Allowed

Rajendra Kumar v. State of Kerala

Kerala HC23 May 2023WP(C)/5108/2021

Case brief

AI extract

What is this about?

The Kerala High Court held that an assignment deed under the 1970 Rules remained valid but was frustrated by encroachment. It quashed orders assigning minimal land under different rules to one heir, directing fresh orders for alternative land to all patriarchal family heirs within three months.

What did the court decide?

Ext.P10 and Ext.P6 quashed; direction to 2nd respondent to pass fresh orders assigning suitable alternate land to petitioners within three months.

Rajendra Kumar Vs State of Kerala — 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 MR. JUSTICE T.R.RAVI

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TUESDAY, THE 25^TH DAY OF JULY 2023 / 3RD SRAVANA, 1945

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WP(C) NO. 5108 OF 2021

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PETITIONERS:

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1 RAJENDRA KUMAR AGED 60 YEARS

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S/O. LATE SREEDHARAN, PARVATHY MANDIRAM, NEERAVIL, PERINAD P.O., KOLLAM-691 601.

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2 BAIJU KUMAR AGED 58 YEARS

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S/O. LATE SREEDHARAN, USHUS, SNEHA NAGAR-11,

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ERAVIPURAM P.O., KOLLAM-691 011.

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3 SURESH KUMAR AGED 56 YEARS

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S/O. LATE SREEDHARAN, D.S.DALE, VALATHUNGAL P.O., ERAVIPURAM VILLAGE, KOLLAM-691 011.

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4 GIREESH KUMAR AGED 50 YEARS S/O. LATE SREEDHARAN, D.S.DALE, VALATHUNGAL P.O., ERAVIPURAM VILLAGE, KOLLAM-691 001.

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5 ADDL. P5. VASANTHA KUMARI W/O.RAJENDRA KUMAR, AGED 58 YEARS, PARVATHY MANDIRAM, NEERAVIL, PERINAD.P.O., KOLLAM - 691 601

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6 ADDL. P6. PARVATHY, W/O.BIJU, AGED 33 YEARS, MAMPUZHA VEEDU, NEERAVIL, PERINAD.P.O., KOLLAM – 691 601

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7 ADDL. P7. ASWATHY, D/O. RAJENDRA KUMAR, AGED 30 YEARS, PARVATHY MANDIRAM, NEERAVIL, PERINAD.P.O., KOLLAM – 691 601

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(ADDL.P5 TO P7 IMPLEADED AS PER ORDER DATED 25-07-2023 IN IA 1/2023)

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BY ADVS. B.MOHANLAL SHRI.SHINE N.S SHRI.KARTHIK J SEKHAR

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WP(C) NO. 5108 OF 2021

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JAYAPRABHA ARJUN ASWIN V. NAIR

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNEMNT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE PRINCIPAL SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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3 THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION (FREEDOM FIGHTERS PENSION) DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAURAM-695 001.

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4 THE DISTRICT COLLECTOR COLLECTORATE, CUTCHERY P.O., KOLLAM-691 013.

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5 THE REVENUE DIVISIONAL OFFICER

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PUNALUR, PUNALUR P.O., KOLLAM-691 305.

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6 THE TAHASILDAR TALUK OFFICE, PATHANAPURAM P.O., KOLLAM-689 695.

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7 THE TAHASILDAR (LAND RECORDS) PATHANAPURAM P.O., KOLLAM-689 695.

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8 THE VILLAGE OFFICER

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EDAMULAKKAL VILLAGE, EDAMULAKKAL P.O., KOLLAM-691 306.

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BY ASWIN SETHUMADHAVAN, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 5108 OF 2021

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T.R.RAVI, J.

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WP(C) No.5108 of 2021

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 Dated this the 25thday of July, 2023

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JUDGMENT

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Petitioners 2 to 4 and deceased 1st petitioner are the
legal heirs of late Sreedharan and Nalinikutty and petitioners 5
to 8 are the legal representatives of the deceased 1st petitioner.
Ext.P1 is thelegal heirship certifcate issued by the Tahsildar,i
Kollam. Late Sreedharan was a freedom fghter. As per Ext.P2i
order dated 18/11/1975, issued under Rule 21 of the Arable
Forest Land Assignment Rules,1970 (hereinafter referred to as
the '1970 Rules'), sanction was accorded for the assignment of 1
Acre of arable forest land in Airanalloor Reserve of Quilon
District to late Sreedharan. By Ext.P3, the 6th respondent
assigned 40 Ares of arable forest land in Sy.No.822/948A, B to
late Sreedharan and he effected mutation of the property in
Thandaper No.12502. Ext.P4 is the receipt for payment of tax in
1985, issued by the Village Offcer. It is submitted that thei
properties were not identifed and located by the Department, ini

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WP(C) NO. 5108 OF 2021

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spite of the order of assignment and payment of tax. Late
Sreedharan fled O.P.No.4281/1986 before this Court, which wasi
disposed of directing the 4th respondent to consider the
representation to put him in possession. On 25.9.1991, the 4th
respondent directed the 6th respondent to survey land, locate
the property and hand over possession. The 6th respondent
failed to comply with the direction. Ext.P5 dated 19.3.1992 is a
subsequent communication issued by the 4th respondentto 6th
respondent directing to take appropriate action. The 6th
respondent did not take any initiative on the letter. Late
Sreedharan became sick and was bedridden for several years
and later died on 12.07.1996. Late Sreedharan’s widow
Smt.Nalinikutty submitted several representations, but the 6th
respondent did not take any steps. A representation was fledi
before the Minister for Revenue, which was forwarded to the 4th
respondent as per communication No.50/12/M(Rev.C) on
30.04.2012. The initial stand of the respondents was that the
assigned property was encroached upon by landless people and
the Government had revoked the assignment in favor of the
petitioners’ father and assigned the lands to the encroachers.

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WP(C) NO. 5108 OF 2021

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Ext.P6 communication sent by the 4th respondent to
Smt.Nalinikutty is to that effect.

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2.Smt.Nalinikutty fled iW.P.(C)No.21844/2012
challenging Ext.P6. The respondents fled counter affidavits. Iti
was submitted that the earlier stand taken by the respondents
in Ext.P6 was not correct and that the assignment in favour of
Late Sreedharan was still in force and had not been cancelled.
This Court disposed of the writ petition by Ext.P8 judgment,
recording its view that the petitioner shall be assigned suitable
alternative land elsewhere and directing the District Collector
to take a decision in the matter within three months and
forward the recommendation to the Secretary to Government.
This Court also directed the Secretary to Government to take a
decision after adverting to the recommendation of the District
Collector within a further period of 3 months. The judgment is
dated 17.2.2016. Smt.Nalinikutty died on 10.10.2016. The 4th
respondent on 21.10.2017 sent Ext.P9 recommendation to the
2nd respondent, pointing out that 1.200 Hectares of land in Re-
Sy.No.242/1 in Block No.28 of Edamulakkal Village is available
for the purpose of assignment to the petitioners. It was

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WP(C) NO. 5108 OF 2021

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recommended that land equivalent to the market value of the
land originally assigned to the petitioners’ father, can be
assigned to the petitioners. However, the 2nd respondent issued
Ext.P10 order assigning 15 cents of land to the 4th petitioner
who alone is stated to be landless among the petitioners. The
writ petition has been fled challenging Exts.P6 and P10.i

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3.The 4th respondent has fled a counter affidavit.i
It is contended that since the assignee did not occupy the land
and cultivate it, nearby landless families encroached into the
land and started cultivation in the late seventies. It is stated
that when steps were taken to re-assign the land to occupants,
the petitioners’ father had fled O.P.No.4281/1986 before thisi
Court. It is admitted that the original assignment was not
cancelled and that there was no re-assignment. It is however
stated that eviction of the occupants of the said lands was not
possible. Ext.P10 is stated to be the order issued in compliance
with the directions in Ext.P8 judgment. It is contended that as

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per the Kerala Land Assignment Act and Rules, the landless
people can be given a maximum extent of 15 cents of land in
Panchayat area and that land assignment on patta will be only

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WP(C) NO. 5108 OF 2021

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to landless. It is submitted that the request for 1 Acre of land
cannot be accepted in view of the Rules. The counter affdaviti
fled by the 2ind respondent is also in the same line.

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4.Heard the counsel for the petitioner and the
respondents. Facts are not in dispute. The father of the
petitioner was granted an assignment under the 1970 Rules.
The extent assigned was 1 Acre of land in Airanalloor Reserve of
Quilon District. The land assigned is heritable under the Rules.
The assignment was on 11.11.1976. It can be seen from Ext.P4
that the father of the petitioners had paid land tax till 1985. It
is also admitted that the land assigned to the father of the
petitioners had been encroached upon by others and late
Sreedharan had approached this Court by flngi
O.P.No.4281/1986 for putting him in possession of the property.
The original assignee died on 12.7.1996 without being able to
enjoy the assignment. The issue was taken up by the widow of
the assignee Smt.Nalinikutty, who also died on 10.10.2016
without being able to get the beneft of the assignment.i
Admittedly, the assignment has not been cancelled and being
heritable, the petitioners are entitled to the benefts of thei

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WP(C) NO. 5108 OF 2021

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assignment. By Ext.P8 judgment, this Court had specifcallyi
found that in the peculiar facts and circumstances, the Court is
of the view that the petitioner shall be assigned with a suitable
alternative land elsewhere. It was after expressing such a view
that the District Collector was directed to identify the land.
Ext.P8 judgment has become fnal and the respondents alsoi
acted upon it. It is evident from Ext.P9 that lands had been
identifed. However, while issuing Ext.P10 order, the 2ind
respondent has restricted the assignment to one of the legal
heirs and also restricted the extent of land to 15 cents. A
reading of Ext.P10 would show that the respondents have
proceeded to grant assignment under the Kerala Land
Assignment Rules, 1964. The direction issued by this Court was
for assignment of alternative lands in the place of land already
assigned under the 1970 Rules. The purposes for assignment
under the 1970 Rules, the maximum extent that can be assigned
to a family, etc. are entirely different from the provisions of the
Kerala Land Assignment Rules. The 2nd respondent was not
hence justifed in interpreting the directions issued by thisi
Court as permitting the respondent to grant the assignment

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WP(C) NO. 5108 OF 2021

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under the Land Assignment Rules to one of the legal heirs of the
original assignee. What was intended by this Court was to make
good the loss suffered by the original assignee and his legal
representatives due to the encroachment and non-availability of
the lands assigned. This Court did not direct eviction of the
trespassers and instead found an alternate method to safeguard
the rights. The direction to give alternate suitable land does not
mean that what was to be assigned was only an extent
equivalent to the market value of the original assigned land.
Ext.P10 is not in accordance with the directions issued by this
Court in Ext.P8.

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5.In the above circumstances, the writ petition is
allowed. Ext.P10 is quashed. Ext.P6 cannot also be sustained
and is quashed, since even according to the respondents, the
assignment in favour of late Sreedharan continues to be in force
and the land had not been re-assigned to anybody else. There
will be a direction to the 2nd respondent to pass fresh orders
assigning suitable alternate land to the petitioners. The
restrictions regarding landless persons under the Kerala Land
Assignment Rules shall not be applicable in the case on hand

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owing to the peculiar facts and circumstances as already
observed in Ext.P8 judgment. Necessary orders shall be issued
within three months from the date of receipt of a certifed copyi
of this judgment.

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Sd/-

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T.R.RAVI

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JUDGE

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sn

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WP(C) NO. 5108 OF 2021

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APPENDIX OF WP(C) 5108/2021

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PETITIONER'S ANNEXURES

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EXHIBIT P1	THE TRUE COPY OF THE LEGAL HIER-SHIP CERTIFICATE NO:C-2/9100/18/K.DIS. DATED 12.7.2018 ISSUED BY THE TAHASILDAR, KOLLAM TO THE PETITIONERS.
EXHIBIT P2	THE TRUE COPY OF THE G.O.(RT)NO.1437/75/RD DATED 18.11.1975 ISSUED BY THE GOVERNMENT.
EXHIBIT P3	THE RUE COPY OF THE FORM NO.5 OF ORDER OF ASSIGNMENT ON REGISTRY ISSUED BY THE 6TH RESPONDENT TO LATE SRI. SREEDHARAN.
EXHIBIT P4	THE TRUE COPY OF THE TAX RECEIPT DATED 9.7.1985 ISSUED BY THE VILLAGE OFFICER, EROOR VILLAGE FOR THE YEAR 1985 TO SRI. SREEDHARAN.
EXHIBIT P5	THE TRUE COPY OF THE COMMUNICATION NO:SY1- 56114/91 DATED 19.3.1992 ISSUED BY THE 4TH RESPONDENT TO THE 6TH RESPONDENT.
EXHIBIT P6	THE TRUE COPY OF THE ORDER NO.N2-27961/10 DATED 23.7.2012 ISSUED BY THE 4TH RESPONDENT TO THE MOTHER OF THE PETITIONERS, SMT. NALINIKUTTY.
EXHIBIT P7	THE TRUE COPY OF THE REPLY NO.13925/11 DATED 22.6.2011 SENT BY THE DEPUTY TAHASILDAR ATTACHED TO THE OFFICE OF THE 4TH RESPONDENT TO SMT. NALINIKUTTY, MOTHER OF THE PETITIONERS.
EXHIBIT P8	THE TRUE COPY OF THE JUDGMENT DATED 17.2.2016 IN WPC NO.21844/2012 OF THIS HON'BLE COURT.
EXHIBIT P9	THE TRUE COPY OF THE COMMUNICATION NO:L5- 27961/10 DATED 21.10.2017 ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT.

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EXHIBIT P10 THE TRUE COPY OF THE G.O.(KAI) NO.182/2020/REVENUE DATED 03.7.2020 ISSUED BY THE GOVERNMENT.

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Annexure A1 THE TRUE COPY OF THE DEATH CERTIFICATE NO.DO140168-2305863 DATED 03.06.2023 ISSUED BY THE REGISTRAR OF BIRTH AND DEATH, KOLLAM MUNICIPAL CORPORATION

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//TRUE COPY// PA TO JUDGE

Rajendra Kumar v. State of Kerala

Case brief

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Rajendra Kumar v. State of Kerala

Case brief

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