VINCY CHERIAN CHERIAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The writ petition is filed challenging Exts. P11 and P13, for a direction to the respondents to assign an extent of 99.61 acres of Government land in Sy. Nos. 229/1, 2 and 3 of Anaviratty Village in Devikulam Taluk, Idukki District in favour of the petitioners, to declare that the Cardamom Rules (Travancore) 1935, (hereinafter referred as '1935 Rules') is still in force and they are entitled for assignment of land as per the said Rules. Ext. P11 is a Government Order informing the first petitioner/appellant that her request for assigning Government land cannot be granted as per the Cardamom Rules. Ext. P13 is another Government Order dated 20/06/2000 issued after considering the claim for assignment of land in the light of the judgment in OP No. 6736 of 1998, declining to grant assignment on the ground that the 1935 Rules is no longer in force. It is also opined that lease of land for cardamom cultivation is made only as per Rules for Lease of Government Lands for Cardamom Cultivation, 1961 (hereinafter referred as the '1961, Cardamom Lease Rules') and since the said Rules does not apply for assignment of land for cardamom cultivation, request for assignment of land cannot be granted. The learned Single Judge by judgment dated 28/07/2004 dismissed the writ petition reserving liberty to the petitioners to move for assignment of land on lease for cardamom cultivation under the '1961, Cardamom Lease Rules'. While dismissing the writ petition, the learned Single Judge opined that '1935 Rules' were repealed by virtue of Section 9(3) of the KLA Act 1960. The learned Single Judge also found that though by virtue of Section 4 of the Interpretation and General Clauses Act, the rights if any accrued and surviving will not be affected by the repeal of the Rules, it was found that the original applicant Mr. Ouseph Varkey did not pursue or enforce his right and no concluded contract came into existence, which enabled his legal heirs to seek the assignment on registry.

(2.) The petitioners preferred an appeal before the Division Bench of this Court. This Court allowed the appeal setting aside Ext. P13 and directed the Government to pass fresh orders as per the Rules existed on the date of the original application filed by the predecessor in interest of the petitioners. The State preferred a Special Leave Petition before the Supreme Court, which was converted as Civil Appeal No. 4131 of 2008. By order dated 13/05/2008 the Supreme Court set aside the judgment of the Division Bench and remitted the matter for fresh consideration keeping open all the contentions of the parties. The Supreme Court having considered the rival contentions urged by the parties formed an opinion that the following questions are required to be considered:

(3.) Before proceeding further, we would state in brief the factual situation in the case.