M BHASKARAN PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner in OP No. 3931 of 1985 is the appellant. 1.94 acres of land in Sy. No. 299/12A & B of Alwaye Village was acquired in 1952 under the Land Acquisition Act from the 4th respondent, for the purpose of National Highway. The National Highway was constructed in 1954 and only about 1 acre of land was utilised for the construction. Petitioner alleges that he is the owner of the eastern property and accordingly he applied for assignment of the unutilised land. Thereupon, out of the balance area available, under Ext. P1 dated 10-7-1962 50 cents of land was given on kuthakapattom to the petitioner for a period of 12 years, with a condition that if Government required the land for any other purposes, it should be surrendered. While so, petitioner filed an application Ext. P8 dated 21-12-1979 before the Advisor to the then Governor for assignment of the land to him. In the meanwhile, the 3rd respondent Tahsildar issued a notice Ext. P2 dated 31-12-1979 to surrender the land leased out to the petitioner under Ext. P1 as it was needed for public purposes. The notice was served on 25-4-1980. Thereafter, the 50 cents of land was taken possession of from the petitioner on 2-5-1980. On Ext. P8 application filed by the petitioner he was given a reply, evidenced by Ext. P6 dated 11-7-1980, by the Government stating that the land cannot be assigned to him as the same was required for public purposes. It is seen that thereafter also the petitioner had applied to Government for assignment of the land and Ext. P3 is a petition filed before the concerned Minister on 23-11-1982 reminding him of the petitioner's earlier petitions dated 7-2-1982 and 25-3-1982 for assignment and for taking suitable action in the matter. Petitioner has also produced a letter by the Superintending Engineer, National Highway to the District Collector, Ernakulam-Ext. P4 dated 18-3-1981- in which it is stated that out of the remaining land only 22 metres from the top edge is necessary for further widening of the road. The petitioner alleged in the O.P. that he came to know that Government had passed an order dated 29-11-1984 directing the 2nd respondent Collector to reconvey 90 cents out of 1 acre 10 cents to the 4th respondent from whom the land was originally acquired in 1952. Petitioner has produced the aforesaid order of the Government as Ext. P7 along with his reply affidavit Petitioner challenged Ext. P7 mainly on the ground that the procedure contemplated under the Kerala Land Assignment Act, 1960 and the Rules made thereunder has not been followed in passing the order assigning the land to the 4th respondent. He further contended that when once the land is acquired under the Land Acquisition Act and possession taken, the land absolutely vests in Government and no assignment by Government is possible without complying with the provisions contained in the aforesaid Act and the Rules. It is his case that the application for assignment evidenced by Ext. P3 is pending and no orders have yet been passed on the same. He contended that the land can be utilised only for agricultural purposes and Government acted without jurisdiction in ordering assignment of the land to the 4th respondent, without comparing with the provisions of the Kerala Land Assignment Act and the Rules.

(2.) The State filed a counter affidavit contending that 1.94 acres of land was acquired in 1955 for the purpose of National Highway, out of which 1.10 acres was lying unutilised. They denied the fact that the petitioner is the owner of the adjacent property. Government had issued orders regarding the disposal of unutilised portion of the acquired land by G.O.(MS) 530/67 dated 30-10-1967 and reconveyance of unutilised acquired land is governed by the said G.O. According to Government, assignment of such land is not governed by the Land Assignment Act or the Rules and they are free to reconvey the land to the original owner in accordance with the aforesaid G.O. The 4th respondent, original owner, had filed a petition before Government and after considering the case Government decided to reconvey 90 cents of land to him under Ext. P7 order. Their further case is that under the G.O. of 1967 the original owner has got every right to get the unutilised land reconveyed to him. It is alleged by them that neither the Government Departments nor the local bodies made any request for the unutilised land and in these circumstances Government decided to reconvey the land after realising the value paid to the 4th respondent under the land acquisition proceedings. They contended that the petitioner's application for assignment of the land had already been rejected and it had become final and that the petitioner has no locus standi to file the Original Petition.

(3.) The 4th respondent also filed a counter affidavit, practically raising the same contentions. He had also raised a contention that even if the Kerala Land Assignment Act and the Rules are applicable to the land in question, under R.24 Government have overriding power to assign lands without complying with any of the provisions contained in the aforesaid Rules and that the assignment to him was made in exercise of that power. According to him the petitioner has no locus standi to challenge the assignment made in his favour.