   1994   (13   of   1994)   or   the   Kerala   Municipality   Act,<\/p>\n
         1994 (20 of  1994) as the case may be and if such local<\/p>\n
         authority   required   such   land,   for   carrying   out   any   of   the<\/p>\n
         functions assigned to it, Government may set apart such<\/p>\n
         land for that purpose.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
We  have held that the land in question comes under Rule 11(2) (viii).<\/p>\n
Such a land cannot be assigned without consulting the local authority.<\/p>\n
Rule 24, in our view, does not empower the Government to completely<\/p>\n
do away with the scheme of the Act and Rules and their purpose and<\/p>\n
intent.   Rule 24 could only be exercised in limited sphere and that too<\/p>\n
adhering   to   the   paramount   consideration   of   public   interest.     We   hold<\/p>\n
that the petitioner cannot take recourse to Rule 24 as well.<\/p>\n
W.A.. NO.2147 OF 2005<\/p>\n
                                             ::  16  ::\n<\/p>\n
\n      For   the   aforesaid   reasons,   we   are   of   the   view  that   there   is   no<\/p>\n
merit in the Writ Appeal.  The Writ Appeal is accordingly dismissed with<\/p>\n
costs, which we quantify at Rs. 2,500\/-.\n<\/p>\n<\/p>\n
                                                                    (H.L.DATTU)<\/p>\n
                                                                   Chief Justice<\/p>\n
                                                                (K.T.SANKARAN)<\/p>\n
                                                                         Judge<\/p>\n
          H.L.DATTU, C.J. &<\/p>\n
         K.T.SANKARAN, J.\n<\/p>\n
———————————————-<\/p>\n
———————————————-<\/p>\n
    W.A.NO. 2147 OF 2005 E<\/p>\n
              JUDGMENT<\/p>\n
                July, 2007<\/p>\n<\/blockquote>\n
———————————————-<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Varkey Abraham vs The Secretary To Government on 25 July, 2007 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-113895","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nVarkey Abraham vs The Secretary To Government on 25 July, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/varkey-abraham-vs-the-secretary-to-government-on-25-july-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Varkey Abraham vs The Secretary To Government on 25 July, 2007 - 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