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2024 DIGILAW 212 (KER)

K. Mohandas, S/o. K. C. Chandu v. State Of Kerala

2024-02-19

P.V.KUNHIKRISHNAN

body2024
JUDGMENT : The Wayanad district in Kerala is known for its tribal community. When we visit Wayanad, we can see them with innocent smiles on their faces in almost every nook and corner. About 20% of the population of Wayanad district are from tribal communities. The State Government is trying to give all sorts of help to the tribal community because of the peculiar nature of their life and also to uplift them along with the citizens of this country. But the majority of them want to follow their own traditional culture for which they want land and resources. But it is a fact that, even now several tribals are waiting to get a piece of land for agricultural purposes and to construct a dream house on their land in their own way. It is the duty of the state and all of us to see that the tribals are happy and a beautiful smile continues on their face forever. But here is a strange case where about 5.5358 hectares of government land is assigned to the 5th respondent ‘Kallodi St.George Forane Church’ for a meager amount of Rs.100/Acre, when hundreds of tribals are waiting to get land for their shelter. Whether this Court should interfere with the above assignment is the question to be decided in this case. 2. It is stated in the writ petition that the petitioners are social workers and belong to the landless tribal community in Wayanad District. It is the case of the petitioners that the Government assigned the Government land at a nominal price to the 5th respondent overlooking the six thousand applications of the landless tribal people for a residential plot. Despite Government initiatives and developmental projects, the existing socio-economic profile of the tribal communities is low compared to the mainstream population is the submission. The social exclusion and a high degree of deprivation are the major problems faced by the tribal community in Kerala is the submission. There took place starvation deaths of 32 tribals in July-August 2001, and subsequently 48-day agitation was launched by the Adivasi-Dalit Action Council in front of the Secretariat is the submission. The agitation ended on October 16th, 2001 when a seven-point agreement was reached with the government. The seven-point agreement of October 16th says that five acres of land would be given wherever possible. The agitation ended on October 16th, 2001 when a seven-point agreement was reached with the government. The seven-point agreement of October 16th says that five acres of land would be given wherever possible. It is also agreed that a minimum of one acre which could go up to five acres depending on the availability of land would be given in other places. There were other assurances also in the agreement like the implementation of a five-year livelihood program on the land distributed until it becomes fully productive and the adivasi can sustain themselves, enactment of a fresh law to prevent alienation of these lands as had happened in the past, passing a cabinet resolution asking the union government to declare the adivasi areas of Kerala as scheduled areas and incorporating them under Schedule V of the Constitution, the government would abide by the Supreme Court decision on its appeal against the Kerala High Court order quashing the Tribal Land Amendment Bill passed by the state assembly in 1999, preparation of a master plan for tribal development with the participation of tribals and its implementation and also about 10,000 acres would be found and distributed in Wayanad district, which has the highest concentration of landless tribals. This agreement was followed by ‘Muthanga incident’ wherein the lives of 5 tribal people succumbed to police firing is the submission. There are various ongoing agitations in Wayanad District by the tribals and the petitioners are also part of such agitations is the submission. 3. It is submitted that the 5th respondent had illegally encroached 5.5358 hectares of land in Mananthavady Taluk of Wayanad District from 1962 onwards. It is submitted that the 5th respondent was making efforts to get Pattayam to this encroached property and they were continuing on lease in that property. The District Collector, pursuant to the application of the 5th respondent, obtained a report from the Mananthavady Tahsildar on the feasibility of the assignment of the said land to the 5th respondent. Ext.P1 is the report of the Tahsildar. Since the ground report never favoured the assignment of land to the 5th respondent, the Revenue Authorities had initiated action under the Kerala Land Conservancy Act is the submission. Ext.P1 is the report of the Tahsildar. Since the ground report never favoured the assignment of land to the 5th respondent, the Revenue Authorities had initiated action under the Kerala Land Conservancy Act is the submission. The 5th respondent to avoid the assignment getting annulled by court of law, submitted a revised application agreeing to remit the market price for around 12 acres of land in their possession is the submission. 4. However, the proposal by the 5th respondent was not accepted and the Land Revenue Commissioner ordered to submit proposal to assign the land on lease. Ext.P2 is the letter by the District Collector to the Additional Private Secretary to the Chief Minister. Pursuant to Ext.P2, the Land Revenue Commissioner gave a letter to the District Collector seeking his opinion as regarding the grant of the land on lease to the 5th respondent. Ext.P3 is the letter. Considering the entire report, the 2nd respondent, by Ext.P4 order, granted lease of the property for 30 years with certain conditions. It is submitted that without any field report or application by the 5th respondent, the 2nd respondent withdrew Ext.P4 and ordered to grant Pattayam to the 5th respondent over the said 5.5358 hectares of land at a cost of Rs. 100/-per acre. Ext.P5 is the Government Order. It is submitted that Ext.P5 is absolutely illegal and against statutory provisions. It is submitted that the proceedings in Ext.P5 strictly contradict the declared policy of the State as well as statutory provisions. Ext.P6 Government Order is produced to show the same. It is submitted that the petitioners as well as thousands of other landless Tribal families are awaiting allotment of land promised by the Government. In fact, the land owned by their ancestors had been illegally taken away by the rich and influential through deceitful means is the submission. It is also submitted that the Government is also finding it difficult to acquire private land or to implement the provisions in Restriction on Transfer by and Restoration of Alienated Lands to Scheduled Tribes Act, 1975 (for short, Act 1975). A circular was also issued as evident by Ext.P8 in the year 2001 in which it is stated that in the matter relating to assignment of land in favour of persons/ associations which does not involve public interest will not be entertained or recommended in future. A circular was also issued as evident by Ext.P8 in the year 2001 in which it is stated that in the matter relating to assignment of land in favour of persons/ associations which does not involve public interest will not be entertained or recommended in future. The petitioners filed a complaint before the Chief Secretary against Ext.P5 as evident by Ext.P9. Even then there is no response. Hence this writ petition is filed with following prayers: I. To issue a Certiorari or appropriate Writ, order or direction quashing Exhibit P4 and Exhibit P5. II. To issue a Writ of Mandamus or other appropriate writ order or direction commanding the respondents to allocate 5.32 Hectors of land covered in Exhibit P5 among landless tribal families after providing the minimum land (2acres) occupied by the Church and School Building to the 5th respondent by realizing the market value of the property. III. To issue a Writ of Mandamus or other appropriate writ order or direction commanding the respondents to Implement Exhibit P6 and facilitate allocation of residential/agricultural plots to the Tribal families of Wayanad by respecting the commitments made to the community on 16th of October 2001. IV. Grant such other reliefs as may be prayed for and as the Court may deem fit to grant. V. Grant the cost of this Writ Petition. (SIC) 5. Heard the learned counsel for the petitioners and the learned Government Pleader. 6. The counsel for the petitioners reiterated the contentions raised in the writ petition. The counsel submitted that in Ext.P4, it is stated that the market value of the property in possession of the 5th respondent is about Rs.3,04,96,403/-as on 2015. It is submitted that now the property’s value is high. Without any basis the properties are assigned to the 5th respondent as per Ext.P4 is the submission. It is submitted by the petitioners that there is absolutely no justification on the part of the Government in assigning the property to the 5th respondent. 7. The Government Pleader argued the case based on the counter affidavit filed by the 1st respondent. In the counter affidavit it is stated that Fr.George Mampallil, Vicar of St.George Forane Church, Kallodi has represented that High School, Higher Secondary School and Playground are situated in 3 Acres 46 cents of land under the possession of Kallodi church. 7. The Government Pleader argued the case based on the counter affidavit filed by the 1st respondent. In the counter affidavit it is stated that Fr.George Mampallil, Vicar of St.George Forane Church, Kallodi has represented that High School, Higher Secondary School and Playground are situated in 3 Acres 46 cents of land under the possession of Kallodi church. About 1300 students belonging to all communities are studying there and 70 staff are working in the institution. Pre-primary school and UP School are working in 3 Acres 15 cents of land having 1070 students and 33 staff. The cemetery is situated in 3 Acres 48 cents of land which is the burial ground of more than 1000 people. It is submitted that the Church having more than 3500 people and parsonage is located in 1 Acre of land. It is also submitted that Kallodi Church is having 4 Acres 56 cents of cultivable land. It is also stated in the counter affidavit that about 5.51 hectares of land in R.S.No.80/1, 101/1, 35/8, 9/10, 35/11, 19/1, 20/2, 96/5 at Edachana desom, Edavaka amsam, Mananthavady Taluk in Wayanad District is under the possession of Kallodi St.George Forane Church since 1955. The District Collector, Wayanad has reported that Kallodi St.George Forane Church has been established before 40 years and buildings for the church, residence for the Vicar of the church, cemetery, educational institutions etc have been established before and after 1955. For the development and financial security, various agriculture activities were started in the above mentioned land in Kallodi and tax has been remitted upto 1962 based on the Punja Cheetu. It is submitted that the land mentioned in Ext. P4 and P5 are situated in panchayat area and therefore Kerala Land Assignment Rules, 1964 is applicable. It is also submitted that as per Rule 7(1) of the said Rules, assignment is possible. The land held by the Church authorities by way of encroachment seems to be much prior to 01.08.1971 is the submission. The proviso to Rule 7(1) of the said Rules, says that, in the case of any land, set apart for assignment on registry to members of SC/ST and subsequently encroached upon, by those persons who are landless and eligible for assignment of land under these Rules, such land can be assigned to these encroachers only after setting apart equal extent of other unoccupied area for the members of SC/ST community. It is submitted that an analysis of these provisions would reveal that if there is an encroached land set apart for the SC/ST community, the encroachers shall be assigned that land on registry only after setting apart equal and suitable extent of unoccupied area for the members of SC/ST community. In this case, the land is under the encroachment of the church prior to 1960 which is the date of incorporation of the Kerala Land Assignment Act is the submission. This encroachment is not seen done on any land set apart for SC/ST is the further submission. It is also submitted that as per G.O (RT) No.2657/10/Home dated 26.08.2010 issued from the Home Department, it has been instructed to regularize the land held by religious institutions for a period of 15 years or more. By exercising the sovereign powers of Government, the land was originally assigned on lease and thereafter, finding more appropriate, the same was assigned on registry is the submission. It is also submitted that as per the existing rules and court judgment, Government land held by religious institutions is to be regularized. It is further submitted that by invoking the power vested with Government as per Rule 24 of the Kerala Land Assignment Rules, 1964, Government assigned on lease the land as per Ext.P4. Later the Government revised the above order and the Ext.P5 order was issued. This is the submission in the counter. 8. A counter affidavit is filed by the 5th respondent. In the affidavit the averments in the writ petition are denied. It is submitted that St.George Forane Church was originally formed under the Roman Catholic Latin Sabha of Mysore, in 1942. Since then the same, under the different Sabha by way of integration, and ultimately as at present when Manandhavady Diocese was constituted, the said church came under the direct administration of the same. There are more than thousand families who are members of the parish is the submission. The religious activities of the members of the parish in relation to the church as also the other activities like burial etc., for the past 70 years have been taking place in this church and in the cemetery attached to the church. That apart it also has the monastery attached to the church. The religious activities of the members of the parish in relation to the church as also the other activities like burial etc., for the past 70 years have been taking place in this church and in the cemetery attached to the church. That apart it also has the monastery attached to the church. In the remaining property there is a public school, which originally was a primary school, but upgraded as U.P. School in 1952. In 1975, the high school was started, and since 2000 onwards there is a higher secondary school as well is the submission. They are situated separately. It is submitted that a private person was conducting a primary school in the property in question and the church purchased the school from the said person to continue the activity. Since 1950 onwards applications and requests were submitted by the church for the issuance of patta, is the further averment in the counter. It is also submitted that the Malabar Collector passed an order, as evident by Ext.R5(a), whereby the patta was directed to be granted at the rate of Rs.100/-per acre. It is further submitted that the church was disabled to pay the exorbitant amount demanded of Rs.100/-per acre in 1952. But from 1958 till 1962, basic land tax was being remitted for this property by the church. The other averments in the writ petition are denied by the 5th respondent. 9. A separate petition is filed by the 5th respondent to accept certain additional documents as I.A.No.1/2020. Ext.R5(c) is the patta issued to the 5th respondent based on Ext.P5 order. Ext.R5(d) is the receipt showing payment of tax. The 5th respondent also produced Ext.R5(e) decision of the Apex Court. 10. This Court considered the contentions of the petitioner and the 5th respondents. It is an admitted fact that the respondent is an encroacher of 5.5358 hectares of land till it is assigned based on Ext P5. It is also a fact from Ext.P4 Government Order that the land occupied by the 5th respondent is worth about 3,04,96,403/-as of 2015. As per Ext.P5, this property is assigned to the 5th respondent for Rs. 100/-per acre. Prima facie, this assignment is unsustainable and is to be interfered with by this Court. The petitioners are tribals. Their history is mentioned in detail in the writ petition. As per Ext.P5, this property is assigned to the 5th respondent for Rs. 100/-per acre. Prima facie, this assignment is unsustainable and is to be interfered with by this Court. The petitioners are tribals. Their history is mentioned in detail in the writ petition. Hundreds of tribals are waiting to get property and the Government is also trying to purchase private land to distribute to the tribals. In such circumstances, how the Government assigned 5.5358 hectares of land to the 5th respondent is thought provoking. It is submitted by both sides that the assignment is based on Rule 24 of the Kerala Land Assignment Rules. Rule 24 of the Kerala Land Assignment Rules is extracted hereunder : “24. Powers of Government -Notwithstanding anything contained in these rules the Government may, if they consider it necessary so to do in public interest, assign land dispensing with any of the provisions contained in these rules and subject to such conditions, if any, as they may impose.” 11. It says that the Government may if they consider it necessary to do in the public interest, assign land dispensing with any of the provisions contained in the Rules and subject to such conditions, if any, as they impose. What is the "public interest" in this case to issue Ext. P5? It is submitted that there are LP schools, High Schools, and Higher Secondary Schools on the premises. The church, cemetery etc., are also in this land. But it is an admitted fact that the 5th respondent is an encroacher to the Government land and constructed these buildings. After encroachment on land, if churches or schools or other buildings are constructed on the Government's land, can the Government assign the land based on "public interest"? I am of the considered opinion that encroachers of government land are not entitled to any equity and there is no public interest to assign a property when there is admitted encroachment. The state machinery may be in difficulty to identify every encroachment in different parts of its territory. But once the encroachment is found out, the state machinery should work immediately to repossess the land, even if the encroachment is decades back, unless there is a legal impediment in taking possession of the same. No equity is available to such encroachers. The Land Assignment Act and Rules are not intended for enriching persons who hold extensive lands. But once the encroachment is found out, the state machinery should work immediately to repossess the land, even if the encroachment is decades back, unless there is a legal impediment in taking possession of the same. No equity is available to such encroachers. The Land Assignment Act and Rules are not intended for enriching persons who hold extensive lands. Assignment on the Registry of Government lands to such persons would defeat the very purpose of the Act and Rules. There is no vested right in any person to claim assignment on the registry of Government land. Encroaching on the government land and making illegal constructions on it will not give any vested right to encroachers. The government land should be allotted to the downtrodden and not to the wealthy and mighty people. The Division Bench of this Court in Varkey Abraham v. Secretary to Government (Revenue Department) and others [ 2007 (3) KHC 365 ] considered this point in detail. It will be better to extract the relevant paragraph of the above judgment. “15. The various provisions in the Kerala Government Land Assignment Act and the Kerala Land Assignment Rules would unmistakably show that the Act and Rules are intended to protect landless people by assigning to them Government lands for cultivation and other purposes. The Act provides for assignment of Government land absolutely or subject to such restrictions, limitations and conditions as may be prescribed. The Rules provides for assignment of lands on registry for purposes of personal cultivation. The Rules also provides for granting assignment of small extents of land for constructing houses and for the beneficial enjoyment of adjoining registered holdings. The Rules contain provisions for extending priority to landless people, members of Scheduled Caste and Scheduled Tribes, Ex-servicemen, persons disabled in active military service, persons who are dependants of those who are killed or disabled while in active military service, small holders whose family income is less than Rs.10,000/-, certain category of kumkidars etc. The procedure for assignment is also provided in the Rules. Provision is made for preparing the lists of lands to be reserved for Government or public purposes and the lands to be set apart for assignment on registry. The lists are to be approved by the Government or an authorized authority. The authority to approve the list of lands available for lease or license shall be District Collector. Provision is made for preparing the lists of lands to be reserved for Government or public purposes and the lands to be set apart for assignment on registry. The lists are to be approved by the Government or an authorized authority. The authority to approve the list of lands available for lease or license shall be District Collector. Various authorities are also provided to whom the applications under the different categories are to be submitted. We are of the view that the Act and Rules are not intended for enriching persons who hold extensive lands. Assignment on Registry of Government lands to such persons would defeat the very purpose of the Act and Rules. There is no vested right in any person to claim assignment on registry of Government land. The claim made by the petitioner originated and continued on encroachment. Such a person cannot have any legal right to claim that land. Provision for assignment of lands to encroachers is with a specific purpose. It is intended to protect such of the encroachers who are landless and downtrodden. They too have no vested right to get assignment on registry. The scheme of the Act and the Rules would unmistakably show it. Mighty people do not come anywhere near the benevolent protective umbrella of the Act and Rules. True, a person may desire to annex to his property the neighbouring lands, though it is Government land. Such a desire is not recognised or protected under the Act and Rules.” (underline supplied) 12. Moreover, this Court in M.Jayanthi v. Surendra Manjeswar and others [ 2007 (3) KHC 684 ], observed like this : “16. Government lands are national wealth. The concept of providing assignment of unoccupied lands in terms of R.7(2) of the Assignment Rules is predominantly aimed at providing holdings for the financially weaker sections of the society. Encroachments, which are not considered objectionable for the purpose of the Assignment Rules, going by R.2(cc), are encroachments on Government lands, which are available for assignment, and such encroachment must be by a person or a family eligible to get land, on registry under those Rules.” 13. The upshot of the above discussion is that, there is absolutely no “public interest” in this case to assign the land to the 5th respondent as per Ext P5. The upshot of the above discussion is that, there is absolutely no “public interest” in this case to assign the land to the 5th respondent as per Ext P5. A faint attempt is made in the counter affidavit saying that the assignment is as per Rule 7(1) of the Land Assignment Rules. It will be better to extract Rule 7(1) of the Land Assignment Rules. “7. Priority to be observed in assignment. -(1) Where any person is in occupation of Government lands under lease, whether current or time expired, or by way of encroachment not considered objectionable such land if such occupation is before the Ist day of August, 1971 shall be assigned to him on registry: Provided that the total extent of land, if any, owned or held by him in proprietary right or with security of tenure is less than the limits laid down in sub-rule (1) of Rule 5: Provided further that, in the case of any land set apart for assignment on registry to the members of Scheduled Caste/Scheduled Tribe and subsequently encroached upon by those persons who are landless and eligible for assignment of land under these Rules, such land may be assigned to such encroachers, only after setting apart equal extent of other suitable unoccupied area for the members of Scheduled Caste/Scheduled Tribe Community;” 14. A bare reading of the above provision itself makes it clear that the same will not justify Ext.P5 and it will only worsen the case of respondents. Rule 7 says about the priority to be observed in the assignment. The 5th respondent will not come anywhere near the priority persons mentioned in Rule 7. Moreover, it is stated in Rule 7 that where any person is in occupation of Government lands under lease whether current or time expired, or by way of encroachment not considered objectionable, such land, if such occupation is before the 1st day of August, 1971 shall be assigned to him on registry. It may be true that the 5th respondent was an encroacher before 01.08.1971. However, a land can be assigned to an encroacher only if it is not considered objectionable. Sec.2(cc) of the Rules defines encroachment not considered objectionable. It says that '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 the registry under these rules. However, a land can be assigned to an encroacher only if it is not considered objectionable. Sec.2(cc) of the Rules defines encroachment not considered objectionable. It says that '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 the registry under these rules. The 5th respondent will not come into any of the above categories. The 5th respondent is only an encroacher. Therefore, Rule 7(1) is also not applicable. The counsel for the 5th respondent relied on Rule 24 to justify the assignment. As I mentioned earlier, there is absolutely no public interest in this case to assign this much of land to the 5th respondent, who is admittedly an encroacher. Simply because some educational institutions and religious institutions or cemetery are constructed after the encroachment, the land cannot be assigned stating "public interest". Rule 24 has no application at all in this case. 15. The next question to be decided is whether this Court should interfere with the assignment order invoking the powers under Article 226 of the Constitution of India. When there is injustice, arbitrariness, and flagrant violation of law, the hands of this Court under Article 226 of the Constitution are not restricted. Poor landless tribals are agitating to get lands for their livelihood and agriculture. Their agitation reached up to the Secretariat of the State. Thousands of applications of tribals are pending for getting land is the contention of the petitioners. In such a situation, as per Ext.P5, huge Government land is assigned to the 5th respondent invoking the powers of the Land Assignment Act and Rules. I am of the considered opinion that this is not only illegal but infringes the constitutional rights of the tribals including the petitioners. This is nothing but piercing a knife to the hearts of the innocent ever smiling tribals in Wayanad. This Court cannot shut its eyes to these illegalities. Therefore, I am of the considered opinion that Ext.P5 and consequential patta issued to the 5th respondent is to be quashed. 16. It is true that some schools and other structures were constructed by the 5th respondent after encroaching on the Government land. This Court cannot shut its eyes to these illegalities. Therefore, I am of the considered opinion that Ext.P5 and consequential patta issued to the 5th respondent is to be quashed. 16. It is true that some schools and other structures were constructed by the 5th respondent after encroaching on the Government land. If the 5th respondent is interested in purchasing the land especially where the church, cemetery, and schools are situated paying market value as of today, the Government can think of selling the property to the 5th respondent based on the market value as of today assessed by the competent authorities. An option can be given to the 5th respondent to purchase the land based on the market value as of today. In such an event, the entire amount received by that transaction should be utilised for the welfare of tribals in Wayanad. If the 5th respondent is not agreeable to the same, the 5th respondent should be evicted from the property within six months after giving an option to purchase the land based on market value. An Action Taken Report should be filed by the Government before the Registrar General of this Court after complying with the directions. Therefore, this writ petition is disposed of with the following directions : 1) Ext.P5 and consequential patta issued to the 5th respondent are quashed. 2) The 1st respondent is directed to assess the market value of the property covered by Ext.P5 within two months from the date of receipt of a certified copy of this judgment and inform the 5th respondent about the total value of the property covered by Ext.P5 to find out whether they are ready to purchase the property or part of any property on market value. One month can be given to the 5th respondent to decide whether to purchase the land or not. If the 5th respondent is not ready to do the same within one month from the date of informing them about the market value, respondents 1 to 4 will take necessary steps to evict the 5th respondent from the property covered by Ext.P5 as expeditiously as possible, at any rate, within three months from the date of expiry of the time given to the 5th respondent for purchase. The land recovered shall be distributed to the eligible persons in accordance with law. The land recovered shall be distributed to the eligible persons in accordance with law. If the land is purchased by the 5th respondent on market value, the entire amount received by the government should be utilised for the welfare of the tribal community in Wayanad. 3) The 1st respondent will file an Action Taken Report before the Registrar General of this Court within eight months from today. 4) The registry will forward a copy of this judgment to Respondent Nos. 1 to 4 forthwith.