Remanded

Ashakumar v. State of Kerala

Kerala HC30 Nov 2018WP(C)/23542/2018

Case brief

AI extract

What is this about?

Petitioners challenged an order rejecting their application for land assignment due to exceeding the family income limit. The Court held that since the petitioners consented to payment of market value, the income limit was irrelevant, declaring the rejection illegal and remitting the matter for reconsideration.

What did the court decide?

Impugned order quashed; matter remitted to respondents for reconsideration within 2 months; order to be made subject to payment of market value.

Ashakumar Vs State of Kerala — Land Acquisition | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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FRIDAY ,THE 30TH DAY OF NOVEMBER 2018 / 9TH AGRAHAYANA, 1940

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WP(C).No. 23542 of 2018

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PETITIONER/S:

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1 ASHAKUMAR, AGED 45 YEARS SON OF THANKAPPAN, CHAKKALAKKAL HOUSE, THUTHIYOOR,KAKKANAD, ERNAKULAM 682 037

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2 MINI MOL, WIFE OF ASHAKUMAR,CHAKKALAKKAL HOUSE, THUTHIYOOR,KAKKANAD, EERNAKULAM 682 037.

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BY ADV. SMT.K.P.SANTHI

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RESPONDENT/S:

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1 STATE OF KERALA

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REPRESENTED BY THE SECRETARY TO GOVERNMENT,REVENUE DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2 THE DISTRICT COLELCTOR, ERNAKULAM 682 030.

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3 THE TAHSILDAR

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KANAYANNUR TALUK,TALUK OFFICE, KANAYANNUR,PARK AVENUE ROAD, ERNAKULAM 682 011.

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4 THE PUBLIC GRIEVANCE OFFICER KANAYANNUR TALUK, TALUK OFFICE, KANAYANNUR,PARK AVENUE ROAD, ERNAKULAM 682 011

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5 THE VILLAGE OFFICER VILLAGE OFFICE, VAZHAKKALA,KAKKANAD, ERNAKULAM 682 030.

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OTHER PRESENT:

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SRI.SAIGI JACOB PALATTY,SR.GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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==================

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W.P.(C).No. 23542 of 2018

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==================

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Dated this the 30^th day of November, 2018

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J U D G M E N T

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The petitioners are aggrieved by the impugned decision of the respondents, more particularly that of the 3^rd respondent, as reflected in Ext.P-10 communication dated 24.8.2017, whereby the application of the petitioners for assignment of land held on beneficial basis has been rejected on the ground that the income limit of the petitioners' family is above the prescribed limit, even though the respondents had proceeded to consider the application, subject to payment of market value of the land.

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The prayers in this Writ Petition (Civil) are as follows:

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“(i) issue a writ of certiorari or such other writ, direction or order quashing Exhibit P-10 as arbitrary, illegal and unreasonable.

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(ii) issue a writ of mandamus or such other writ, direction or order compelling the 2^nd respondent to assign 1.62 ares of land in Survey No.154/3, Block NO.9 of Vazhakkala Village, Kanayannur Taluk, Ernakulam District, within a time frame to be fixed by this Honourable Court;

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(iii) issue such other writ, direction or order as is deemed just and necessary in the facts, features and circumstances of the case.”

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Heard Smt.K.P.Santhi, learned counsel appearing for the

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petitioners and Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader,

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W.P.(C).23542/18 - : 3 :-

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appearing for the respondents.

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The petitioners, who are spouses, claim to be in possession and enjoyment of 1.62 Acres of land in Sy.No. 154/3, block No.9 of Vazhakkala Village, Kanayannur Taluk, Ernakulam revenue district and that they are in possession of the said property since 2004. That the 1^st petitioner was earlier working as coolie and, with the help of friends and relatives, a small house was built in the property where the petitioners are now residing with their two children.

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The petitioners had earlier submitted Ext.P-1 application dated 20.7.2004 before the 3^rd respondent Tahsildar seeking assignment of the said land. That the said application was forwarded to R-5 Village Officer, who in turn, has submitted Ext.P-2 report stating that the petitioners have no other property and are entitled to be assigned land. Further R-5 Village Officer had submitted Ext.P-3 report giving the details of the market value of the land in terms of the recent transactions in the locality. Thereafter, R-5 Village Officer has issued Ext.P-4 certificate to the petitioners dated 8.6.2005 stating that the petitioners have no other property. In the meanwhile, the 1^st petitioner had obtained employment in this Court as watchman as discernible from Ext.P-5 salary certificate dated 12.7.2005.

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W.P.(C).23542/18 - : 4 :-

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Subsequently, R-5 Village Officer had issued Ext.P-6 letter dated 4.10.2005 directing the petitioners to give their consent for assignment of land on payment of market value. Thereupon, the petitioners had submitted Ext.P-7 letter 15.10.2005 giving their consent for payment of market value. Consequently, by Ext.P-8 letter dated 8.12.2005, R-3 Tahsildar has published notice under the provisions of the Land Assignment Act and the rules framed thereunder, calling for objections, if any, for assignment of the land and these aspects are discernible from Exts.P-6 to P-8. Now the petitioners have been informed by Ext.P-10 communication dated 24.8.2017 issued by the 4^th respondent Public Grievance officer of Kanayannur Taluk that the petitioners' application for assignment of land has been rejected on the ground that their family income is above the prescribed outer limit. The petitioners would urge that the respondents have taken into consideration irrelevant aspects in mechanically rejecting the application of the petitioners on the ground that their income has exceeded the outer limit, as the petitioners are not seeking assignment of land free of cost or on concessional basis, but on the directions of the respondents they have given their unconditional consent that the assignment of land has to be made subject to payment of market value and that the decision in that regard has already been

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W.P.(C).23542/18 - : 5 :-

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approved by the competent land assignment committee. Accordingly, the petitioners would urge that the competent authority among the respondents, more particularly respondents 2 and 3, will have to be directed to assign the abovesaid 1.62 Ares of land within a reasonable time limit to be fixed by this Court. In that regard the petitioners have subsequently submitted Ext.P-11 application dated 8.5.2018 before the 2^nd respondent District Collector as well as Ext.P-12 representation dated 8.5.2018 before the 3^rd respondent Tahsildar pointing out that the matter requires reconsideration and the petitioners are eligible and entitled for grant of land assignment subject to payment of market value, etc. It is in the light of these factual averments, that the petitioners have filed the instant Writ Petition (Civil) with the aforementioned prayers.

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When this matter had come up on previous occasions, this Court had directed both sides to make available copy of the proceedings of the land assignment committee, in which the petitioners' application was sanctioned. Since the respondents have not made available a copy of the said proceedings, the petitioners were directed to produce the same and now the petitioners have filed affidavit dated 29.11.2018 producing therewith additional document as per Ext.P-13 along with I.A.No. 1/2018 in this W.P.(C). Ext.P-13 is

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W.P.(C).23542/18 - : 6 :-

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the copy of the proceedings of the land assignment committee held on 22.12.2006, wherein decision was taken by the land assignment committee to proceed further with the grant of land assignment in the case of the petitioners and five others. The contents of the decision of the land assignment committee rendered on 22.12.2006 as disclosed in Ext.P-13 read as follows:

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" കണയന�ർ ത�ല�ക� പഞ�യത�തല ഭ�മ� പത�വ കമ�റ� 22/12/06 ന ത�ല�ക�ഫ�സ�ൽ ര�വ�ലല 11.00 മണ�ക� തഹസ�ൽദ�ര ല! അദ$കതയ�ൽ ആര'ഭ�ച) .

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കമ�റ� മ ൻപ�ലക ക�കന�ട വ�ലല.ജ�ലല പത�വ അലപകകള)' വ�ഴക�ല വ�ലല.ജ�ലല 23 അലപകകള)' മ ളന ര ത� വ�ലല.ജ�ലല 2 അലപകകള)' മ�തക ന' , ക മള' , ത�ര വ�ങ ള' , മരട , ആമല.5ർ , ല6ര�നല.5ർ എന� വ�ലല.ജ കള�ൽ ഓലര� അലപകകള)' എ!ക�ട)വയൽ വ�ലല.ജ�ലല ഏഴ അലപകകള)' പര�ഗണനയക� വയക കയ ' കമ�റ� 6ർച ല6യ> ത�ര മ�നലമ! ക കയ ' ല6യത . കമ�റ� അ'ഗ�ക�ര' നൽക ന ലകസ കള�ൽ സമയബന�തമ�യ� ന!പ!�കൾ സB�കര�ച� അ! ത� തലന ന!ക�ന�!യ ള പടയ ലമളയ�ൽ ലവച� പടയ' നലക�ന�വ ലമന� പപത�ക�ക നത�യ� തഹസ�ൽദ�ർ കമ�റ�ലയ അറ�യ�ച) . ലയ�ഗ' 12.45 ന അവസ�ന�ച) .

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The petitioners' name have been shown as serial No.2 in the list of applicants, whose names have been recommended by the land assignment committee, as per Ext.P-13.

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The main issue posed now before this Court is as to the legality and correctness of the impugned decision of the respondents as reflected in Ext.P-10 communication dated 24.8.2017, wherein it is stated that the petitioners' application for land assignment has been rejected on the ground that the petitioners' income exceeds the prescribed outer limit in that regard as per the rules. Going by the

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W.P.(C).23542/18 - : 7 :-

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pleadings and materials on record, it is indisputable that though earlier the case of the petitioners was being processed without any specific condition as to whether or not assignment is to be made free of cost or subject to payable of market value, later the respondents had directed the petitioners as per Ext.P-6 letter dated 4.10.2005 to give their consent that the assignment of land would be only subject to payment of market value. Thereupon the petitioners have unconditionally undertaken in Ext.P-7 letter dated 15.10.2005 that they would consent for that condition for assignment of land subject to payment of market value. Thereafter, the respondents had taken steps as per Exts.P-6 to P-8 to publish the notice under the provisions of the Land Assignment Act and the rules framed thereunder, calling for objections, if any, in respect of the assignment of land to the petitioners. Thereafter, after following the said prescribed procedure, the competent land assignment committee has taken their considered decision as per Ext.P-13 proceedings dated 22.12.2006 to assign the land to the petitioners subject to payment of market value. When the petitioners themselves have given their consent for assignment of land only subject to payment of market value, as insisted by the respondents, then this Court fails to understand the rationale and logic of the respondents in rejecting the application of the petitioners

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W.P.(C).23542/18 - : 8 :-

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as per Ext.P-10 on the ground that the income of the petitioners has exceeded the prescribed outer limit.

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Rule 4 of the Assignment of Land within Municipal & Corporation Area Rules, 1995, framed under the enabling provisions contained in the Kerala Government Land Assignment Act, 1960, deals with the maximum extent of land to be assigned and the land value, etc. Sub rule (1) of Rule 4 of the abovesaid Rules as follows:

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“Rule 4: Maximum extent of land to be assigned and land value. (1) (a) The extent of land that may be assigned to a family for house site shall not ordinarily exceed 10 cents in Municipal areas and 5 cents in Corporation areas.

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(b)(i) The land value payable in respect of land not exceeding the limit prescribed in clause (a) shall be at concessional rates prescribed in the Kerala Land Assignment Rules, 1964 in respect of assignees whose annual family income from all sources does not exceed Rs. 1,00,000/- (Rupees one lakh).

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(ii) Those who are in possession of land in excess of the limit prescribed in clause (a) shall pay full market value of the land at the time of assignment irrespective of their family income or caste.

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(iii) In the case of assignment of land for purposes other than house sites, land value at market rate at the time of assignment shall be realised irrespective of income [x x x x] of the assignee].

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Provided that no land value shall be realised from the assignees belonging to Scheduled Castes and Scheduled Tribes.

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Note. - (1) (a) In calculating land value payable by the assignee the value of improvements, if any, effected by him in the case of occupied land shall be excluded.

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(b) The assignment of land for house site within the Corporation/Municipal areas shall be sanctioned only in such a way that fragments of less than one cent or unusable bits of small extent consequent on such assignment are avoided as far as possible.”

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Clause (a) of Rule 4(1) stipulates that the extent of land that may be

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assigned to a family for house site shall not ordinarily exceed 10 cents

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W.P.(C).23542/18 - : 9 :-

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in Municipal areas and 5 cents in Corporation areas. Clause (b)(i) of Rule 4(1) further provides that the land value payable in respect of land not exceeding the limit prescribed in clause (a) shall be at concessional rates prescribed in the Kerala Land Assignment Rules, 1964 in respect of assignees, whose annual family income from all sources does not exceed Rs.1 lakh. Sub clauses (ii) and (iii) of Clause (b) of Rule 4(1) further make it clear that those who are in possession of land in excess of the limit prescribed in clause (a) shall pay full market value of the land at the time of assignment irrespective of their family income or caste and that in the case of assignment of land for purposes other than house sites, land value at market rate at the time of assignment shall be realised irrespective of income of the assignee, etc.

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Therefore, going by the abovesaid clear provisions made in the abovesaid Rules, where the grant of land assignment is sought to be made only subject to payment of market value, then income limit of the family is not material. The said income limit would be material and relevant in cases where assignment is sought either on concessional rates as envisaged in Rule 4(1)(b)(i). Therefore, the stand taken by the respondents in the impugned Ext.P-10 that the petitioner is ineligible for assignment of land in the instant case, as

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W.P.(C).23542/18 - : 10 :-

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his income exceeds the outer limit, etc. is illegal as it is based on irrelevant considerations. Further the abovesaid Assignment of Land within Municipal & Corporation Area 1995, does not have a specific definition clause for “ family ”. Whereas the Kerala Land Assignment Rules, 1964, framed under the Kerala Government Land Assignment Act, 1960, provides for specific definition of “family” as per Rule 2(d) thereof, which defines “ family ” to include 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. It is the case of the petitioners that the petitioners, who are spouses, are leading independent life along with their children and that the father of the 1^st petitioner is living separately. The fact that the father of the 1^st petitioner may have some property, will not be relevant or material in the instant case as, at any rate, the properties of the father of the 1^st petitioner cannot be reckoned as property of the family as understood in the abovesaid Rules, etc. This Court is making this observation only to ensure that unnecessary doubts should not prolong or stall the consideration of the case of the petitioners any further. The respondents have not examined these vital and crucial aspects before they have conveyed the decision as per Ext.P-10. Accordingly, the impugned rejection order at Ext.P-10 will stand set aside and the

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W.P.(C).23542/18 - : 11 :-

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matter will stand remitted to the competent authority among respondents 2 and 3 for immediate consideration and expeditious conclusion of the decision making process in the light of Ext.P-13 recommendation of the competent Land Assignment Committee. The petitioners may submit their written submissions before respondents 2 and 3 without any further delay, along with a certified copy of this judgment. Thereafter, the 3^rd respondent will afford a reasonable opportunity of being heard to the 1^st petitioner and will take urgent steps to ensure that the matter in relation to the assignment of land to the petitioners, as discernible from Exts.P6 to P-8 and Ext.P-13 is taken to its logical conclusion and the matter is finalised without any further delay. The considered decision should thus be taken by the 3^rd respondent Tahsildar within 2 months from the date of production of a certified copy of this judgment.

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With these observations and directions, above the Writ Petition (Civil) stands finally disposed of.

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sdk+

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Sd/- ALEXANDER THOMAS, JUDGE

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W.P.(C).23542/18 - : 12 :-

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 20-07-2004 SUBMITTED TO THE 3RD RESPONDENT

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EXHIBIT P2 TRUE COPY OF THE REPORT DATED 2-5-2005 OF THE VILLAGE OFFICER, VAZHAKKALA

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EXHIBIT P3 TRUE COPY OF THE REPORT OF THE VIGILANCE OFFICER, VAZHAKKALA REGARDING THE VALUE OF LAND

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EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 8-6-2005 OF THE VILLAGE OFFICER, VAZHAKKALA

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EXHIBIT P5 TRUE COPY OF THE SALARY CERTIFICATE DATED 12-072005 ISSUED FROM THE HIGH COURT OF KERALA

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EXHIBIT P6 TRUE COPY OF THE LETTER DATED 4-10-2005 OF THE 3RD RESPONDENT

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EXHIBIT P7 TRUE COPY OF THE CONSENT DATED 15-10-2005 OF THE PETITIONERS EXHIBIT P8 COPY OF THE NOTICE DATED 8.12.2005. EXHIBIT P9 COPY OF THE PETITION DTD.11.4.17 BEFORE R2 AND CHIEF MINISTER.

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EXHIBIT P10 COPY OF THE LETTER DTD.24.8.17. EXHIBIT P11 COPY OF THE APPLICATION DTD.8.5.18 TO R2. EXHIBIT P12 COPY OF THE APPLICATION DTD.8.5.2018 TO R3. EXHIBIT P13 COPY OF THE RELEVANT PAGES OF THE MINUTES DTD.22.12.2006.

Ashakumar v. State of Kerala

Case brief

What is this about?

What did the court decide?

Ashakumar v. State of Kerala

Case brief

What is this about?

What did the court decide?

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