PARAMESWARAN PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) These three petitions having been consolidated, because one of the several legal issues raised in each is common. The petitioners claim that the Governments assignments of land are in Contravention of what the Travancore-Cochin Government Land Assignment Act No. XXXIII of 1950, hereafter referred to as the Act provides, are illegal and violative of their rights thereby conferred. For the purpose of deciding the aforesaid issue it is necessary to narrate the averments in each petition, and thereafter adjudicate on the arguments urged before us.

(2.) The two petitioners in O.P. 419 of 1957 complain against the assignment of 50 cents of land to the Secretary, Martyrs Committee, Alleppey, & aver its being without their getting any opportunity to object under S.4 of the Act The affidavit in support of the petition states that Sy. No. 592/1-B and C of the Alleppey Village is a burial ground within the Municipal town of Alleppey, and had been for two hundred years used as such by the citizens of Alleppey town. The Municipal Council of Alleppey city is stated to have about 16 years ago allotted 50 cents of the area for Nairs, 17 cents for Vellalas, 8 cents for Reddiars, 22 cents for Ezhavas, 1 1/2 cents for Kammalas, and the remaining for others. The affidavit further states that what had been allotted for burying Nairs had been separated by boundary walls, and many of the petitioners forefathers and relations had been buried or cremated there. The main complaint is that the Alleppey District Committee of the Communist Party having applied to the then Government for 50 cents from the burial ground for the purpose of erecting memorial to martyrs of the Party, the Government having consulted the Municipality, the Council having by a majority resolution agreed to exchange it for other land, a telegram was sent on October 21, 1957 to the District Collector, directing the aforesaid area to be resumed and handed over to the Secretary, Martyrs Committee, Alleppey. The concluding part of the complaint is that the Tahsildar had later handed over the area to the third respondent without the procedure under S.4 of the Act having been followed. The Municipal resolution to exchange is said to be ultra vires, and the Governments direction to be in contravention of the Act, and Art.25. This writ petition has impleaded the State of Karala as the first, the Alleppey Municipality as the second, and the Secretary of the Martyrs Committee, as the third respondents. The counter affidavits do not deny 50 cents of land belonging to the Municipality having been exchanged and assigned to the third respondent for purpose of the memorial, but deny the area being part of the burial ground for residents of Alleppey or the petitioners ancestors being either buried or cremated there. The case set up is that the area allotted formed part of another land, where only those who had died in Vayalar Punnapra struggle had been buried or cremated. The exchange as well as the assignment is claimed to be according to law and not against provisions of the Act. We do not think it is necessary to adjudicate on whether the assignment area forms part of the general cremation ground, or whether the Municipality had legally exchanged the area, or whether Art.25 been contravened; for, should S.4 of the Act be found to be mandatory and to cover all assignments of Government lands the failure to observe it would be fatal to the third respondents title, and the petitioners would be justly fee aggrieved of not having any opportunity of urging their claims against it. The decisive issue, therefore, in this writ petition is whether the land could be assigned in disregard of the provisions of the section.

(3.) The petitioner in O.P. 457/57 also raises a similar question, where the complaint is against assignments made on September 4, 1957; which consist of grants of 6 cents of Government land to the 2nd respondent and of another 6 cents in favour of the 3rd respondent, who are Warders in the Central Jail, Trivandrum; and the lands are from survey No. 1759 of Anchamada Village, Trivandrum. The petitioners case is that he had objected, but grants been made without the objections being determined Recording to S.4 of the Act; he is injuriously affected, because he owns registered holding in Survey No. 1767/1 of the same village; had access, over the disputed lands that lay between the holding and the public road, to the road, which would now be not available. The petitioners claim the grants not to be bona fide, to be arbitrary and to be in contravention of the prevailing rules for assigning Government lands. The position taken by the State and two grantees is that the Government is not bound to observe the procedure laid under S.4 of the Act in making every grant. R.31 authorises departures, the petitioners access is to another road from another side, the access mentioned in the petition is still available through a lane, which is not covered by the grants, and the Warders being landless persons having been after due enquiry granted the areas to build houses without mala fide and in pursuance of the general policy to provide houses for such persons. There is thus the same issue in this petition, that can be adjudicated upon without facts disputed by the writ petitioners being investigated or determined.