NAGARAJAN Vs. TAHSILDAR (SURVEY)

JUDGEMENT

(1.) Petitioner has approached this Court challenging Ext.P10 order whereby the request for assignment of land has been rejected by the rd respondent holding that the application for assignment is for an extent of four cents, and as per Rule 4(2)(a) of the Assignment of Land within Municipal and Corporation Areas Rules, 1995 the maximum extent of land that can be assigned on registry shall not exceed three cents in the Corporation areas. In Ext P10 order, the petitioner was directed to submit appropriate application in this regard by incorporating necessary changes in the extent of land. Petitioner submits that he is in possession of 4 cents of land in Sy.No.2123/7 of Thrissur Village, Thrissur Taluk, Thrissur District. Though the petitioner has a case that the said property was covered by a valid patta in favour of the petitioner's maternal grandfather as per patta No.60/1089 (M.E) issued by His Highness Maharaja of Cochin through Divan Peshkar at Ernakulam, when the petitioner made an application for receiving basic tax in respect of the said property, by Ext P4 communication issued by the 1st respondent, he was informed that the said property is categorized as revenue puramboke and directed the petitioner to file fresh application for assignment of land. Thereupon, the petitioner submitted Ext P5 application for the assignment of land. The said application was rejected by Ext P10 order by the 3rd respondent District Collector holding that the application for assignment is for an extent of four cents, wherein as per Rule 4(2)(a) of the Assignment of Land within Municipal and Corporation Areas Rules, 1995 the maximum extent of land that can be assigned on registry shall not exceed three cents in the Corporation areas. It is challenging the said order, the above writ petition has been filed.

(2.) Heard the learned counsel for the petitioner, the learned Government Pleader as well as the learned standing counsel for the 5th respondent.

(3.) The only question to be considered is as to whether the stand taken by the 3rd respondent in Ext P10 order is in accordance with the provisions of the Assignment of Land within Municipal and Corporation Areas Rules, 1995 (hereinafter referred to as 'Rules 1995'). The Rules 1995 was framed invoking the power conferred on the Government by Sec. 7 of the Kerala Government Land Assignment Act, 1960 which empowers the Government to make Rules. A perusal of Ext P10 order would reveal that the application submitted by the petitioner has been rejected by Ext P10 order relying on Rule 4 (2) (a) of the Rules 1995, which reads as follows: "4 (2) (a): The maximum extent of land that may be assigned on registry, when such land is indispensably required for the beneficial enjoyment of adjoining registered holdings, shall not exceed 5 cents in the Municipal areas and 3 cents in the Corporation areas." Admittedly, Ext P5 application is for assignment of 4 cents of land comprised in Sy.No.2123/7 of Thrissur Village, Thrissur Taluk, Thrissur District which is in Thrissur Corporation limits and therefore Rules 1995 will apply and going by Rule 4 (2) (a), the maximum extent of land that may be assigned on registry shall not exceed 3 cents in Corporation areas and relying on the same, the application has been rejected by Ext P10 order. But while rejecting the application as per Ext P10 order, the 3rd respondent did not take into consideration Note (1) to Rule 4 (2)(a) of the Rules 1995, which reads as follows: "Assignment of land for beneficial enjoyment of adjoining registered holdings shall be sanctioned in such a way that fragments of less than one cent or unusable bits of small extent consequent to such assignment are avoided, as far as possible." Going by the said Note (1) to Rule 4 (2)(a) of the Rules 1995, the assignment of land for beneficial enjoyment of adjoining registered holdings shall be sanctioned in such a way that fragments of less than one cent or unusable bits of small extent consequent to such assignment are avoided as far as possible. Here in the present case, assignment is sought for an extent of four cents and the application has been rejected by Ext.P10 for the reason that assignment to a maximum extent of only three cents could be granted in the Corporation area as per Rule 4(2)(a), but the said rejection is without taking into consideration Note (1) to Rule 4 (2)(a) of the Rules 1995.