Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 1202 (KER)

Muneeswaran S/o Mariyappan 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 petitioner under Article 226 of the Constitution of India seeking the following reliefs: “(i) Issue an appropriate writ, order or direction against respondent nos. 3 to 5 not to interfere with the peaceful possession, occupation and enjoyment of the house property of the petitioner extending 5 cents of property comprised in Sy No.917 of KDH Village, covered by Exts.P1 and P2 documents. (ii) Issue a writ of mandamus directing the respondents not to dispossess the petitioner from his house plot during the pendency of the proceedings” 2. Going by the averments in the writ petition, the petitioner belongs to scheduled caste agricultural workers community. The father of the petitioner obtained 5 cents of property in survey No.917 of Kannan Devan Hills Village more than 30 years ago. After constructing a hut, the family of the petitioner has been in residential occupation of the property. After the death of his father, the petitioner reconstructed the house. Ext.P1 certificate of possession dated 06.11.1992 was issued to the petitioner by the Village Officer of KDH Village. The house is situated in the limits of Munnar Grama Panchayat and the petitioner was issued with Ext.P2 ownership certificate dated 16.06.2016 by the Secretary of the Munnar Grama Panchayat wherein the house number is shown as IX/1558. The petitioner is having Ext.P3 ration card and Ext.P4 Aadhar card at the very same address. The property in the possession of the petitioner is an assignable government land and several assignments have been made in the neighbourhood. The petitioner preferred application for assignment before the 3 rd respondent Tahsildar, Devikularm Taluk, on 08.08.2010, which bears the file No.556 of 2010 of the office of the 4 th respondent the Special Tahsildar (Land Assignment) to whom it was later transferred. Since no action was followed even after submitting several applications for assignment, the petitioner approached this Court with the above writ petition. 3. The 5th respondent Special Tahsildar, Munnar, filed a counter affidavit opposing the averments in the writ petition.Paragraphs 3 to 14 of that counter affidavit read thus: “3. It is submitted that the Government as per GO(MS) No.201/2010/RD dated 31.06.2010 created a special Revenue Office to protect the Government land in Munnar area. 3. The 5th respondent Special Tahsildar, Munnar, filed a counter affidavit opposing the averments in the writ petition.Paragraphs 3 to 14 of that counter affidavit read thus: “3. It is submitted that the Government as per GO(MS) No.201/2010/RD dated 31.06.2010 created a special Revenue Office to protect the Government land in Munnar area. It is the duty of the special office to find out encroachment into the Government land prevent unauthorized construction and to protect the Government land. During the routine checks conducted from the office of the 5 th respondent it was noticed that the petitioner has encroached into the Government land comprised in Sy. No.917 in KDH Village (now Munnar Village). However, since the 5 th respondent is not vested with the powers to proceed under the Kerala Land Conservancy Act, the Village Officer, Munnar was directed to report encroachment to the Tahsildar (LR) Devikulam. On the face of actions under Land Conservancy Act, the petitioner approached this Hon’ble Court and filed the present writ petition. 4. It is submitted that there are a lot of encroachments into the Government property in Munnar and the neighbouring Villages. A lot of buildings, both residential and commercial have been constructed in the encroached lands. Even though the petitioner claims that he was born and brought up in the house situated in the property under question, it is evident from Exhibits P1, P2 and P3 that he has changed his residence. In Exhibit P1 and P2 the address of the petitioner is shown as Old Laksham Colony, Munnar whereas in Exhibit P3 it is shown as MG Colony, Munnar. It is evident from these Exhibits that the petitioner having a house in Old Laksham Colony, has deliberately encroached into the Government land and constructed another building. Now he is trying for assignment of the encroached land, concealing the facts. 5. It is submitted that the Village Officer has authority to issue possession certificate for registered land only. Exhibit P1, possession certificate issued by the Village Officer is not legally valid and the genuineness of the above certificate is to be verified as several such possession certificates were fabricated by the encroachers. It is submitted that the address of the petitioner is shown as Old Laksham Colony, Munnar. Exhibit P2, Residential Certificate shows that he has a residential house which is numbered as 9/1558 in Old Laksham Colony from 1997 onwards. It is submitted that the address of the petitioner is shown as Old Laksham Colony, Munnar. Exhibit P2, Residential Certificate shows that he has a residential house which is numbered as 9/1558 in Old Laksham Colony from 1997 onwards. But he encroached into Government property and constructed another house which he managed to get numbered as 10/1033 and obtained Ration Card in that address which is evident from Exhibit P3. Similarly, in Exhibit P4 also, his address is shown as Karthika House, MG Colony. It is evident from these Exhibits that the petitioner who is having a residential building, which is numbered as 9/1558 has encroached the Government land in another area and constructed another house. 6. The petitioner who is already having a house which is numbered as 9/1558 in Laksham Colony, Munnar, as evident from Exhibit P2, is trying for assignment of another bit of land for which he is not eligible. However, the present position of the assignment application said to have been submitted by the petitioner is to be obtained from the fourth respondent. 7. It is submitted that the petitioner who owns a house in Old Laksham Colony, as evident from Exhibit P2, is trying to get another bit of land assigned in his favour, for which he is not eligible. If the petitioner has any contention that ineligible persons got assignment, it is open to him to approach the authorities concerned for cancellation of such assignment. But he has not raised any specific contentions as to irregularities in assignment. 8. It is admitted that the Government have enacted Kannan Devan Hills (Resumption of land) Act in 1971 for resumption and assignment of land in the KDH Village. A separate procedure is prescribed in the above Act for assignment of land and the District Collector is the competent authority to assign any land in the KDH Village. 9. If the petitioner has got any specific contentions regarding any assignment made under Kannan Devan Hills (Reservation and Assignment of Vested Lands) Rules 1977 it is open to him to complaint against such assignment before the authorities. No such complaints have been filed by him so far. Moreover, the petitioner has not pointed out any such particular case. 10. It is submitted that any provisions contained in the rule will be applicable for assignment of land even if not specified in the Government Order. No such complaints have been filed by him so far. Moreover, the petitioner has not pointed out any such particular case. 10. It is submitted that any provisions contained in the rule will be applicable for assignment of land even if not specified in the Government Order. By Exhibit P5, the Government have only given sanction to distribute the land. All the conditions stipulated in the rule will be applicable for assignment. 11. The petitioner has raised only vague contentions regarding assignment of land. He has not raised any specific instances of violation of rule. If the petitioner has any specific contention about violation of rule regarding assignment land, it is open for him to approach the concerned authorities with complaint. But he has not filed any such complaint till date. 12. The office of the 5 th respondent is constituted for identifying the encroachments and illegal constructions in Munnar area. The 5 th respondent cannot proceed against encroachments under Land Conservancy Act, since he is not the authority. It is submitted that encroachment into Government land can be evicted only in accordance with the provisions under the Land Conservancy Act. The 5 th respondent, who is not the authority under Land Conservancy Act is not empowered to evict the petitioner. 13. It is submitted that the petitioner, who is having land and a residential house in Old Laksham Colony in Munnar, as evident from Exhibit P2, is trying to get another bit of land assigned in favour of him, for which he is not eligible. 14. It is submitted that the petitioner is already having a house in Laksham Colony as evident from Exhibit P2. He is not eligible for assignment of another house plot. It is submitted that the petitioner has encroached into the Government property. Such unauthorized occupation is liable to be evicted under the Land Conservancy Act. It is submitted that no steps has been taken from this respondent's office to evict the petitioner without following the procedure under Land Conservancy Act.” 4. To the counter affidavit, the petitioner filed a reply affidavit.Paragraph 3 of that reply affidavit reads thus: “3. The main contention against the Writ Petition is in paragraph 4 of the counter affidavit which states ‘in Exhibits P1 and P2 the address of the petitioner is shown as Old Laksham Colony, Munnar whereas in Exhibit P3 it is shown as M.G. Colony, Munnar’. The main contention against the Writ Petition is in paragraph 4 of the counter affidavit which states ‘in Exhibits P1 and P2 the address of the petitioner is shown as Old Laksham Colony, Munnar whereas in Exhibit P3 it is shown as M.G. Colony, Munnar’. 1t is submitted that the said contention cannot be used against the petitioner since Old Laksham Colony is known as M.G. Colony, subsequently. The petitioner has nothing to do with the said contention and whether the petitioner hold another property or not as contended in the counter affidavit can be found out by enquiry at the instance of the Village Officer. Similarly, the contention contained in paragraph 6 of the counter affidavit that ‘However the present position of the assignment application said to have been submitted by the petitioner is to be obtained from the 4 th respondent’ also made an enquiry at the instance of the respondents.” 5. Heard the learned counsel for the petitioner and the learned Senior Government Pleader. 6. The learned counsel for the petitioner submitted that the petitioner has been in occupation of 5 cents of property for more than 30 years and it is an assignable land. Even after filing several applications, he was not assigned with the property. In the counter affidavit filed by the 5 th respondent, it is without proper verification stated that the petitioner owns a house in Old Laksham Colony based on Ext.P2 possession certificate as well as the address shown in Exts.P1 and P2 documents. But the Old Laksham colony itself is later known as MG colony and therefore the petitioner has no other property in his possession. 7. On the other hand, the learned Senior Government Pleader submitted that the occupation of the petitioner of the property in question is only an encroachment and he has another house and land in Laksham colony as evident from Ext.P2. 8. The petitioner is claiming assignment of property in survey No.917 of Kannan Devan Hills Village which according to him has been initially in the possession of his father and then his possession for the last more than 30 years. 9. 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 21.01.1971. 9. 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 21.01.1971. 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 the 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 Stale 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.” 10. As far as the assignment of such lands covered by KDH Act, Section 9 is relevant. The said Section reads as under: “9. As far as the assignment of such lands covered by 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.” 11. 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. 12. Though the petitioner contends that he filed several applications for assignment of lands in his possession, he has not produced copies of any such application in this writ petition. According to the petitioner, the application for assignment was made by him to the 3 rd respondent Tahsildar. But as noted above, the authority to decide the assignment of land under the KDH Act is the District Collector. 13. The address of the petitioner is shown in Exts.P1 and P2 documents as Laksham colony, whereas it is shown as MG colony in Exts P3 ration card and P4 Aadhaar card. The respondents would contend that the petitioner has property and a house in Laksham Colony. On the other hand, according to the petitioner, the very same property, which was previously known as Laksham Colony is at present known as MG Colony by change of name. 14. The respondents would contend that the petitioner has property and a house in Laksham Colony. On the other hand, according to the petitioner, the very same property, which was previously known as Laksham Colony is at present known as MG Colony by change of name. 14. The petitioner has not produced any document showing that the previous Laksham colony itself is now renamed as the MG colony. Moreover, the petitioner has no case that the property in question will fall under Section 3(3) of the KDH Act. A pleading to that effect is conspicuously absent in the writ petition. The relief sought in the instant writ petition is one intended to prevent the respondents from interfering with the possession of the petitioner of the property in question, claiming continuous possession for more than 30 years. However, no legal right over the property is pleaded in the writ petition so as to claim the relief by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 15. The contention of the respondents is that the petitioner is an encroacher on the Government land and is liable to be evicted under the Land Conservancy Act. According to the respondents, it is only by following the procedure prescribed under the Land Conservancy Act that the petitioner will be evicted. In such circumstances, the petitioner can raise all his contentions regarding his right, if any, over the property in question before the authorities concerned in such eviction proceedings. In such circumstances, we find no merit in the writ petition. 16. In the result, the writ petition stands dismissed, leaving open all the legal and factual contentions raised by the petitioner to be decided in appropriate proceedings.