Appeal against dismissal of a writ petition seeking assignment of 0.50 acre of government land. The High Court held the petitioner had no heritable right because his late father never pursued the claim, plus the family income exceeded limits and the land was near a National Highway.
Writ appeal dismissed; no costs awarded to the appellant.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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.
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:
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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
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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.”
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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.
statement contending as follows:-
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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.
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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.”
record, writ court, by the impugned judgment, dismissed the writ petition, as extracted above.
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.
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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.
“ 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:
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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;
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(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,
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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.”
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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
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APPENDIX
PETITIONER'S/S EXHIBITS:
| EXHIBIT P1 | TRUE COPY BEFORE THE |
OF TAH |
APPLICA ASILDAR |
TION FOR ASSIGNMENT SUBMITTED . |
|---|---|---|---|---|
| EXHIBIT P2 | TRUE COPY ON 28.01.2 |
OF 011. |
AFFIDAV |
IT WA SWORN BY THE PETITIONER |
| EXHIBIT P3 | TRUE COPY RESPONDENT |
OF . |
REPORT | DATED 25.09.2008 OF THE 4TH |
| EXHIBIT P3A | TRUE COPY DATED 25.0 |
OF 9.20 |
SKETCH 08. |
PREPARED BY 4TH RESPONDENT |
| EXHIBIT P4 | TRUE COPY THIRD RESP |
OF ONDE |
LETTER NT. |
DATED 17.01.2009 FORWARDED BY |
| EXHIBIT P5 | TRUE COPY RESPONDENT |
OF ALO |
LETTER NG WITH |
DATED 18.05.2009 ISSUED BY 2ND ENGLISH TRANSLATION. |
| EXHIBIT P6 | TRUE COPY FIRST RESP |
OF ONDE |
LETTER NT. |
DATED 14.02.2017 ISSUED BY THE |
| EXHIBIT P7 | TRUE COPY DISTRICT C |
O OLLE |
F REPLY CTOR'S |
DATED 15.02.2018 FROM THE REDRESSAL ADALATH 2017. |
| EXHIBIT P8 | TRUE COPY ENDORSEMEN |
OF T. |
REPRESE | NTATION DATED 08.11.2018 WITH |
| EXHIBIT P9 | TRUE COPY | OF R | EPRESEN | TATION DATED 14.01.2019. |
| EXHIBIT P10 | TRUE COPY ISSUED BY |
OF SHIR |
MEDICAL DI SAI |
CERTIFICATE DATED 15.11.2002 BABA HOSPITAL, MANIPAL. |
//TRUE COPY//
P..A TO JUDGE
3 issues framed by the court
Whether the appellant is entitled to assignment of government land under Rule 7 of the Kerala Land Assignment Rules, 1964, given his continued family occupation and income limits.
Whether the right to claim land assignment by a legal representative survives the death of a previous occupant who had not pursued the right during his lifetime.
Whether the rejection of the assignment application was permissible due to the land's location near a National Highway and the family's income exceeding statutory limits.
2 provisions across 2 enactments
CLIFFORD CRASTA
STATE OF KERALA
DISTRICT COLLECTOR, KASARGOD
TAHSILDAR(LA), TALUK OFFICE, KASARGOD
VILLAGE OFFICER, KASARGOD VILLAGE OFFICE, KASARGOD
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
