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2025 DIGILAW 1201 (KER)

R. Selvapackiam S/o Raj v. State of Kerala

2025-05-19

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : Muralee Krishna, J. 1. This writ petition is filed by the petitioners under Article 226 of the Constitution of India seeking the following reliefs: (i) Issue an appropriate writ, order or direction against respondent nos. 2 and 3 to consider and pass appropriate orders on Exhibit P7 representation submitted by the petitioners after notice and hearing within a time frame. (ii) issue a writ of mandamus directing the respondents not to dispossess the petitioners from their house plots during the pendency of the proceedings.” 2. Going by the averments in the writ petition, the petitioners were residing at Anthoniyar Colony wherein heavy landslide happened on 25.07.2005 and thereafter it was resolved by the Government to rehabilitate the families in Anthoniyar Colony in another suitable place in the village. Subsequently, in the year 2008 by virtue of Ext.P1 order dated 20.11.2008, the Government has earmarked house plots in survey No.912 of Munnar Village wherein the petitioners’ eligibility is declared in first schedule. Accordingly, the petitioners have house plots in survey No.912 of Munnar Village and the 1 st petitioner constructed a house in the place allotted to him. The petitioners are permanent residents in the village and they have no other property. The petitioners submitted various applications and representations before the authorities for assignment of property in survey No.912 where house plots are earmarked for the settlers of Anthoniyar Colony. The last such representation was Ext.P7 dated 15.06.2023 submitted by the petitioners before the 2 nd respondent District Collector. However, the applications for assignment submitted by the petitioners are still pending unattended by respondents 2 and 3. Some of the local revenue officials have nexus with the land-grabbing mafia and it is the tactic to obviate the eligible people for assignment of land from the picture so that there will be vacant land to encroach upon at the disposal of the land mafia. The matter being so, the 1 st petitioner was served with Ext.P10 order dated 26.06.2023 issued by the 4 th respondent Village Officer, Munnar, prohibiting him from proceeding with construction in the property. Thereafter the petitioners approached this Court with the above writ petition. 3. The 2 nd respondent District Collector, Idukki filed a counter affidavit opposing the averments in the writ petition. Paragraphs 3 to 12 of that counter affidavit read thus: “3. It is submitted that on 15. Thereafter the petitioners approached this Court with the above writ petition. 3. The 2 nd respondent District Collector, Idukki filed a counter affidavit opposing the averments in the writ petition. Paragraphs 3 to 12 of that counter affidavit read thus: “3. It is submitted that on 15. 06.2023 the petitioners and certain others submitted an application before this respondent raising certain concerns over the assignment of lands in ‘Anthoniyar Colony’ in Munnar village along with request for pattayam. The land claimed to be in the possession is comprised in Sy. No. 912 of Munnar Village. The said application is marked as Ext.P7 in the petition and it was received in this office and the same was forwarded to the third respondent on 30.06.2023 as per letter numbered DCIDK/2618/2018-C2 for report. 4. The petitioners claim to be legal heirs of settlers of ‘Anthoniyar Colony’ in Munnar. They have produced copies of Aadhar cards as proof of their claim. The petitioners rely on Exhibit P1 Government order to establish their eligibility for assignment of the land. They also rely on the Kannan Devan Hills (Resumption of Lands) Act, 1971 and the Kannan Devan Hills (Reservation and Assignment of Vested Lands) Rules, 1977 to describe the eligibility for the assignment. 5. As per Section 3 of the Kannan Devan Hills (Resumption of Lands) Act 1971 (KDH Act in short), with effect from 21 st day of January, 1971, the possession of all lands situated in the village was transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the lessees and all other persons, including rights of mortgages and holders of encumbrances, in respect of such lands, was extinguished. Only plantations, buildings, playgrounds, burial grounds and land in possession of Government and the like are expressly exempted from vesting. From the date on which KDH Act came into force, any person was in possession of any land coming with the KDH Village and not exempted under clauses (a) to (d) of sub section 2 of Section 3 of the KDH Act, the possession vests with the Government. Admittedly, the land in possession of the applicant is not exempted from vesting under Section 3 of the Act. Therefore the land in question is found to be vested with Government. Admittedly, the land in possession of the applicant is not exempted from vesting under Section 3 of the Act. Therefore the land in question is found to be vested with Government. Unless the petitioners fall in exempted category under Section 3 of the KDH Act, they cannot claim any title or legal possession over the land included in the Act. Therefore, the claim for assignment on the basis of possession before or after 1971 tums out to be irrelevant. 6. It is submitted that the assignment of lands vested with the Government in Kannan Devan Hills Village of Devikulam Taluk is governed by Kannan Devan Hills (Reservation and Assignment of Vested Land) Rules, 1977 (KDH Rules in short). The provisions are summarized below. Out of the total land vested with the Government, so much of land necessary for purposes directed towards the promotion of agriculture or the welfare of the agricultural population to be settled on such lands shall be reserved by the Government by notification in the official Gazette. Remaining lands may be assigned on registry to agriculturalists and agricultural labourers in accordance with the KDH Rules. 7. It is submitted that the lands available for assignment shall be assigned to agriculturalists and agricultural labourers for personal cultivation or for house-sites. Maximum limit is 1 Hectare. Assignee shall not hold other lands more than 10 cents, and the income shall be below Rs. 12,000. Out of the land available for assignments, 25% shall be reserved for SC/ST and 10% shall be reserved for Ex-servicemen. Remaining 65% shall be assigned in the order of preference. 8. It is submitted that a list including the lands available for assignment shall be published under a notification and applications has to be invited. After receipt of applications, list of eligible applicants under each category has to be published. If available land is less than that covered by the applications, eligibility will be determined by drawing lots. The particular plot that is to be allotted to an individual applicant shall also be determined by drawing lots. 9. From the foregoing provisions, it is clear that the provisions of the KDH Rules do not honour an existing possession for assignment in favour of the occupant. The particular plot that is to be allotted to an individual applicant shall also be determined by drawing lots. 9. From the foregoing provisions, it is clear that the provisions of the KDH Rules do not honour an existing possession for assignment in favour of the occupant. Even if the land is found to be assignable, the same is transferred to a common pool for inviting application from all the eligible people and the land to be assigned is determined by drawing lots. Therefore, the applicants do not become eligible for outright assignment of the possessed land in their favour. 10. It is submitted that the first petitioner had attempted to carry out certain construction activities in the land possessed by him. Against the construction the fourth respondent issued a stop memo numbered 18/23 dated 26.06.2023. As per the directions in the interim order of this Hon’ble Court in WP (C) 1801/2010 dated 21.01.2010 constructions in Munnar is mandated by obtaining no- objection certificate from the Revenue department. Since the petitioner has not obtained the same the Village Officer Munnar served the stop memo by way of Ext. P10. 11. Moreover, as per the Government letter No. A2/199/2018-Rev dated 01.08.2018 constructions in the non-patta lands cannot be issued without NOC. The said direction was issued because issuing NOC to the constructions in lands in illegal possession may be treated as approval for the unauthorised occupation in Government lands. Hence such constructions can only be treated as encroachment under the said clause and KDH Act 1971. True copy of the letter dated 01.08.2018 is produced herewith and marked as Ext. R2(a). 12. It is submitted that the contention of the petitioners that they are in occupation of Government property in Sy No.912 in Munnar Village is to be ascertained through the Village Officer. It is also not clear whether the petitioners have any other landed properties. The eligibility for assignment can be decided only after conducting a detailed enquiry and personal hearing of the petitioners.” 4. Heard the learned counsel for the petitioners and the learned Senior Government Pleader for the respondents. 5. The learned counsel for the petitioners submitted that as per the counter affidavit filed by the 2 nd respondent, the Government is not sure about the possession of the property by the petitioners. Heard the learned counsel for the petitioners and the learned Senior Government Pleader for the respondents. 5. The learned counsel for the petitioners submitted that as per the counter affidavit filed by the 2 nd respondent, the Government is not sure about the possession of the property by the petitioners. It is stated in the counter affidavit that the claim of occupation of Government property in survey No.912 of Munnar village is to be ascertained through the Village Officer. Hence a direction may be given to the revenue officials to conduct necessary enquiry and dispose of the application for assignment filed by the petitioners. 6. The learned Senior Government Pleader argued that after the enactment of Kannan Devan Hills (Resumption of Lands) Act, 1971 (KDH Act, in short) no person can claim assignment of land bypassing the provisions in that Act. The land in possession of the petitioners is not exempted from vesting under Section 3 of the Act. Therefore, the claim of assignment on the basis of possession after the year 2008 by the petitioners is liable to be rejected. 7. According to the petitioners, they were resettled in survey No.912 of Munnar Village after a heavy landslide in Anthoniyar colony in the year 2005. They are claiming assignment of land in survey No.912 of Munnar Village on the basis of Exts. P1 and P9 Government policies. 8. Admittedly, the land in question is situated within the area wherein KDH Act is notified as applicable by the Government. As per Section 1(2) of the Act, it came into force on 21.1.1971. As per Section 1(3) of the Act, it applies to the land comprising the revenue village of Kannan Devan Hills in the Devikulam Taluk. Section 3 of the Act deals with vesting of possession of all lands situated in Kannan Devan Village in Devikulam Taluk in the Government. Section 3 of the KDH Act reads as under: “3. Vesting of possession of certain lands. Section 3 of the Act deals with vesting of possession of all lands situated in Kannan Devan Village in Devikulam Taluk in the Government. Section 3 of the KDH Act reads as under: “3. Vesting of possession of certain lands. (1) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the possession of all lands situate in the Kannan Devan Hills village in the Devikulam taluk of the Kottayam district shall stand transferred to and vest in the Government free from all encumbrances, and the right, title and interest of the lessees and all other persons, including rights of mortgagees and holders of encumbrances, in respect of such lands, shall stand extinguished. (2) Nothing contained in sub-section (1) shall apply in respect of- (a) plantations, other than plantations belonging to trespassers; (b) buildings, other than buildings belonging to trespassers, and lands appurtenant to, and necessary for the convenient enjoyment or use of, such buildings; (c) play-grounds and burial and burning grounds; (d) lands in the possession of the Central Government or any State Government or the Kerala State Electricity Board. (3) Nothing contained in sub-section (1) shall apply in respect of so much extent of land held by a lessee under his personal cultivation as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto.” 9. As far as assignment of such lands covered by the KDH Act, Section 9 is relevant. The said Section reads as under: “9. Assignment of lands - (1) The Government shall, after reserving such extent of the lands, the possession of which has vested in the Government under sub-section (1) of section 3 (other than lands, the possession of which has been restored under section 4), as may be necessary for purposes directed towards the promotion of agriculture or the welfare of the agricultural population to be settled on such lands, assign on registry the remaining lands to agriculturists and agricultural labourers in such manner, on such terms and subject to such conditions and restrictions, as may be prescribed. (2) The Government may, by notification in the Gazette, delegate their power of assignment under sub-section (1) to the Collector, subject to such restrictions and control as may be specified in the notification.” 10. A reading of Section 9(2) of the KDH Act would make it clear that the power to assign the land vested in the Government under the provisions of the said Act is on the Government and such power can be delegated by notification in the Gazette to the District Collector. If the property is part of the vested land under the KDH Act, necessarily, the provisions of the KDH Act and Rules made thereunder would apply for assignment of the said land. 11. According to the petitioners, they are resettled in the property in question, being directed by the Government after a landslide occurred in the place wherein they have been residing till the year 2005. But, the petitioners have not produced any document which shows such a direction by the Government permitting the petitioners to occupy the property in question. As noted above the property in question is situated in Kannan Devan Hills Village. But the petitioners have no case that the property is falling under Section 3(3) of the KDH Act, so as to claim assignment. The relief sought in the instant writ petition is to direct the respondents 2 and 3 to consider Ext.P7 representation submitted by the petitioners for assignment of the land in question by the 2 nd respondent, and also a writ of mandamus commanding the respondents not to dispossess them from the land in question. Such a direction cannot be issued by exercising extraordinary jurisdiction under Article 226 of the Constitution of India, without proving statutory backing for the claim raised by the petitioners. 12. Having considered the pleadings and materials on record and the submissions made at the Bar, we find no merits in the writ petition. 13. In the result, the writ petition stands dismissed. However, the legal and factual contentions raised by the petitioners are left open to be decided in appropriate proceedings.