Allowed

Narayana Rai v. Suguna

Kerala HC23 Aug 2023RSA/998/2012

Case brief

AI extract

What is this about?

A writ petition challenged the cancellation of a 1979 land assignment patta. The Court set aside the cancellation, holding it was based on income and property conditions inserted into the Rules in 1989, which could not apply retrospectively. It also found that the assignee herself owned no other land, and the respondents' Kumki claim was unsubstantiated. The connected second appeal was also allowe

What did the court decide?

Exts.P3 to P6 set aside; judgment and decree in AS No.40 of 2004 set aside; appellants entitled to relief granted in OS No.234 of 1996.

Narayana Rai Vs Suguna — Land Acquisition | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

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WEDNESDAY, THE 23^RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945 WP(C) NO. 26338 OF 2008

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PETITIONER/S:

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1 SMT.NALINAKSHI, W/O. NARAYANA RAI, RERSIDING AT BATTAKALLU, UJARU ULUVAR VILLAGE, KASARAGODE TALUK, P.O.KIDOOE. (DIED)

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SUPPL.P2 NARAYANA RAI, H/O. NALINAKSHI, BATTEKALLU, ULVAR VILLAGE.P.O., KIDOOR, KASARAGOD TALUK -671 321.

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SUPPL.P3 MANJUNATHA N.RAI, FLAT NO.4, PLOT NO.RH 38, MLDC, DOMBIVALLI (E), MUMBAI -421 203.

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SUPPL.P4 PUSHPA.M.RAI, D 203, CHANDRESH PARK, LODHA HERITAGE, DESHPADA NANDIRALI, DOMBIVALLI, MUMBAI-421203.

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SUPPL.P5 PRAPULLA D.RAI, D/O.NALINAKSHI, BATTEKALLU, UJARA ULVAR VILLAGE, P.O.KIDOOR, KASARAGOD TALUK-671321.

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SUPPL.P6 HARINAKSH S.SHETTY, D/O.NALINAKSHI, BATTEKALLU, UJARA ULVAR VILLAGE, P.O.KIDOOR, KASARAGOD TALUK-671321.

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SUPPL.P7 RATNAKAR RAI.B.N., S/O.NALINAKSHI, BATTEKALLU, UJARA ULVAR VILLAGE, P.O.KIDOOR, KASARAGOD TALUK-671321.

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*SUPPLEMENTAL PETITIONERS 2 TO 7 ARE IMPLEADED AS PER ORDER DATED 15.10.2012 IN IA 13563/2012

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BY ADVS.

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SRI.K.LAKSHMINARAYANAN SMT.SATHYASHREE PRIYA EASWARAN

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WP(C) No.26338/2008 & RSA No.998/2012

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..2..

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RESPONDENT/S:

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1 STATE OF KERALA, CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.

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2 COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-33

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3 REVENUE DIVISIONAL OFFICER, KASARAGODE.

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4 TAHSILDAR, KASARAGODE.

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5 SMT. REVATHI, WO. VITTAL SHETTYRESIDING AT KARINJA, ICHILAMPADY VILLAGE,, KASARAGODE TALUK, POST ICHILAMPADY.

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6 MAHALINGA ALVA, S/O. KARIYAPPA ALVA RESIDING AT KARINJA, ICHILAMPAPDY VILLAGE,, KASARAGODE TALUK, POST ICHILAMPADY. (DIED)

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7 VISHWANATHA ALVA, S/O.KARIYAPPA ALVARESIDING AT KARINJA, ICHILAMPADY VILLAGE,, KASARAGODE TALUK, POST ICHILAMPADY.

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8 SHANKAR RAI, S/O. GOWRI RESIDING ATKARINJA, ICHILAMPADY VILLAGE, KASARAGODE TALUK,, POST ICHILAMPAPDY.

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ADDL.R9 SUGUNA, W/O.MAHALINGA ALVA, KARINJE HOUSE, ICHILAMPADY VILLAGE & P.O., KASARGOD TALUK, KASARGOD DISTRICT -671321.

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ADDL.R10 RAMAKRISHNA ALVA, S/O.MAHALINGA ALVA, KARINJE HOUSE, ICHILAMPADY VILLAGE & P.O., KASARGOD TALUK, KASARGOD DISTRICT -671321.

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ADDL.R11 BALAKRISHNA ALVA, S/O.MAHALINGA ALVA, KARINJE HOUSE, ICHILAMPADY VILLAGE & P.O., KASARGOD TALUK, KASARGOD DISTRICT -671321.

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WP(C) No.26338/2008 & RSA No.998/2012

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..3..

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ADDL.R12 SHIRARAMA ALVA, S/O.MAHALINGA ALVA, KARINJE HOUSE, ICHILAMPADY VILLAGE & P.O., KASARGOD TALUK, KASARGOD DISTRICT -671321.

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ADDITIONAL RESPONDENTS 9-12 ARE IMPLEADED AS PER ORDER DATED 27.08.2013 IN IA 13564/2013

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BY ADVS. SRI.P.P.RAMACHANDRAN SRI.V.V.ASOKAN SMT.S.AMINA GOVERNMENT PLEADER SRI.P.P.RAMACHANDRAN

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OTHER PRESENT:

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SMT. MARY BEENA JOSEPH -SR.GP

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23.08.2023, ALONG WITH RSA.998/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) No.26338/2008 & RSA No.998/2012

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..4..

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

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WEDNESDAY, THE 23^RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945

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RSA NO. 998 OF 2012

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JUDGMENT IN AS 40/2004 OF ADDITIONAL DISTRICT COURT

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(ADHOC)-I, KASARAGOD

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OS 234/1996 OF ADDITIONAL MUNSIFF COURT, KASARAGOD

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APPELLANTS/RESPONDENTS/LR's OF SOLE PLAINTIFF:

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1 NARAYANA RAI, H/O. NALINAKSHI, BATTEKALLU, UJARA ULVAR VILLAGE, P.O. KIDOOR, KASARAGOD TALUK.

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2 MANJUNATHA N. RAI, FLAT NO.4, PLOT NO.RH 38, MLDC, DOMBIVALLI (E), MUMBAI-421203.

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3 PUSHPA M RAI, D 203, CHANDRESH PARK, LODHA HERITAGE, DESHPADA NANDIRALI, DOMBIVALLI, MUMBAI-421203.

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4 PRAPULLA D RAI, D/O NALINAKSHI, BATTEKALLU, UJARA ULVAR VILLAGE, P.O. KIDOOR, KASARAGOD TALUK.

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5 HARINAKSH S SHETTY, D/O NALINAKSHI, BATTEKALLU, UJARA ULVAR VILLAGE, P.O. KIDOOR, KASARAGOD TALUK.

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6 RATNAKAR RAI B.N., S/O NALINAKSHI, BATTEKALLU, UJARA ULVAR VILLAGE, P.O. KIDOOR, KASARAGOD TALUK.

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(APPELLANTS ARE LEGAL REPRESENTATIVES OF SMT.NALINAKSHI (ORIGINAL PLAINTIFF IN THE SUIT/RESPONDENT IN AS) WHO DIED ON 03.04.2012.

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..5..

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WP(C) No.26338/2008 & RSA No.998/2012

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BY ADVS.

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SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN

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RESPONDENTS/APPELLANTS/LR's OF SOLE DEFENDANT:

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1 SUGUNA, W/O MAHALINGA ALVA, KARINJE HOUSE, ICHILAMPADY VILLAGE AND P.O., KASARGOD TALUK, KASARGOD DISTRICT-574229.

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2 RAMAKRISHNA ALVA, S/O MAHALINGA ALVA, KARINJE HOUSE, ICHILAMPADY VILLAGE AND P.O., KASARGOD TALUK, KASARGOD DISTRICT-574229.

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3 BALAKRISHNA ALVA, S/O MAHALINGA ALVA, KARINJE HOUSE, ICHILAMPADY VILLAGE AND P.O., KASARGOD TALUK, KASARGOD DISTRICT-574229.

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4 SHIRARAMA ALVA, S/O MAHALINGA ALVA, KARINJE HOUSE, ICHILAMPADY VILLAGE AND P.O., KASARGOD TALUK, KASARGOD DISTRICT-574229.

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(RESPONDENTS ARE LEGAL HEIRS OF MAHALINGA ALVA (ORIGINAL DEFENDANT IN THE SUIT/APPELLANT IN AS) WHO DIED ON 03.04.2012)

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BY ADVS. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23.08.2023, ALONG WITH WP(C).26338/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) No.26338/2008 & RSA No.998/2012

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..6..

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JUDGMENT

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WP(C) No.26338 of 2008 has been filed by the

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original petitioner with the following prayers;

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“a) issue a writ of certiorari or other writ or order quashing Exhibits-P3 to P6 as the same are not in accordance with the Land Assignment Rules or the due procedure established by law.

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b) issue a writ, order or direction declaring that the land assigned to the petitioner as per Land Assignment order No.1A177/74 dated 30-06-78 is final and reopening the same after about nine years after the date of assignment is barred by limitation.”

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The original petitioner in WP(C) No.26338

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of 2008 was assigned with one acre of land in RS No.118/1E of Ichilampady Village as per order No.IA 177/79 dated 30.06.1979 (wrongly shown as “30.06.1978” in the writ petition) by the Special Tahsildar (LA), Kumbala. When the sixth respondent attempted to trespass into the said property, she filed OS No.234/1996 before the Munsiff Court, Kasaragod. The suit was decreed as per Ext.P1, restraining the sixth respondent from

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WP(C) No.26338/2008 & RSA No.998/2012

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trespassing into the property or committing waste therein, against which AS No.40 of 2004 was filed

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by the sixth respondent before the Additional District Court ( Ad Hoc )-I, Kasaragod. During the pendency of WP(C) No.26338 of 2008, AS No.40 of 2004 was allowed. It is challenging this, RSA No.998 of 2012 has been filed by the legal heirs of the original petitioner/supplemental petitioners 2 to 7 in WP(C) No.26338 of 2008.

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For convenience, WP(C) No.26338 of 2008

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is taken as the leading case and the parties are referred to, as they are arrayed in WP(C) No.26338 of 2008.

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Against the order of assignment of one acre of land in RS No.118/1E of Ichilampady Village as per order No.IA 177/79 dated 30.06.1978 in favour of the original petitioner by the Special Tahsildar (LA), Kumbala dated 30.06.1978, party respondents filed appeal before the third respondent, alleging that out of the

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WP(C) No.26338/2008 & RSA No.998/2012

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..8..

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one acre property assigned to the original petitioner, an extent of 20 cents was in their possession and enjoyment and the same is not

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liable to be assigned to the original petitioner. The said appeal filed after nine years of the

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order of assignment, was allowed as per order dated 20.10.1998 and the matter was remanded for fresh consideration. On remand, after an enquiry, the Village Officer, Ichilampady reported that out of the one acre of property, an extent of 20 cents is in possession and enjoyment of the fifth respondent and the balance of 0.80 acre of property is vacant. It was also reported that the husband of the original petitioner is in possession of 2.41 acres of land in RS No.48/2pt, 0.45 acres in RS No.45/5pt, 0.02 acres in RS 48/3pt and 1.94 acres in Bombrana Village and her annual family income is Rs.21,600/-. On the basis of the said report, the Tahsildar, as per Ext.P3, cancelled the order of assignment. Challenging

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WP(C) No.26338/2008 & RSA No.998/2012

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Ext.P3, the original petitioner filed an appeal before the third respondent – Revenue Divisional Officer, which was dismissed as per Ext.P4. Against Ext.P4, a further appeal was filed before the second respondent – Commissioner of Land Revenue, which also ended in a dismissal as per Ext.P5. Thereafter, the petitioner filed a revision petition before the Government, but, the same was rejected as per Ext.P6, stating that the revision petition is not maintainable. Aggrieved by Exts.P3 to P6, WP(C) No.26338 of 2008 has been filed.

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Pending writ petition, the original

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petitioner and the sixth respondent expired. The legal heirs of the original petitioner are

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impleaded as supplemental petitioners 2 to 7 and the legal heirs of the sixth respondent are impleaded as additional respondents 9 to 12.

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The second respondent – Commissioner of

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Land Revenue – filed a counter affidavit,

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WP(C) No.26338/2008 & RSA No.998/2012

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..10..

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contending that on appeal filed by respondents 5

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to 8 against the assignment order, the case was

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remanded for fresh consideration and further enquiry revealed that Kadim land in RS No.123/1 and 123/3 of Ichilampady Village, which is the family property of the fifth respondent, is lying adjacent to the assigned land in RS No.118/IE of Ichilampady Village. On remand of the appeal filed by respondents 5 to 8, the Tahsildar conducted an enquiry through the Village Officer, which revealed that the husband of the petitioner is in possession of 2.41 acres of land in RS No.48/2pt, 0.45 acres in RS No.45/5pt, 0.02 acres in RS 48/3pt and 1.94 acres in Bombrana Village and her annual family income is Rs.21,600/-, which exceeds the ceiling limit of Rs.10,000/-. It was further reported by the Village Officer that out of the said one acre of land assigned in favour of the original petitioner, 20 cents of land is in possession of the fifth respondent by

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WP(C) No.26338/2008 & RSA No.998/2012

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..11..

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effecting improvements such as establishing arecanut and growing paddy. Hence, the assignment

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made in favour of the original petitioner was cancelled by the assigning authority as per proceedings No.IA 177/79/Ichilampady dated 16.08.2003, observing that the said assignment was made on misrepresentation of facts. The appeals filed by the original petitioner against the cancellation of assignment did not find any result. The revision petition filed before the Government was also dismissed due to lack of revisional power to revise the order passed by the Commissioner of Land Revenue. It is contended that the appeals filed by the petitioner against the said order were dismissed after perusing the connected records in detail. Hence, according to the second respondent, the order cancelling assignment is strictly in accordance with the existing rules under the Kerala Land Assignment Rules, 1964 (for short, “the KLA Rules”). It is

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WP(C) No.26338/2008 & RSA No.998/2012

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..12..

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further contended that the appellate authority has its own discretionary power to entertain an appeal on proper grounds after condoning the delay, if any, in filing the appeal and the order of assignment once issued can be reconsidered, if

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it is satisfied that the same was made by suppressing or misrepresenting facts. The averment that the assignment of land in favour of the petitioner was made in the year 1978, was denied, pointing out that the records of enquiry would show that the assignment was on 30.06.1979 as per order No.LA-177/79/Ichilampady. It is further pointed out that the assignment was as per Rule 4 of the KLA Rules for house site and cultivation and the assignee violated the conditions under Rule 8(2) of the KLA Rules without cultivating the land and without residing on it within the stipulated time. It is further contended that the enquiry and site inspection revealed that out of the one acre of land

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WP(C) No.26338/2008 & RSA No.998/2012

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..13..

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assigned to the petitioner, 0.80 acre was lying

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vacant and the balance 0.20 acre was in the

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possession and enjoyment of the fifth respondent in clear violation of Rule 8(2) of the KLA Rules, which itself is sufficient for cancellation of the assignment order. According to the second respondent, the family of the petitioner possesses other properties and her annual family income exceeds the ceiling limit of Rs.10,000/and the assignee neither cultivated the land nor built any residential house even after the eight years of assignment, which amounts to violation of Rule 8(2) of the KLA Rules, and hence, Ext.P3 order cancelling assignment was passed in accordance with the provisions of the KLA Rules,

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that too, after affording an opportunity of hearing to the parties. It is further pointed out that the party respondents produced evidence to substantiate their Kumki claim over the property in question as per a Kumki Right order dated

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WP(C) No.26338/2008 & RSA No.998/2012

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20.10.1996. According to the second respondent,

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there is no ulterior motive in reopening the assignment case and Exts.P3 to P6 are strictly in accordance with the provisions under the KLA Rules and hence, the writ petition is only liable to be dismissed.

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Respondents 5 and 6 filed a counter affidavit, contending that they are entitled for assignment of land on Kumki right for the beneficial enjoyment of their registered holding, for which an application filed by them is still pending, and it is noticing the said fact that the appellate authority set aside the original order and remitted the matter to the Tahsildar for de novo disposal, which has become final without challenge by the original petitioner. It is further contended that an extent of 90 cents comprised in RS No.123/3 of Ichalampady Village and certain other properties originally belonged to Jenm to Karinjakudumba governed by Madras

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WP(C) No.26338/2008 & RSA No.998/2012

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..15..

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Aliyasanthana Law of Inheritance; and one Gowri,

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who is the sister of the fifth respondent, was

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the Ejamanathi of the Karinjakudumba; and the

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party respondents were the members of Karinjakudumba. The property in RS No.118/1E was originally in the possession of the said Gowri as her kumki land for the property comprised in RS No.123/3 and she applied for assignment of the said kumki land before the year, 1968 itself and the Darkhast proceedings initiated in DR 4150/6667/Ichalampady are still pending for disposal. After the death of the aforesaid Gowri, there was

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an oral partition in the Karinjakudumba and the property comprised in RS No.123/3 was allotted to

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the share of the fifth respondent and the

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property comprised in RS No.118/1E being the Kumki land for enjoyment of the property in RS No.123/3 also came into the possession of the

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fifth respondent. At the time of filing this writ petition, the sixth respondent was the senior

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WP(C) No.26338/2008 & RSA No.998/2012

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..16..

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most member of Karinjakudumba. The subject property comprised in RS No.118/1E belonged to

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the fifth respondent as Kumki land, which also contains cashew nut and other trees, and she was taking income therefrom, and the petitioner or nobody else is in possession or having right over the Kumki land comprised in RS No.118/1E. It is further contended that since the family of the petitioner is in possession of 2.41 acres of land in RS No.48/2pt, 0.45 acres in RS No.45/5pt, 0.02 acres in RS 48/3pt and 1.94 acres in Bombrana Village, which is lying about 6 to 7 km away from the kumki land comprised in RS No.118/1E of Ichalampady Village, and her annual family income is Rs.21,600/- against the ceiling limit of Rs.10,000/-, the petitioner is ineligible for assignment. When the party respondents came to know about the assignment of land in favour of the petitioner, they filed appeal before the

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third respondent and a report was obtained from

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WP(C) No.26338/2008 & RSA No.998/2012

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..17..

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the Special Revenue Inspector, who reported that

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an application for assignment of the Kumki land has been filed by the aforesaid Gowri as DR No.4150/66-67, which is pending. It is thus, the third respondent remanded the matter for fresh consideration. Thereafter, reports were called for from the Village Officers of Ichalampady and Bombrana and they have reported that the party respondents are in possession and enjoyment of the Kumki land and they have effected valuable improvements therein, pursuant to which, the fourth respondent cancelled the assignment as per Ext.P3 proceedings, finding that the assignment was obtained on suppression and misrepresentation of facts. It is pointed out that as per Rule 7A of the KLA Rules, the former Kumkidars shall have a superior and preferential right in respect of assignment of Kumki land. Hence, according to them, the assignment of Kumki land of Karinjakudumba to the original petitioner, who

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WP(C) No.26338/2008 & RSA No.998/2012

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does not have any preferential right or

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eligibility, that too, ignoring the application

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filed by Gowri for assignment of kumki lands, is clearly illegal and unsustainable. Hence,

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according to them, the cancellation of the

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assignment order by the authorities as per Ext.P3 is in order. It is further pointed out that the original petitioner had impleaded only the sixth

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respondent while filing OS No.234 of 1994,

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whereas the fifth respondent was in actual possession and enjoyment of the subject property and Ext.P1 decree was obtained by

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misrepresentation and fraud, against which, an

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predecessor-in-interest, for assignment of the subject Kumki land as early as before 1965 also is still pending before the Special Tahsildar

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(LA); and according to them, if the said application was disposed of in time, the kumki

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WP(C) No.26338/2008 & RSA No.998/2012

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land would have only been assigned to the fifth respondent. Hence, according to respondents 5 and 6, the attempt of the original petitioner is only to grab the property of the fifth respondent.

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petitioners, the learned counsel for the party respondents and the learned Government Pleader.

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Admittedly, the original petitioner was granted one acre of land in RS No.118/1E, Ichilampady Village. Subsequently, respondents 5 to 8 filed an appeal before the third respondent, claiming possession of 20 cents, which led to a remand to the fourth respondent. In parallel, the original petitioner filed OS No.234/1996 when the sixth respondent allegedly attempted to trespass into the property in question. The original suit was initially decreed in favour of the original petitioner, but later reversed in appeal, AS No.40 of 2004 on the file of the Additional District Judge (Ad-Hoc) , Kasaragod . The party

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WP(C) No.26338/2008 & RSA No.998/2012

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respondents filed an appeal against the order of assignment of one acre of land in RS No.118/1E (order No.IA 177/79, dated 30.06.1978), which resulted in a remand. Thereafter, enquiries were conducted through the Village Officer, who reported that the annual income of the assignee is Rs.21,600/-, the husband of the assignee possesses larger extent of properties etc. On the basis of the said report, the assignment of the subject property in favour of the original petitioner was cancelled as per Ext.P3. Appeals filed against Ext.P3 were unsuccessful.

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The question to be considered in the writ petition is whether the cancellation of the assignment of Patta in respect of one acre of land in RS No.118/1E of Ichilampady Village in favour of the petitioner is correct or not.

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For a proper appreciation of the issue,

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it is relevant to refer to Rule 8 of the KLA Rules, which reads as follows;

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WP(C) No.26338/2008 & RSA No.998/2012

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“8. Conditions of assignment on registry. - (1) Lands, granted on registry shall be heritable and alienable.

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(1A) Notwithstanding anything contained in subrule (1), the land assigned on registry as per sub-rule (1) of Rule 7 shall be heritable and alienable.

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(lA) Notwithstanding anything contained in subrule (1), unoccupied lands assigned on registry shall be heritable but not alienable for a period of twelve years from the date of assignment on registry. Provided that the assignee may mortgage such lands-(a) to the Government banks, financial institutions, Rubber Board and Tea Board as security for obtaining loans for housing, agricultural or land improvement purposes.

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(2) The assignee or a member of his family or his successor-in-interest shall reside in the land if it is granted as house site, or shall personally cultivate the same if it is granted for cultivation; and such resides or cultivation, as the case maybe, shall commence effectively within a period of one year, from the date of receipt of the patta or of the provisional patta in cases where a provisional patta is issued in the first instance:

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Provided that-

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(I) In the cases of assignment to military personnel or their dependents as the case may be, the assignee may cultivate the land by his own labourer by the labour of any member of his family and with the occasional assistance, if any of hired labour or servants on wages payable in cash or in kind but not in crop share;

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(II) the military personnel may apply for land anywhere in the State irrespective of the State to which they belong; and in the matter of assignment preference shall be given to persons belong to Kerala;

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WP(C) No.26338/2008 & RSA No.998/2012

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(III) the military personnel may lease for cultivation purposes the lands assigned to them whilst they are away on active service.

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(3) The registry shall be liable to be cancelled for contravention of the provisions in sub-rule (1) or sub-rule (2). The registry may be cancelled also, if it is found that it was grossly inequitable or was made under a mistake of facts or owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure. In the event of cancellation of the registry, the assignee shall not be entitled to compensation for any improvements he may have made on the land. The authority competent to order such cancellation shall be the authority which granted the registry, or one superior to it;

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Provided the no registry of land shall be cancelled without giving the party or parties affected thereby, a reasonable opportunity of being heard:

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Provided further that no assignment of Land shall be cancelled if the annual family income of the transferee occupant does not exceed Rs. 10,000 (Rupees Ten thousand only) and who does not own or possess any landed property, anywhere in the State;

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Provided also that in the case of a transfer of Land covered by the above Proviso the assignee shall not be eligible for further assignment of Land anywhere in the State.”

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Rule 8(3) of KLA Rules states that the

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registry shall be liable to be cancelled, if it

¶178

is found that it was grossly inequitable or was

¶179

WP(C) No.26338/2008 & RSA No.998/2012

¶180

made under a mistake of facts or owing to

¶181

misrepresentation of facts or in excess of the

¶182

limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure. Further the second proviso, which

¶183

was inserted by notification, G.O.(P) No.569/89/Rd.dt.13.07.1989, says that no assignment of land shall be cancelled if the annual family income of the transferee occupant does not exceed Rs.10,000/- and who does not own

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or possess any landed property, anywhere in the State.

¶185

In the case in hand, the main grounds

¶186

raised for cancellation of the assignment of land are in tune with the second proviso to sub-rule (3) of Rule 8 of the KLA Rules. Accordingly, as per the second proviso to Rule 8(3) of the KLA Rules, for cancellation of assignment of land, two conditions have to be satisfied; firstly, annual family income of the transferee occupant

¶187

WP(C) No.26338/2008 & RSA No.998/2012

¶188

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shall not exceed Rs.10,000/- and secondly, the transferee occupant shall not own or possess any

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landed property anywhere in the State. As regards the first condition, it is an admitted fact that the assignment of the land was granted as per Order No.IA 177/79 dated 30.06.1979 though it is stated in the writ petition as “30.06.1978”. The respondents do not have a case that at the time of assignment of the land in the year 1979, the

¶191

annual family income of the petitioner was exceeding the ceiling limit of Rs.10,000/-. It was in 2003 and 2005, the Village Officers reported that the annual family income of the petitioner is Rs.21,600/-. Though in Ext.P3, there is a reference regarding the reports of the

¶192

Village Officers, those reports are not made available before this Court for perusal. As regards the second condition, according to the respondents, the husband of the petitioner is having a larger extent of properties, however,

¶193

WP(C) No.26338/2008 & RSA No.998/2012

¶194

..25..

¶195

they do not have a case that the trasferee occupant/the original petitioner owns or possesses any landed property anywhere in the State. Though it is stated in Ext.P3 that the land is lying vacant, the assignment was cancelled stating that the land assigned to the original petitioner is on misrepresentation of facts and she is not eligible for assignment as her annual family income exceeds the ceiling limit. Therefore, it has to be presumed that Ext.P3, cancelling the assignment of land was passed on two grounds; firstly, the husband of the petitioner possesses larger extent of landed properties and secondly, her annual family income exceeds the ceiling limit of Rs.10,000/-.

¶196

On going through the relevant provisions in the KLA Rules, as noted earlier, two conditions have to be satisfied for cancellation of assignment of land. Even if the annual family income of the original petitioner exceeds the

¶197

WP(C) No.26338/2008 & RSA No.998/2012

¶198

..26..

¶199

ceiling limit of Rs.10,000/-, the other condition

¶200

that the transferee occupant shall not have any

¶201

other landed property anywhere in the State also has to be satisfied. In the case in hand, the original petitioner does not own any landed property other than the one assigned in her favour. It is her husband, who owned a larger extent of properties. There is no restriction for assignment of land if the family members other than the transferee possess any landed property anywhere in the State. The said proviso to Rule 8(3) was inserted by notification, G.O.(P) No.569/89/Rd. dt.13.07.1989, which is the after

¶202

the date of assignment of Patta to the petitioner. Hence, at the time of issuance of Patta, there was no such condition for cancellation of patta. It is on the basis of the second proviso to Rule 8(3) of the KLA Rules, the patta issued to the petitioner was cancelled as per Ext.P3 order dated 16.08.2003. By the time of

¶203

WP(C) No.26338/2008 & RSA No.998/2012

¶204

..27..

¶205

conducting fresh enquiry by the Tahsildar, Kasargod, the second proviso was inserted. But,

¶206

the insertion of the said provision made in the

¶207

year 1989 does not give any authority to the

¶208

officer concerned to cancel a patta that was

¶209

issued in the year 1978. The rules that were applicable at the time of issuance of patta are relevant. The second proviso to Rule 8(3) of the KLA Rules, which was subsequently incorporated, cannot be relied upon in this matter, as the assignment of patta was prior to the insertion. The statutory provisions and conditions applicable for cancellation of patta at the time of assignment are relevant.

¶210

Rule 8(3) prior to the amendment is as

¶211

follows:

¶212

“(3) The registry shall be liable to be cancelled for contravention of the provisions in sub-rule (1A) or sub-rule (2). The registry may be cancelled also, if it is found that it was grossly inequitable or was made under a mistake of facts or owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure. In

¶213

WP(C) No.26338/2008 & RSA No.998/2012

¶214

..28..

¶215

the event of cancellation of the registry, the assignee shall not be entitled to compensation for any improvements he may have made on the land. The authority competent to order such cancellation shall be the authority which granted the registry, or one superior to it:

¶216

Provided that no registry of land shall be cancelled without giving the party or parties affected thereby, a reasonable opportunity of being heard.”

¶217

The respondents have no case that the

¶218

petitioner has violated any of the conditions stipulated in Rule 8(3) of KLA Rules, which

¶219

stood prior to the amendment of the Rules. As per Ext.P5, the second respondent – the Land Revenue Commissioner – dismissed the revision filed by the original petitioner stating as follows;

¶220

“It is clear from the hearing conducted and perusal of the available records that the family of the revision petitioner had been possessing other lands (not landless) and the annual family income was well above the ceiling limits fixed then i.e., Rs.10,000/annum. In the circumstances, I do not find any reason to interfere with the orders of the Revenue Divisional Officer, Kasaragod. Hence this revision petition is dismissed.”

¶221

Hence, the reasons for cancellation of patta were

¶222

that the family of the revision petitioner had

¶223

WP(C) No.26338/2008 & RSA No.998/2012

¶224

..29..

¶225

been possessing other lands (not landless) and

¶226

the annual family income was well above the ceiling limits. The respondents have not challenged Ext.P5 order passed by the Land

¶227

Revenue Commissioner. Hence, that has become final as far as the respondents are concerned. No other reasons under Rule 8(3) of the KLA Rules are relied on by the respondents. The KLA Rules after the insertion of the second proviso to Rule

¶228

8(3) also will not come to the aid of the

¶229

respondents since both the conditions stipulated therein are not satisfied. Even though the right to property was taken away from the fundamental rights guaranteed under Part III of the Constitution of India, Article 300-A extends a valid constitutional right to the owner of the land to hold the same, in accordance with law. Hence, I am of the opinion that the entire action of the revenue authorities in cancelling the assignment of one acre of land in RS No.118/1E of

¶230

WP(C) No.26338/2008 & RSA No.998/2012

¶231

..30..

¶232

Ichilampady Village in favour of the original petitioner as per order No.IA 177/79 dated 30.06.1979, is illegal and arbitrary.

¶233

The party respondents claimed that they

¶234

are having Kumki right over an extent of 20 cents of property out of the one acre property assigned to the original petitioner. However, other than an application alleged to have been filed before the Special Tahsildar (LA), nothing has been produced before this Court to substantiate their claim. Moreover, the party respondents have not taken any step for assignment of the Kumki right claimed by them, whereas the petitioner was assigned with one acre of land in RS No.118/1E of Ichilampady Village as per order No.IA 177/79 dated 30.06.1979 by the Special Tahsildar (LA), Kumbala, after proper enquiry at the time of assignment. The further facts revealed on enquiry lack support of the provisions of law enumerated in Rule 8 of the KLA Rules. Therefore, I am of

¶235

WP(C) No.26338/2008 & RSA No.998/2012

¶236

..31..

¶237

the opinion that the writ petition is to be allowed.

¶238

Since, I have already found that the

¶239

cancellation of assignment of land in favour of the original petitioner is illegal, RSA No.998 of

¶240

2012 filed by the legal heirs of the original petitioner/supplemental petitioners 2 to 6 also is to be allowed.

¶241

Accordingly, the following orders are issued; a)WP(C) No.26338 of 2008 is allowed. Exts.P3 to P6 are set aside.

¶242

b) Consequently, RSA No.998 of 2012 is also

¶243

allowed and the judgment and decree dated 24.03.2012 in AS No.40 of 2004 on the file of

¶244

the Additional District Court ( Ad Hoc )-I, Kasaragod, are set aside. The appellants, who

¶245

are the legal heirs of the original petitioner/plaintiff, are entitled for the relief granted by the court below in judgment dated 31.07.1999 in OS No.234 of 1996.

¶246

WP(C) No.26338/2008 & RSA No.998/2012

¶247

c) The party respondents can seek appropriate remedy as per law before the appropriate authorities, if they have any claim or right over the property assigned to the original petitioner.

¶248

SD/-

¶249

SHOBA ANNAMMA EAPEN

¶250

JUDGE

¶251

bka/-

Narayana Rai v. Suguna

Case brief

What is this about?

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Narayana Rai v. Suguna

Case brief

What is this about?

What did the court decide?

What the court decided

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