Research › Browse › Judgment

Kerala High Court · body

1959 DIGILAW 309 (KER)

Cyril Presentation v. Board Of Revenue

1959-10-08

T.K.JOSEPH

body1959
JUDGMENT T.K. Joseph, J. 1. This is a petition under Article 226 of the Constitution praying for a writ of certiorari or other appropriate writ, direction or order quashing an order (Ext. E) of the second respondent, the District Collector, Quilon, granting a kuthakapattam lease of Government poramboke land to the third respondent. The second respondent's order was confirmed by the Board of Revenue in revision under Ext. G dated 4-9-1957 and a petition to review the same was dismissed by order Ext. J. 2. The petitioner's case is that he is the owner of survey No. 337/12 in Mararikulam South Village, that the disputed plot of land is one lying between his registered holding and the sea, and that he was in possession of the same for several years. Finding that the petitioner was in unauthorised occupation of the land, the Revenue Department took up a case against him under the Land Conservancy Act and the Village Officer prepared a mahazar (Ext. A) stating that the petitioner had been in unlawful occupation of the land for fifteen years, that there were cocoanut trees planted in the property, and that the third respondent was having a coffee shop in a building there. Thereupon the petitioner applied for kuthakapattom lease of this plot to him. During the course of the enquiry, the Tahsildar, Ambalapuzha, issued a notice to the third respondent also and the latter was made a party to the case under the Land Conservancy Act. The third respondent then made an application that he be given lease of the property. The Tahsildar passed an order (Ext. D) granting the land on kuthakapattam lease to the third respondent who according to him was in possession and was entitled to obtain the land on lease. The petitioner preferred an appeal to the second respondent who confirmed the findings of the Tahsildar but held that the latter had no jurisdiction to grant the lease. On the materials available, the District Collector passed an order (Ext. E) granting the land on lease to the third respondent. The matter was taken in revision before the Board of Revenue, which confirmed the District Collector's order. According to the petitioner, he was in continuous possession of the land and the third respondent had no possession. He also denies that the Tahsildar made any local inspection of the property. E) granting the land on lease to the third respondent. The matter was taken in revision before the Board of Revenue, which confirmed the District Collector's order. According to the petitioner, he was in continuous possession of the land and the third respondent had no possession. He also denies that the Tahsildar made any local inspection of the property. The petitioner's case is that the orders granting the land on kuthakapattom lease to the third respondent has to be quashed as the same were passed in violation of the rules made by the Government for grant of lands on kuthakapattam lease and as principles of natural justice were also violated in disposing of the matter. On the formation of the District of Alleppey, which formerly formed part of Quilon, the District Collector of Alleppey, was substituted as the second respondent in place of the District Collector, Quilon. 3. A counter affidavit has been filed by the Deputy Tahsildar, Ambalapuzha, on behalf of respondents 1 and 2. It is stated that on receipt of the Village Officer's report, the Tahsildar made a local inspection when he found that the third respondent was residing in the property and that he ordered that too be made a party to the Land Conservancy Case. The petitioner and the third respondent both applied for grant of the lease and, on consideration of the materials available, the third respondent's application was granted. The District Collector passed the order after obtaining a report from the Tahsildar. It is further contended that even if the petitioner might have originally encroached on the land, it was found that the third respondent had possession for eleven years, that in passing the impugned orders, the rules under the Land Assignment Act or principles of natural justice were not violated, that the petitioner is guilty of laches, and that the grounds relied on by the petitioner are not sustainable. The third respondent supports respondents 1 & 2. 4. Before considering the matter on the merits, I may observe that the objection on the ground of laches is not maintainable, the petitioner having come before this court within three months of the order of the Board of Revenue rejecting his appplication for review of the earlier decision. 5. It is admitted that the land belongs to the Government and that the Government have absolute powers of disposal of the same. 5. It is admitted that the land belongs to the Government and that the Government have absolute powers of disposal of the same. It cannot be said that the petitioner or any other person has a vested right to obtain the land on lease from the Government. The petitioner's case that under the rules he has a preferential claim to obtain the land on lease is not sustainable. The rules are intended for the guidance of the subordinate officers of the Government in granting leases of such lands and the fact that such rules are made under the Act will not confer a vested right on the petitioner. The act of granting a lease is purely an administrative or executive act which is not amenable for judicial review. Apart from this, it is seen from the records that the Tahsildar made a local inspection and found that the third respondent was in possession. Neither the petitioner nor the third respondent adduced any evidence in support of the claims put forward so that the matter had to be decided on materials gathered by the officers of the Department on local inspection. It is not proper to entertain in these proceedings the ground urged by the petitioner that the Tahsildar did not make any local inspection. The order of the Tahsildar shows that he did make a local inspection. Objection was taken to the finding that the third respondent was an indigent person and documents were produced by the petitioner to show that his father owned some immovable property. The parties are Christians and the fact that the father owns properties does not mean that the son has any interest in the same. It was pointed out that under the rules the land had to be auctioned. I have already observed that these rules are only administrative directions and if a kuthakapattam lease was given without auction, it may amount to an irregularity for which the Government may take the officers to task. The main fact is that respondents 1 and 2 came to the conclusion that the third respondent was in possession, and this is the foundation for the order in favour of the third respondent. 6. The main fact is that respondents 1 and 2 came to the conclusion that the third respondent was in possession, and this is the foundation for the order in favour of the third respondent. 6. Learned counsel for the petitioner pointed out that the petitioner was also convicted under the Land Conservancy Act for unauthorised occupation of the land while lease was given to the third respondent on the ground that he was in possession. This may be a good ground for getting the order of conviction quashed, by proper authorities. It may however be observed that the conclusion reached by respondents 1 and 2 was that though the third respondent was seen to be in possession of the land, the original encroachment was by the petitioner. I do not therefore propose to express any opinion on the propriety of the order convicting the petitioner under the Land Conservancy Act. 7. It was finally contended that principles of natural justice were violated. In support of this argument, it was urged that no opportunity was given to the petitioner to prove his case. The act of granting the lease being an administrative one, no question of natural justice arises, especially as no fundamental right of the petitioner has been affected. It follows that the petitioner is not entitled to any relief. The original petition is therefore dismissed but in the circumstances I make no order as to costs.