Land Assignment; R. Haridas Vs. State [Kerala High Court, 14-09-2016]

Land Assignment – Construction in the lands assigned for personal cultivation – The subsequent assignees of the original pattaadar cannot claim any right other than that conferred on the original assignee, which Assignment on Registry was specifically for the purpose of personal cultivation.

Land Assignment – Construction in the lands assigned for personal cultivation – The mere fact that certificates were issued as to there being no encroachment into government puramboke, forest lands and the like cannot enable an assignee to violate the specific conditions of assignment. The assignee would have a right to hold the land and enjoy it under the terms of assignment and any violation thereat would be a reason for cancellation of the assignment made.

Land Assignment – Construction in the lands assigned for personal cultivation – When assignment is made for a specific purpose it cannot be said that if there is no prohibition in using it for any other purpose then an assignee or a subsequent owner could use it for any purpose to which a land is normally put to. The prohibition has to be read into the terms of assessment when by virtue of a statutory provision the assignment is made for a specific purpose. The passage of time would not change the character of the assignment nor would any subsequent assignee be entitled to claim rights of enjoyment of a property, without any fetters, for reason of the property having changed hands, once or for umpteen times.

Land Assignment – The petitioners would not be entitled to make any construction for commercial activity in the lands assigned for personal cultivation.

Environment – Western Ghats – The Revenue authorities, a law unto themselves, have been violating the provisions and colluding with the assignees causing gross damage to the ecology and environment. In any event the loss caused to the petitioners would be of no consequence when weighed with the larger public interest of averting ecological imbalance and preserving pristine lands from haphazard development; which otherwise as studies reveal; would even affect the climate of the Indian peninsula.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K. Vinod Chandran, J.

W.P.(C) Nos.32143 of 2016-P & 32145 of 2016-P

Dated this the 14th day of November, 2016

PETITIONER(S)

R. HARIDAS, THIRUVANANTHAPURAM.

BY ADVS. SRI.MATHEW A KUZHALANADAN SRI.KURIAKOSE VARGHESE.

RESPONDENT(S)

1. THE STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695001.

2. DISTRICT COLLECTOR, IDUKKI-685602.

3. TAHSILDAR, DEVIKULAM-685602.

4. VILLAGE OFFICER, PALLIVASAL-685602.

R1 TO R4 ADDITIONAL ADVOCATE GENERAL SRI.RENJITH THAMPAN I/B.GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR.

JUDGMENT

More of less similar contentions are addressed in both the writ petitions, which challenge the stop memo issued by the Village Officer against the construction of two resorts, alleged by the State to be in violation of the clear terms of assignment.

2. W.P.(C) No.32145 of 2016 is filed by a person who is in possession of 00.24.28 hectares of land comprised in Survey No.1/1-4 of Block No.15 of Pallivasal Village, Devikulam Taluk, Idukki District. The land was originally assigned to one Manoharan as per Exhibit P2 Patta. The same was conveyed to the petitioner by the pattaadar in Exhibit P2 and the petitioner has been paying tax for the property, as is seen by Exhibit P1. The petitioner, with the intention of constructing a Resort in the said land, made an application before the Additional Tahsildar for certifying the actual situation with respect to the property, as is seen from the subject in Exhibit P3. The Additional Tahsildar, by Exhibit P3, certified that the property is in the possession of the petitioner, who has paid tax with respect to the said property which is not comprised of puramboke land, or belonging to the Scheduled Tribes, Forest land or the like. The certificate was for the purpose of production before the Pallivasal Panchayat.

3. Based on Exhibit P3, Exhibit P4 building permit is said to have been issued. The petitioner intended construction of a building with Ground plus 7 Floors, totalling an area of 4578.23 square metres. The application filed before the Panchayat was also transmitted to the Town Planner, Idukki, as is necessitated in the

# Kerala Panchayat Building Rules, 2011

[for brevity “KPBR, 2011”] for Group A2 constructions. The Town Planner, Idukki had issued Exhibit P5. Obviously on the basis of the directions of a Division Bench of this Court, an application for a No Objection Certificate [for brevity “NOC”] was filed by the petitioner before the Tahsildar, in which Exhibit P6 was passed. Exhibit P6 is a communication to the Sub Collector, Devikulam, stating that there could be a NOC issued with respect to the property for the purpose of construction of a building. On that basis, the petitioner is said to have resumed and continued the construction; upon which the petitioner was faced with Exhibit P8 stop memo issued by the Village Officer.

4. The petitioner in W.P.(C) No.32143 of 2016 is in possession of an extent of 00.1943 hectares of land, comprised in the very same re-survey number and block of the very same Village, Taluk and District. The Patta issued is seen at Exhibit P2 and the petitioner had purchased the same from the pattaadar, as in the other case; after which tax was paid as is evidenced by Exhibit P1. Similar application, as in the other writ petition, was made by the petitioner before the Tahsildar, on which Exhibit P3 certificate was issued; based on which Exhibit P5 building permit was issued by the Panchayat. The petitioner herein too has similar contentions; when he was faced with Exhibit P6 stop memo, wherein the Re-survey is shown as No.1/1-6, which is an obvious mistake and the correct Re-survey number is 1/1-4.

5. The learned Counsel appearing for the petitioners would contend that there is nothing in the

# Kerala Government Land Assignment Act, 1960

[for brevity “Assignment Act”] and the

# Kerala Land Assignment Rules, 1964

[for brevity “Assignment Rules”] prohibiting such construction or the requirement of a NOC for carrying on such construction. It is contended that the insistence for a NOC was based on the order of a Division Bench, which is produced by the State as Annexure R2(a). A reading of the order, according to the learned Counsel, would indicate that the directions issued therein were only with respect to the fraudulent Pattas issued and the encroachment into Government and Forest lands made by various persons based on which it was directed that a NOC should be obtained from the Revenue Department for carrying on construction within the Munnar area. The various documents produced by the petitioners, which are the certificates issued by the Revenue Department, would indicate that the property possessed by the respective petitioners are not part of any encroachment and in such circumstance, there cannot be a requirement for a NOC. In any event, the certificates issued by the Tahsildar would indicate that the Revenue Department does not have any objection and in such circumstance, there can be no prohibition of the construction carried on, on the basis of a valid permit issued by the Panchayat. It is also argued that the action now taken by the Revenue authorities is without any sanction of the statute or statutory rules and the same is an overreach of the powers conferred on the Local Self Government Authority by the

# Kerala Panchayat Raj Act, 1994

[for brevity KPR Act, 1994], the power to enact which has to be traced directly to the Constitution of India.

6. The petitioners, who bonafide purchased the property from the pattaadar, cannot be restricted from using the same to its full advantage and in accordance with their intentions and there is absolutely no restriction either in the statute, rules or the Patta issued from any particular activity being carried on. The stop memo issued, impugned in both the writ petitions, cannot find support either from the order dated 21/01/2010 passed in W.P.(C) No.1801 of 2010 of the High Court or the District Collector’s order No.C11-2573/2016 dated 20/04/2016; which are specifically relied on. The order of the High Court, as has been contended by the petitioners, does not stand in the way of the petitioners being granted a NOC and the order of the District Collector dated 20/04/2016 is under the

# Kerala Land Assignment (Regularisation of Occupations of Forest Lands prior to 1-1-1977) Special Rules, 1993

[for brevity “Special Rules of 1993”], which specifically prohibits a commercial activity other than small shops; argue learned Counsel.

7. The learned Additional Advocate General appearing for the State would assert, based on the Assignment Act and the Rules, that there could be no change of user of assigned lands. The entire area of Munnar, comprised in the western ghats, belonged to the Government and the assignment was made for specific purposes of personal cultivation, house-sites and beneficial enjoyment of adjoining registered holdings. The extent of the property which has been assigned by the Pattas, produced in the respective writ petitions, would show that the assignment was for the purpose of ‘personal cultivation’. Any other use to which the land is put would be violation of the terms of assignment and the Government could necessarily take back the lands so assigned; if the land is put to any use contrary to the terms of assignment. It is also submitted that a construction, especially in the style and nature which is intended by the petitioners, would interfere with the ecological balance of the area. It is also argued that only considering the fact that over the years there has been assignments made of lands; callously by the District administration; capriciously without reference to any of the statutes and against public interest that too often motivated by gross corruption, that the High Court passed Annexure R2(a) order; based on which a NOC is required, which is also implemented by Circular dated 09/06/2016, produced as Annexure R2(b). Annexure R2(c) judgment relied on by the petitioners is challenged by the State, in a Writ Appeal [W.A.No.1437 of 2016].

8. The various contentions raised by the petitioners, of the right to enjoy their property, legitimate expectation on that count and on account of the certificates issued by the Revenue authorities, the absence of any prohibition in the statute and the considerable finance having been expended for construction activities commenced and continued are to be decided on the anvil of the title acquired of the property, which, admittedly, were Government lands assigned under a statute. The petitioners are assignees of the original pattaadar and cannot have any rights over and above that possessed by the original assignee.

9. The Assignment Rules, by Rule 4, as has been pointed out by the learned Additional Advocate General, has three specific purposes; for which alone land may be assigned. These are – personal cultivation, house-sites and beneficial enjoyment of adjoining registered holdings. Rules 5 and 6 prescribe a limit for the extent of land which could be assigned for these different purposes. For house-site and beneficial enjoyment of adjoining registered holdings, as the Rule existed at that point of time, only 25 cents could be assigned; which was later amended in 2005 as 15 cents, as per Rule 6. In such circumstance, the original assignment made, as evidenced by Exhibit P2 in both the writ petitions, admittedly, is not for house-site or for beneficial enjoyment. Such an extent could have been assigned only under Rule 5 for the purpose of personal cultivation. The assignment having been specifically made under a statute and the Rules framed thereunder, none can have a legitimate expectation of enjoyment of the property over and above the purpose for which the same has been assigned.

10. The subsequent assignees of the original pattaadar cannot claim any right other than that conferred on the original assignee, which Assignment on Registry was specifically for the purpose of personal cultivation. The legitimate expectation has to be contoured on those lines and none can claim an absolute right and enjoyment of the property, which is beyond and in violation of, the specific terms of assignment. There cannot hence; a right be ferreted out on the absence of a specific prohibition in the Act or rules; of a user other than that for which the land is assigned. When assignment is made for a specific purpose it cannot be said that if there is no prohibition in using it for any other purpose then an assignee or a subsequent owner could use it for any purpose to which a land is normally put to. The prohibition has to be read into the terms of assessment when by virtue of a statutory provision the assignment is made for a specific purpose. The passage of time would not change the character of the assignment nor would any subsequent assignee be entitled to claim rights of enjoyment of a property, without any fetters, for reason of the property having changed hands, once or for umpteen times. The essence is in the assignment made, for a specific purpose which survives time and tide; the tide in this instance being characterized by any subsequent alienation effected on the whole or in parcels, unless there is a statutory amendment carried out. These conditions are also incorporated as ‘Conditions’ in the Patta and the respective Pattas produced are incomplete copies as will be presently noticed.

11. The order of the Division Bench of this Court produced as Annexure R2(a) cannot be given a restrictive interpretation as applying to only encroachment or possession on the strength of the illegal Pattas. The area comprised in the villages, specifically noticed by the Division Bench, are hilly tracts earlier remaining as forest lands, in the possession of the State, which are assigned for specific purposes of building a personal residence, or to have beneficial enjoyment of lands adjoining registered holdings and for personal cultivation. There was never an assignment intended for commercial purpose since that would go against the spirit of the statute which sanction such assignment and would also cause ecological imbalance in the area rich in biodiversity. This is the spirit of the order at Annexure R2(a) which was fully imbibed by the District Collector in the Circular issued at Annexure R2(b).

12. Annexure R2(b) Circular was issued in the wake of the order passed by the Division Bench. The District Collector took into account the large number of applications for NOC forwarded to the office of the District Collector and delegated the power to issue NOC in case of constructions for personal residences alone to the Revenue Divisional Officer, Devikulam, that too, to the then incumbent, subject again to the conditions laid down in the Circular. It was also specifically ordered that any construction for commercial purposes shall be summarily rejected, except in the case of small shops under the Kerala Land Assignment (Regularisation of Occupation of Forest Lands prior to 01/01/1977) Special Rules 1998 (Special Rules of 1998). It was emphasized that commercial activity is normally a violation of the assignment conditions in case of assignments made under the various statutory rules applicable for the area, including the Assignment Rules of 1964. The Circular took care of the serious apprehensions expressed by the Division Bench of this Court and at the same time addressed the grievances of the general public as to the stalemate in making residential constructions for personal use.

13. The Circular regulated the affairs with respect to the constructions in the area and there could have been no NOC issued for constructions of resorts or the like, which would be commercial in nature. It is a matter of concern and quiet a surprise that the revenue authorities in the district have been issuing recommendations like Exhibit P6; for carrying out construction activities without noticing the embargo created insofar as the constructions intended at promoting commercial activity.

14. In this context the contention of the petitioners that the building activities in any area is the exclusive premise of the local self government institution has also to be looked at. The prescription for a permit to be obtained from the local authority is only so far as complying with any master plan for development applicable to the area and compliance of the building rules applicable to the panchayats and municipalities, as brought out under the respective statutes. This cannot create a carte blanche in favour of a permit holder to make a construction in an assigned land which would go specifically against the prescriptions laid down in the statute for such assignment. The right to possess the assigned land flows from that other statute and the purpose of such assignment cannot be rendered insignificant on the mere strength of a permit issued under the building rules, applicable for the area. The mandate for any construction to be compliant to the building rules, essentially is a regulatory measure, insofar as providing for sufficient set-backs, ensuring the peaceful and secure co-existence of the neighbouring property owners as also enabling the local authority to have a say in the overall development of the area. The said power conferred on the local authority cannot overwhelm the statutory prescription with respect to the assignment. The right to construct would depend upon the right obtained on assignment and the terms and conditions of such assignment.

15. It is also argued by the petitioners that the impugned stop memos, place unnecessary and unwarranted reliance on the order of the Division Bench as also the order of the District Collector dated 20/04/2016. The reliance placed on the order of the Division Bench has been, already, held to be proper. The further contention is with respect to the order of the District Collector which is produced along with the reply affidavit as Exhibit P11. The said order is one passed under the Special Rules of 1993 which specifically prohibits a commercial activity other than construction of small shop rooms. This Court has already found that even in the absence of such a prohibition in the Assignment Rules of 1964, essentially and necessarily the purpose of assignment has to be looked at when permitting a commercial activity. The purposes being specific and explicit there can be no other activity permitted in the land so assigned. The absence of a prohibition is immaterial, the purpose being very clear; which cannot be digressed from.

16. The plea of legitimate expectation is specious going by the statutory prescriptions, the order of the Division Bench and the Circular brought out by the revenue-head of the district. There can be no doubt that going by the provisions of the statute the assignment, granted to the vendors of the petitioners, is for personal cultivation. Rule 8 of the Assignment Rules of 1964 by sub-rule (2) specifically provides that the assignee or a member of his family or his successor-in-interest shall reside in the land, if it is granted for house site, or shall personally cultivate the same, if it is granted for cultivation and such residence or cultivation, as the case may be, shall commence within a period of one year from the date of receipt of the Patta. It is also prescribed that the registry shall be liable to be cancelled for contravention of the provisions in sub-rule (1) or (2) of Rule 8. These are incorporated as conditions in Appendix II of Form of Patta (under Rule 9 (2) of the Assignment rules); the full format of which is not produced in either of the writ petitions. It does not necessarily follow that if the cultivation has been commenced and then stopped there could be no cancellation. The intention of such assignment is to enable the assignee to carry on cultivation which has a larger social aspect embedded within the very intention to assign; being the promotion of cultivation of cash or food crops enriching the economy of the State and ensuring the availability of food and fodder. Hence any time it is found that the purpose for assignment is diverted from, the State could definitely take proceedings for cancellation of the assignment and either vest the lands back with the Government or assign it to others for the purpose of cultivation.

17. The assignee from the original pattaadar, it is to be reiterated, cannot have any claim over and above that conferred on the pattaadar by the assignment. The mere fact that certificates were issued as to there being no encroachment into government puramboke, forest lands and the like cannot enable an assignee to violate the specific conditions of assignment. The assignee would have a right to hold the land and enjoy it under the terms of assignment and any violation thereat would be a reason for cancellation of the assignment made. The petitioners were well aware of the assignment made as they had purchased the land on the strength of the Patta held by their vendors; an incomplete copy of which is produced herein. The insistence for a NOC was made by the Division Bench only realising the vagaries of the officials of the State, which even the investigation conducted by the State revealed. There was a general helplessness expressed by the State insofar as the activities carried on, in one of the ecological hotspots in the world (Western Ghats) {so named, ironically, for threat of impending extinction of the flora and fauna, endemic (unique) to that area} ; on account of which this Court stepped in. The order passed cannot also be said to be in violation or in addition to the provisions of the statute for assignment; especially since the Division Bench only insisted on a NOC for constructions to be carried on, to ensure that no construction violating the terms of assignment is carried on in the area.

18. It cannot also be said that the petitioners were legitimately led by the various certificates issued by the revenue authorities as relied on by them in the memorandum of the writ petitions. It has already been found that the authorities have been lax in issuing such recommendations against the order of the Division Bench of this Court and also the Circular issued by the district head. Yet again there can be no legitimate expectation claimed since admittedly the petitioners applied for a NOC from the Secretary Revenue Department wherein relaxation of Patta conditions, for construction of special residential building was sought for. There was no such sanction obtained and the certificates produced were not the NOC as is clearly discernible from the language employed in them.

19. This Court in arriving at the above findings is further fortified by the judgment of a learned Single Judge dated 13/08/2009 in W.P.(C) No.9605 of 2008, K.R. Ramanan & Another v. Kerala State Pollution Control Board & Others Similar contentions were raised therein, wherein the factual aspects differed only on account of the assignment having been granted under the Special Rules for Assignment of Government Lands for Rubber Cultivation, 1960, in which lands; quarrying operations were conducted. The quarry owners therein also raised similar arguments of the quarrying permits being issued by the Government and the royalty having been regularly paid to the Government. Based on the specific terms of assignment, which was for the purpose of rubber cultivation, it was held that a possession certificate granted by the Village Officer to apply for quarrying permit or issuance of the quarrying permit by the Geologist would not confer any right on the petitioners to carry on an activity in the assigned lands which are different from the specific purpose for which the assignment was made. Similar conditions in the Special Rules of assignment were noticed to find that the lands are not only liable to be taken back by the Government but also the owners are liable to be proceeded against for the entire value of the granite stones quarried from the property. The silence of the Tahsildar and the Geologist in the counter affidavits filed with respect to the violations of the conditions of the patta was noticed with surprise. There were directions issued to cancel the Pattas issued in that case and also to take action against similarly situated assignees. The reliance placed by the petitioners on Annexure R2 (c) judgment is irrelevant since the learned Single Judge reserved the right of the State to proceed for violation of terms of assignment; which is the specific ground raised herein by the State.

20. It is quite disconcerting that despite the various directions issued by this Court time and again; two of which as noticed in the afore-cited judgment and also in the matter pending before the Division Bench, has not changed the situation a bit. The Revenue authorities, a law unto themselves, have been violating the provisions and colluding with the assignees causing gross damage to the ecology and environment. Be that as it may; the petitioners herein were quite aware of the conditions of assignment; though their ignorance, if at all, would have been of little consequence in the teeth of the statutory prescriptions. The relaxation sought for, having not been granted, the petitioners commenced and continued the construction at their risk and peril. They cannot now turn round and contend that the revenue authorities led them to believe that a construction could be carried on in the assigned land and in that belief considerable monies were expended to commence and continue a construction.

21. In any event the loss caused to the petitioners would be of no consequence when weighed with the larger public interest of averting ecological imbalance and preserving pristine lands from haphazard development; which otherwise as studies reveal; would even affect the climate of the Indian peninsula. The compelling conclusion on such reasoning would be that there could be no interference caused to the stop memos issued by the revenue authorities. The petitioners would not be entitled to make any construction for commercial activity in the lands assigned for personal cultivation. There cannot be any large-scale construction as intended by the petitioners. The writ petitions would stand dismissed with a further direction to the Revenue Authorities to explore and finalise action against the various holdings which violate the terms of assignment including that of the petitioners.

Writ petitions are dismissed being devoid of merit and the the parties shall suffer their respective costs.

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