Allowed

The District Collector,Thiruvananthapura v. Rikhia Beevi

Kerala HC24 Nov 2021WP(C)/5984/2011

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by the District Collector challenging a Kerala Lok Ayukta order directing land assignment. The court held that due to prolonged maladministration, the old land assignment rules applicable at the time of the application must apply rather than the amended rules, validating the assignment.

What did the court decide?

Writ petition failing, dismissed; Lok Ayukta order upheld; respondents directed to assign the property to the petitioner without further delay.

The District Collector,Thiruvananthapura Vs Rikhia Beevi — Property and Title | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 24TH DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943

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WP(C) NO. 5984 OF 2011

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THE ORDER IN COMPLAINT NO.2135/07 DATED 20.8.2010 OF THE HON'BLE KERALA LOK AYUKTA

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PETITIONER/1st RESPONDENT:

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THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM 695 043.

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RI.K.P.HARISH, SR.GOVT. PLEADER

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RESPONDENT/COMPLAINANT:

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RUKHIA BEEVI, W/O LATE MOHAMMED HANEEFA, ABDUL RAHIM MANZIL,

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1 KILLI KOLLODE PO, KULATHUMEL VILLAGE, MALAYINKEEZHU, THIRUVANANTHAPURAM 695 571.

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2 SECRETARY, KATTAKADA GRAMA PANCHAYATH-695 572.

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BY ADVS.SRI.EBY AUGUSTINE SMT.INDU SUSAN JACOB SRI.LIJU.V.STEPHEN SRI.R.T.PRADEEP SRI.S.V.PREMAKUMARAN NAIR SRI.SAJAD

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KHARIM

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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Dated this the 24^th day of November 2021

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SHAJI P. CHALY, J.

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The writ petition is filed by the District Collector, Thiruvananthapuram challenging the order passed by the Kerala Lok Ayukta in Complaint No.2135/2007 dated 20.8.2010 whereby, the Lok Ayukta allowed the complaint filed by the respondent herein namely, Rukhia Beevi and directed the District Collector, Thiruvananthapuram and the Secretary, Kattakkada Grama Panchayat to assign the property mentioned in Ext.P8 application to the respondent without further delay. It is thus challenging the legality and correctness of the order passed by the Lok Ayukta, the writ petition is filed. The paramount contention advanced by the writ petitioner is that the Lok Ayukta lacks jurisdiction to pass orders for the assignment of vast area of public land to individuals or families and since the entitlement of assignment is a question of fact and law that are to be decided by competent courts of law; as per Kerala Land Assignment Rules, 1964 before taking any decision for assignment of land the local body is to be consulted whether they require the land for development purpose; however, in the instant case, the local Panchayat has raised objections against assignment of the land and in such circumstances, the Lok Ayukta should not have passed

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a direction for the assignment of the land; as per Rule 5(1)(a) of the Kerala Land Assignment Rules, 1964 there is a maximum limit fixed for the assignment of Government land to private individuals and as per the Rules, the maximum area that can be assigned is not more than 50 cents in normal case and one acre of land in hilly tracks and therefore, the findings of the Lok Ayukta that the rule applicable was the rule that existed at the time of application for assignment is not correct.

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We have heard Sri.K.P.Harish, learned Senior Government Pleader, Sri.Liju.V Stephen, learned counsel appearing for the party respondent Smt.Rukhia Beevi and Sri.R.T.Pradeep, learned counsel appearing for the Secretary of Kattakada Grama Panchayat and perused the pleadings and materials on record.

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In view of the contention advanced by the appellant with respect to the power of the Lok Ayukta to have entertained the complaint, the primary question to be decided is whether the Lok Ayukta is vested with powers to consider the complaint filed before it seeking direction for assigning the land in favour of Rukhia Beevi.

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The Kerala Lok Ayukta Act, 1999 was introduced by the State Government to make provision for the appointment and functions of certain authorities for making enquiries into any action (including any

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omission and commission in connection with or arising out of such action) relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution of India, taken by or on behalf of the Government of Kerala or certain public authorities in the State of Kerala in certain cases and for matters connected therewith or ancillary thereto. Mal administration is defined under Section 2(k) to mean action taken or purporting to have been taken in the exercise of administrative functions in any case where,- (i) such action or the administrative procedure or practice adopted in such action is unreasonable, unjust, oppressive or improperly discriminatory; or (ii) there has been wilful negligence or undue delay in taking such action or the administrative procedure or practice adopted in such action involves undue delay”. The contention advanced by the learned Senior Government Pleader is that going by the allegations made in the complaint, the Lok Ayukta was not vested with powers to entertain the complaint and issue the directions. That apart, the learned Senior Government Pleader has further contended that going by the provisions of Act 1999 the Lok Ayukta can only make recommendations to the Government. However, in the instant case, the Lok Ayukta directed the District Collector as well as the Secretary of the Grama Panchayat to assign the property held by the first respondent in its entirety, that is an extent of one acre and 38 cents. That apart, it is

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contended that the Lok Ayukta has not taken into account the amended provisions of the Kerala Land Assignment Rules in its true spirit, and taking into account the requirement of the local Grama Panchayat. In our considered view, in order to appreciate the legality and correctness of the findings rendered by the Lok Ayukta it is better that the order of the Lok Ayukta is extracted completely:

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“The case set forth in the petition is as follows:

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Petitioner who is in possession of 50 Ares 99 sq. metres of property comprised in re-survey No 295/1 (Old survey number 304/2) of Kulathummal Village had filed petitions to the concerned authorities for obtaining assignment of the land, but in vein. She is in possession of the property for more than sixty years in continuation of its possession by her predecessors in interest. She had cultivated the entire land with coconut trees, rubber trees, tapioca plants and has also planted other items of trees in the property. She and children have no other property of their own and she and family are residing in the house situated in the property. On the basis of her long possession, occupation and cultivation of the property she submitted representations after representations since 1990 onwards to Kattakkada Grama Panchayat (fifth respondent), Tahsildar, Neyyattinkara (second respondent), District Collector, Thiruvananthapuram (first respondent) and Revenue Minister praying for assignment of the property in her favour. As all her efforts were exercise in futility, petition is filed before this Forum.

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Ext. P1 is a copy of the petition dated 13.03.1994 to the Honourable Revenue Minister and it refers to her application for assignment. It is stated that the petitioner's father and grandfather were in possession of the property for more than 90 years and she and her husband obtained the property having an extent of 1 acre and 38 cents from her father as per settlement deed No 5375 of 1961 dated 30.12.1961 of the Sub Registry Office, Kattakkada and since then she is in absolute

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possession of the property. It is stated that all the trees in the property were planted by her and her predecessors and that the application for assignment is pending before the Government as per file No 22603/U2/93 and as Kattakada Panchayat has not objected to her possession she may be granted patta for the property.

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Ext.P2 evidences the letter sent by the President of Kattakkada Grama Panchayat to Sri Cherian K. Mathew, Under Secretary, Thiruvananthapuram dated 19.07.1994 (No 528/93) informing him that though it was earlier decided not to agree to the assignment in favour of the petitioner it was reconsidered in favour of the petitioner taking into account the fact that the petitioner and her family are in possession of the property. Ext. P2 prays that urgent orders be issued for assignment of the property in favour of the petitioner.

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Ext. P3 is a copy of the letter sent by the Secretary, Department of Local Self Government dated 13.09.1994 (No 16759/C1/94) to the District Collector, Thiruvananthapuram informing him that the Panchayat has informed that they have no objection to the assignment of the land to the petitioner and steps be taken in this regard.

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Ext. P4 dated 10.04.1995 is a petition filed by the petitioner to the District Collector mentioning that she and her family are residing in the property and they are eking out their livelihood from there and to ascertain the truth she pleaded the first respondent to directly enquire into the matter and do the needful.

¶46

Ext. P5 evidences the letter dated 27.06.1995 sent by the Kattakkada Grama Panchayat (fifth respondent) to the Revenue Minister mentioning that the petitioner and her family are residing in the house situated in the property, that the possession dates back to 90 years, that the property has not vested with the Panchayat, that with regard to this land there is no record in the Panchayat and that it is not needed for the Panchayat or for any other public purpose. The letter concludes with a request to assign the property to the petitioner.

¶47

As per Ext. P6 letter No B3.66007/94/L.Dis dated 01.01.2000 the District Collector, Thiruvananthapuram (first respondent) directed

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the Tahsildar to take necessary steps to send proposal regarding the extent of land in the possession of the petitioner with sketch and mahazar. It refers to the Panchayat Committee decision favouring assignment of the property to the petitioner. On 11.01.2000 as per Ext. P7 the Tahsildar (second respondent) directed the petitioner to file the application in the prescribed form for assignment of the property. Accordingly as per Ext. P8 dated 22.02.2000 petitioner filed application in the prescribed form before the second respondent and the second respondent referred it to the Village Officer for enquiry and report with mahazar and sketch. As per Ext. P9 the Village Officer submitted report to the Tahsildar. The report shows that the petitioner has been residing in the building in the property and that it is extensively cultivated. The report mentions the existence of 5 jack trees, 18 yielding coconut trees and other trees. It also mentions tapioca cultivation, plantains, ginger, pepper etc. in the property. Existence of several other trees is also mentioned in another portion of the property. The report also states that the petitioner is in possession of the property for 40 years. Along with the report sketch prepared by the Village Officer was also appended. Second respondent issued notification under Rule 12 (1) of the Kerala Land Assignment Rules, 1964 to ascertain whether any one has objection to the assignment (Ext. P10 LAI No 152/2000/B2 dated 30.05.2000), the objection should be filed within 15 days of the date of Ext. P10. Ext. P11 dated 16.10.2000 is the report by the Village Officer which mentions that the enquiry revealed the property has not vested in the Panchayat and that no civil case is pending regarding this property.

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Petitioner relied on Ext. P12 to show that the Taluk Land Assignment Committee had approved the assignment of the property in her favour. As per Ext. P13 dated 25.11.2002 Village Officer reported to the second respondent Tahsildar that Rs 10,000/- per Are could be fixed as the market value of the property. It also states that the petitioner's husband is a cardiac patient and her son is physically handicapped and that the petitioner owns no other property. Annual income is stated to be Rs 9,600/- from the property. First respondent (District Collector) sent a report dated 16.10.2004 to the second respondent (Tahsildar) to take appropriate decision on the

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representation filed by the petitioner (Ext.P14). Petitioner sent Ext. P15 letter to the District Collector stating that despite the completion of the proceedings no order has been passed on her application for assignment.

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Learned counsel for the petitioner relying on the proceedings that have already undergone in this matter contended that this is a case where assignment can be granted in favour of the petitioner taking into account the petitioner's possession of the property in continuation of possession of her predecessors and also in view of the fact that no one had objected to it and the Panchayat Committee's decision that the property cannot be assigned lacks any legal basis and that it was not proper for the Panchayat to retract from its earlier decision and for the change of attitude of the Panchayat there is no reasonable or legal basis. Counsel submitted that the delay in assigning the land in favour of the petitioner is without any justification or any reason under the Kerala Land Assignment Act and the Rules framed thereunder.

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In the defence statement of the first respondent it is stated that as per the report of the Tahsildar various kinds of trees are cultivated in the property and that petitioner and her family are residing in the building situated in the property constructed by them and assigning total extent of property claimed by her cannot be legally upheld. It is further stated that even though the President of the Panchayat had recommended on 20.09.1995 that the property can be assigned to the petitioner, the Panchayat Committee had taken decision against assigning the property (Decision No. II (12) dated 28.06.2000) and hence the request of the petitioner cannot be allowed as the consent of the Panchayat is required for assignment of goverment land to private parties. It is admitted that pursuant to Rule 12 (1) notification no objection was received from any one against assigning the property to the petitioner. Mainly on the ground that Panchayat has not consented to the assignment first respondent took the stand that the property cannot be assigned in favour of the petitioner.

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Respondents 4 and 5 filed defence statement stating that the property is puramboke and that it is highly necessary for the developmental activities of the Panchayat. It is stated that the

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Panchayat took no decision to assign the property in favour the petitioner.

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Learned Government Pleader submitted that as per Section 3 (2) of the Kerala Land Assignment Act, 1960 consent of the local body is and indispensable one and in this case Panchayat Committee has decided that the property should not be assigned to the petitioner and hence the petition is liable to be dismissed. Reliance was placed on Section 3 (2) which states that 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 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. From a reading of the Section it is clear that it refers only to Government land assignable for public purpose. As this is not a case of Government land assignable for public purpose it cannot be held that consent of the Panchayat is essential. That apart, Panchayat has already stated that they have no objection to the assignment of land to the petitioner. Ext. P2 letter sent by the President of the Panchayat unambiguously shows that the property in the possession of the petitioner may be assigned to her.

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In the defence statement filed by respondents 4 and 5 they have no case that Ext. P2 letter was sent not based on requisite resolution to that effect by the then Panchayat Committee. So long as it is not it so, it is beyond comprehension as to how the present stand is taken by the Panchayat that the property cannot be assigned and for that there is no proper explanation in the defence statement of respondents 4 and 5. Though it is stated in the defence statement of respondents 4 and 5 that the Panchayat never took any decision to assign the property to the petitioner it is indeed difficult to accept the belated stand as the Panchayat has not produced; any documentary evidence or any other material in support of the present stand.

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Learned counsel for the petitioner mentioned that even if such consent on the part of the Panchayat is assumed to be essential it is indeed difficult to be accepted as the property has not vested with the Panchayat and as the assignment is not for any public purpose. Ext. P5 letter sent by the President of the Panchayat on 27.06.1995 shows that

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the property has not vested with the Panchayat under Section 149 and 82 of the Panchayat Raj Act. This is also an added factor to hold that the change in the attitude of the Panchayat as reflected in the defence statement of respondents 4 and 5 is not bonafide or based on correct factual data.

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Learned Government Pleader next contended that in view of Rule 6 of the Rules the extent of Government land that shall be registered in favour of a family as house site shall not exceed fifteen cents. Rule 4 applies only for assignment of government land for house site and for beneficial enjoyment. Petitioner's application is not for house site or beneficial enjoyment. As admittedly the petitioner resides in the house in the property her application can only be for assignment of the Iand in her possession as it is specifically stated that she is in possession of the property and that too since a long time (vide Ext.P8).

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As the application filed by the petitioner has to be considered as one under Rule 5 of the Rules the question to be considered is how much extent of land can be assigned to such an applicant. Rule 5(1)(a), as it stands now, stipulates that the extent of land that shall be registered in favour of a single family for personal cultivation by members of the family shall not ordinarily exceed fifty cents in the case of unoccupied lands, whether wet or dry, in the plains and not more than one acre of wet or dry land in hilly tract. Rule 5 (1)(b) states that in the case of lands held on lease, whether current or time expired or by way of encroachment not considered objectionable, the encroacher 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. Government Pleader therefore submitted that in any case assignment cannot exceed more than 50 cents.

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Learned counsel for the petitioner pointed out that this is a case of encroachment not considered objectionable by any authority and as the petitioner's application (Ext. P8) was filed on 22.02.2000 this being a proper application in the prescribed form, Rule 5 (1) (b) as it stood before its substitution alone has the application and hence the extent as provided in the substituted rule has no application.

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Rule 5 (1) (a) was substituted by notification No G.O.(P) No 63/2005/RD dated 03.03.2005 published as SRO No 545/2005 in K.G. Ext. No 1204 dated 27.05.2005. Prior to the substitution it read as follows:

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"in the case of unoccupied lands, not more than one acre of land whether wet or dry, in the plains and not more than one acre of wet land or three acres of dry land in hilly tracts."

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Rule 5 (1) (b) as it stands now is substituted by notification G.O.(P) No 63/2005/RD dated 03.03.2005. Prior to its substitution it read follows:

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"(b) in the case of lands held on lease whether current or time expired or by way of encroachment not considered objectionable,-

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(1) where there are no valuable improvements effected on the land by the occupant, not more than one acre of land, whether wet or dry, in the plains and not more than one acre of wet land or three acres of dry land in hilly tracts;

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(ii) where there are valuable improvements effected on the land by the occupant, not more than two acres of land wet or dry in the plains and not more than two acres of wet land or four acres of dry land in hilly tracts."

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Indisputably petitioner had filed application for assignment long prior to the aforesaid substitution to the rule. That being the position, the rule as it stood then, has to be necessarily applied. In case there was no delay on the part of the concerned authorities petitioner could have obtained assignment of the land in her favour as per then existing rules. As the delay cannot at all be attributed to the petitioner we; hold that Rule 5, as it stood at the time when the application was filed, applies and not the present rule substituted much later. The substituted Rule cannot be applied to the disadvantage of the petitioner. As admittedly this is a case of encroachment upon poramboke land not found objectionable hitherto by any authority we hold that the petitioner is entitled to the assignment of land sought by her.

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It is also pertinent to note that the Taluk Land Assignment Committee had approved the assignment of the land to the petitioner as per Ext. P12. Ext.P12 shows that a unanimous decision was taken by

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the Committee. Rule 12 A (vi) states that the advice of the Committee supported by not less than 3/4 of the members present shall be accepted and given effect to by the Tahsildar and in case where the committee fails to reach the decision as aforesaid with the required majority, the Tahsildar shall assign the land according to rules. As Ext. P12 evidences no dissent among the committee members and as all of them were in favour of the petitioner it is mandatory for the Tahsildar to accept the advice of the committee and give effect to it. It definitely is a circumstance in favour of the petitioner to obtain assignment of the land.

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Rule 5 (1)(b) (ii) as it stood prior to the amendment provides that where in case encroachment is not considered objectionable and when there are valuable improvements effected on the land by the occupant, not more than two acres of land, whether wet or dry, in the plains and not more than two acres of wet land or four acres of dry land in hilly tracts is assignable to the applicant. As there is evidence of valuable improvements effected in the property, contention of the Government Pleader on the basis of Rule 5 as it stands now, is not tenable.

¶84

Considering all the aspects of the matter, we direct respondents 1 and 2 to assign the property mentioned in Ext P8 application to the petitioner without any further delay.

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For action taken report, post on 01.11.2010.”

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Going by the facts deciphered by the Lok Ayukta, it is clear that the first respondent had a contention that the property was in possession of the predecessor in interest of the first respondent for the past several decades and even though applications were filed for assignment of the land and suitable recommendations were made by the statutory authority as per the provisions of the Kerala Land Assignment Act, 1960 and the Kerala Land

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Assignment Rules, 1964 no sufficient steps were taken to grant the assignment and issue patta to the predecessor in title of the first respondent or the first respondent. On a deeper analysis of the facts and circumstances, it is clear that in spite of the pendency of the application for assignment and the recommendations made by the statutory authority as per the Act 1960 and the Rules 1964, there was a clear lethargic attitude from the part of the statutory authorities in granting assignment. Therefore, it can be seen that it is a clear mal-administration as defined under the Kerala Lok Ayukta Act, 1990. Therefore, the contention advanced by the learned Senior Government Pleader that the Lok Ayukta did not have power to consider the complaint cannot be sustained under law. On a perusal of the order passed by the Lok Ayukta, it is clear that the Lok Ayukta has considered the issue threadbare taking into account the provisions of the Act, 1960 and the Rules, 1964.

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In order to identify the legality of the order passed by the Lok Ayukta, it is better that some of the relevant provisions of the Land Assignment Act, 1960 and the Rules, 1964 are discussed. Section (2)(b) defines the assignee which “includes his heirs”. Therefore, the first respondent Rukhia Beevi, who has claimed to be the legal heir of the occupier of the property in question, is a person entitled to assignment

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under the Act 1960. Assignment of Government land is dealt with under Section 3, which reads thus:

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Assignment of Government land. --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.

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[(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 requires such land, for carrying out any of the functions assigned to it, Government may set apart such land for that purpose”]

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Explanation.--Any restriction as to alienation, whether voluntary or otherwise , of the rights of the assignee, shall be a restriction within the meaning of this section.

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Section 4 deals with 'procedure to be followed before Government lands are assigned'. Sub Section 1 thereto specifies that when any Government land is proposed to be assigned by the prescribed authority, otherwise than by way of a lease or license, the Tahsildar of the taluk in which the land is situate or any officer empowered by the Government in this behalf shall notify in the prescribed manner that such land will, by public auction or otherwise, be assigned, and call upon those who have got any claim to such land to prefer to him their objections, if any, in writing within a time which shall be specified in such notification. Sub Section 2 thereto specifies that if any objection is preferred within the time specified

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in the notification, the Tahsildar or such other officer shall enquire into the same and pass an order in writing either accepting or rejecting the claim in full or in part and intimate in writing the fact of such disposal to the claimant.

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Section 5 deals with 'order of assignment' which stipulates that (a) when the time fixed in the notification under Sub Section (1) of Section 4 has elapsed and no objection has been preferred; or (b) when any objection preferred is rejected and – (i) the time for preferring an appeal from the order has elapsed and no appeal has been preferred; or (ii) when an appeal has been preferred and the appeal is, rejected by the appellate authority, the land may, subject to such rules as may be made by the Government in this behalf, be assigned by the prescribed authority. The State Government has made the Land Assignment Rules by virtue of the powers conferred under Section 7 of the Kerala Land Assignment Act, 1960 in supersession of the erstwhile rules. Rule 2 (cc) of the Kerala Land Assignment Rules, 1964 defines “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. 'Government land' is defined under Rule 2(e) to include lands belonging to the Government and available for assignment as per lists prepared by the

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Revenue Department and approved by the competent authority under the Rules and such other lands as may be set apart for the purposes of the Rules. Rule 4 deals with the 'purposes for which the land may be assigned' which states that Government lands may be assigned on registry for purposes of personal cultivation, house-sites and beneficial enjoyment of adjoining registered holdings. Rule 5 as it originally stood deals with 'maximum limit to be assigned for cultivation' and sub Rule (1) thereto states that the extent of land that shall be registered in favour of a single family for personal cultivation by members of the family shall not ordinarily exceed--(a) in the case of unoccupied lands, not more than one acre of land, whether wet or dry, with the plains and not more than one acre of wetland or three acres of dry lands in hilly tracts. However, as per the amendment dated 3.3.2005 clause (a) of Rule 5(1) reads thus: “in the case of unoccupied lands, not more than 50 cents of land, whether wet or dry in the plains and not more than one acre of wetland or three acres of dry land in hilly tracts.”

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Admittedly, as held by the Lok Ayukta recommendations were made for assignment of the land by the statutory authority under the Act, 1960 and the Rules, 1964 in favour of the first respondent as per an application submitted on 19.07.1994 , ie .much before the amendment

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specified above .

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The Lok Ayukta after assimilating the factual situation has found that even though amendment was brought in the year 2005, application was pending before the statutory authority for long i.e., almost ten years, and in spite of the recommendations made no final decision was taken and therefore, the issue had to be considered taking into account Rule 5(1)(a) as it originally existed, which finding cannot be said to be irrational, illegal or arbitrary for the primary reason that the maladministration defined under Act 1999, is incorporated therein and designed accordingly for the purpose

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of eliminating such unethical and protracted attitude of the State Government and its officials.

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Rule 12 deals with the enquiry to be held in the matter of assignment of the land which reads thus:

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12. Enquiry to be held,

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[(1) Before considering an application for assigning the land, the Tahsildar shall publish a notice under his signature inviting objections in writing from interested persons to the registry of land. The notice shall be in the form in Appendix V to these rules and give a minimum of fifteen days' time from the date of publication for preferring objections and the Tahsildar may, in his discretion, admit objections received after that period. The notice shall be published by affixture in a conspicuous place in the land concerned and also in the Village Panchayat and Taluk offices and such publication shall be deemed to be legal and sufficient for purposes of these rules].

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(2) Application by persons in possession for the assignment of land

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involved in Kuthakapattam and Land Conservancy cases may be disposed of by the Tahsildar, if the applicants are eligible to get the land on assignment under these rules and if there is no pronounced disparity regarding the particulars of the land as furnished in the case of records and as found in actual occupation.

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(3) The list of assignable lands and the list of lands to be reserved for Government or public purposes are to be placed before the Taluk Land Assignment Committee for its recommendation and to be forwarded to the District Collector for approval. The applications received for assignment on registry shall be duly enquired into by the Tahsildar and placed before the Taluk Land Assignment Committee for considering its merits. The reasons for rejection, if any, should be recorded in writing. In cases where the orders of the District Collector have to be obtained, the Tahsildar shall submit the case to the District Collector along with the recommendation of the Taluk Land Assignment Committee].

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(4) On receipt of application for the assignment of lands under clause (iii) of the proviso to sub-rule (3) of rule 5, the District Collector shall as far as may be, follow the procedure laid down in sub-rules (1), (2) and (3) and, if he is satisfied that it is in public interest so to do, he shall assign such excess lands as admissible under these rules.

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Rule 12A(i) specifies that notwithstanding anything contained in sub-rules (3) and (4) of Rule 12, the Government may constitute for each Taluk, a Committee called the Taluk Land Assignment Committee which may consist of officials and non-officials, for advising the Tahsildar in regard to the assignment on registry of lands available for assignment (vide the Rule 11) for personal cultivation or house sites. Rule 12A deals with the Taluk Land Assignment Committee which reads thus:

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[12A .(i) Notwithstanding anything contained in sub-rules (3) and (4) of Rule 12, the Government may constitute for each Taluk, a Committee called the Taluk Land Assignment Committee which may consist of officials and non-officials, for advising the Tahsildar in regard to the assignment on registry of lands available for assignment (vide Rule 11) for personal cultivation or house sites.

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(ii) The Taluk Land Assignment Committee shall ordinarily have the following members:-

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(1) One representative each of all the political parties who have representative(s) in the Legislative Assembly, (in case the State Committee of a party desires to change its nominee in any Taluk Committee, the State Committee may intimate the fact to the Government in writing, and the change shall accordingly be given effect to by the Government).

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(2) Members of Parliament/Members of Legislative Assembly representing the Taluk or any part of the Taluk.

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(2)(a) The President of the concerned Grama Panchayat and the Block Panchayat and the members representing the concerned area in the District Panchayat].

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(3) One Harijan member to be nominated by the Government.

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(4) The Tahsildar of the Taluk.

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(5) The Special Tahsildar or the Special Tahsildar for Assignment, if any, of the Taluk,

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(iii) The Tahsildar of the Taluk (or the Special Tahsildar for Assignment, if specifically ordered so by the District Collector in respect of any Committee) shall be the Convener of the Committee and shall preside over the meeting of the committee.

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(iv) Not less than [1/5] of the total number of members of the Committee shall constitute the quorum for the meeting of the committee.

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(v) The committee shall consider applications for assignment of land on registry for personal cultivation or house sites. Only those lands which are listed as available for assignment under Rule 11 of the Kerala Land Assignment Rules, 1964. shall come within the purview of the Committee. The Tahsildar shall place before the Committee all applications for registry of land of the aforesaid category, along with the

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relevant records of enquiry under Rule 12. After consideration of the application as also the records of enquiry, particularly, the objections or claims if any, the committee shall give their advice strictly according to the preference stated in the rules as to the persons to whom the particular lands may be assigned. The Committee will indicate the survey number, extent and such other particulars as are necessary to identify the lands proposed to be assigned in each case. The assignment of lands to institutions, companies, for commercial purposes and for schemes will be outside the purview of the Committee.

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(vi) The advice of the committee supported by not less than 3/4 of the members present shall be accepted and given effect to by the Tahsildar. In cases where the Committee fails to reach the decision as aforesaid with the required majority, the Tahsildar shall assign the land according to rules].

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(via) Notwithstanding anything contained in sub-rules (iv), (v) and (vi), if at any meeting there is not sufficient number of members present to form the quorum, the Tahsildar or the Special Tahsildar, as the case may be, shall assign the lands, the applications for assignment of which were proposed to be placed before the Committee at that meeting, according to rules].

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(vii) Provisions relating to appeals and revisions will apply to all cases of assignment resorted to on the advice of the Land Assignment Committee also.

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(viii) The Committee shall have right to bring to the notice of the Tahsildar any case of assignment in the past to persons who are not eligible according to rules within a period of two years from the date of the final order assigning the land on registry. Such cases together with the records, if any, are to be placed before the Committee for its consideration, and if the Committee recommends cancellation of such assignment, the Tahsildar shall forward the records together with the recommendation of the Committee to the Board of Revenue for its decision.

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(ix) The members of the Committee shall not be given any travelling allowance or daily allowance in connection with their sittings].

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Therefore, the legal position with respect to the assignment of a land is very clear. It is explicit and evident from the provisions of the rules and the order rendered by the Lok Ayukta that the Taluk Land Assignment Committee has recommended assignment of the land in favour of Rukhia Beevi. It is clear from the order passed by the LokAyukta that the documents produced by Rukhia Beevi would prove that recommendations were made by the Committee after conducting due enquiry.

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Learned Senior Government Pleader submitted that the Lok Ayukta has not taken into account the requirement of the local Panchayat for public purpose. However, from the record of proceedings and from the counter affidavit filed by the first respondent in this writ petition along with the necessary documents that was produced before the Lok Ayukta, we are of the clear opinion that when the application for assignment was submitted by the respondent as early as on 19.7.1994, the President of the Panchayat has issued a communication stating that the request made by Rukhia Beevi is approved by the Panchayat and the Panchayat is not in requirement of 1 acre and 38 cents of the property occupied by Rukhia Beevi and her family. Even Though a contention is raised by the learned Senior Government Pleader that the President of the Grama Panchayat has issued the letter in question without the approval of the Panchayat

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Committee, we are of the view that the letter written by the President of the Grama Panchayat was for and on behalf of the Grama Panchayat and which letter could not have been collaterally challenged by the Panchayat and the District Collector after several years from the issuance of the same. That apart, Rule 12A of the Rules 1964, was brought into force on and w.e.f 13.1.1969, makes it clear that the President of the concerned Grama Panchayat, the Block Panchayat and the members representing the concerned area in the District Panchayat were members of Taluk Land Assignment Committee apart from other officials of the State Government, Members of Parliament and Members of Legislative Assembly. Therefore, it can be seen that the said body constituted for conducting due enquiry and making recommendations for grant of assignment is a superior body than the President of the Grama Panchayat or the Grama Panchayat as such and therefore, when a recommendation is made by such a superior body, the Panchayat cannot later turn around and contend that the property was required for the purpose of the Grama Panchayat.

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Learned counsel appearing for the first respondent has also submitted that since recommendations were made by the Taluk Assignment Committee in which the representative of the District Collector is a member, the District Collector cannot be said to be an aggrieved person.

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We find force in the said contention also especially, due to the fact that along with the counter affidavit filed by the first respondent, a communication dated 1.1.2000 issued by the District Collector, Thiruvananthapuram is produced written in vernacular language, making it clear that the District Collector has directed the Tahsildar, Neyyattinkara to forward necessary details with respect the property to be assigned to the first respondent along with sketch and mahazar for assignment.

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Even Though learned senior Government Pleader has invited our attention to the Division Bench judgment of this court in Sudha Devi.K v. District Collector, Thiruvananthapuram and others [2017 (2) KHC 850] , to canvas for the proposition that the Lok Ayukta has no power to decide an issue relating to a civil dispute, and that no positive directions much less of peremptory nature can be issued, we are of the view that the directions were rendered by the Division Bench of this court taking into account the fact situation therein on the basis of a dispute of a civil nature, which may not have much application and bearing to the issues involved in the case on hand, on the basis of clear cut rules guiding the issue, and the specific power enjoyed by the Lok Ayukta in the matter of maladministration .

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Taking into account the aforesaid legal aspects, and the factual findings rendered by the Lok Ayukta, we are of the clear opinion that the

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conclusions arrived at by the Lok Ayukta with respect to the entitlement of Rukhia Beevi to get the land in question assigned in her favour, is unassailable in all respects, and that the Lok Ayukta has passed the said order bearing in mind the distinct provisions of the Act 1960 and the Rules 1964. It is true, the powers conferred on the Lok Ayukta under the Kerala Lok Ayukta Act, 1999 is a recommendatory power, however the Lok Ayukta has issued directions to the State Government to assign the land in favour of Rukhia Beevi.

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In our considered opinion, merely because such a direction was issued by the Lok Ayukta that cannot be said to be bad for the reason that the Lok Ayukta has passed such a direction on the basis of the rule position in accordance with the provisions of Act, 1960 and Rules . To put it otherwise, the findings rendered by the Lok Ayukta are absolutely legal in nature and viewed so, it is not liable to be interfered with in any manner. We are also of the view that even if the findings rendered by the Lok Ayukta is to be treated as recommendatory, nothing prevents or detain this court to give effect and enforce the recommendation exercising the powers conferred under Article 226 of the Constitution of India in order to render justice to a person who is a victim of red tapism employed by the State Officials for the past more than two and a half decades in spite of her entitlement to get the

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property assigned. Whatever that be, we do not find any reason to interfere with the order passed by the Lok Ayukta in view of the legal position discussed above. Needless to say the writ petition fails and accordingly, it is dismissed.

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sd/- S.MANIKUMAR CHIEF JUSTICE

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sd/- SHAJI P. CHALY JUDGE

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jes

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APPENDIX