T. VELAYUDHAN Vs. STATE OF KERALA AND OTHERS

JUDGEMENT

(1.) The petitioner T. Velayudhan filed this original petition under Art. 226 of the Constitution of India for the issuance of a writ of certiorari quashing Exts. P2, P3, P5 and P6 which ultimately culminated in Ext. P10 order. He also prays for a consequential declaration that he is entitled for assignment of the land under Rule 7 of the Kerala Government (Wynad Colonisation Scheme) Rules, 1969. Petitioner's wife purchased 16 cents of land adjacent to the disputed property of 42 cents which is situated in R.S. No. 113/3 of Nenmeni Village. Petitioner claims that he was a lessee of this land from 1964 on yearly lease and subsequent to 1969 the lease was not renewed. He claims that he is entitled to patta for this land under the Wynad Colonisation Scheme Rules of 1969 as he is in possession under an expired lease from the date anterior to 1970. Earlier, when his application was finally rejected under Ext. P8 order dated 21 -2-1987 by the Board of Revenue he challenged it in O.P. No. 2831/87K. This Court allowed the original petition and remanded the revision for fresh disposal after giving an opportunity to the petitioner to represent his case. After the revision was remanded due notice was issued and after hearing the petitioner Ext. P10 order dated 13-6-1990 was passed by the Board of Revenue. It is the validity of this final order that is now challenged in this original petition.

(2.) Mr. C.P. Damodaran Nayar, learned counsel for the petitioner, contends that he is in possession of 42 cents of land in R.S. No. 113/3 from 1964 and as he continues to be in possession under an expired lease he comes within the ambit of Rule 7 of the Kerala Government (Wynad Colonisation Scheme) Rules, 1969 and hence he is entitled to be granted a patta. The writ petition is filed on the assumption that the land in R.S. No. 113/3 is included in the lands which are assignable under the Wynad Colonisation Scheme. In support of his argument he mainly relies upon certain stray observations in Ext P9 order of this Court. Mr. C.P. Damodaran Nayar contends that in view of the earlier order of this Court, Ext. P9, it is not now open to the Government to contend that this land is not included in the lands which are assignable under the Wynad Colonisation Scheme. The observations in Ext. P9 judgment are binding upon the Government and hence the Government cannot contend that this land is not included in the lands assignable under the Wynad Colonisation Scheme. He also raised an alternative contention on the ground that in case the Colonisation Scheme does not apply, he is certainly entitled to assignment of this land of 42 cents under the Land Assignment Rules.

(3.) On behalf of the State, learned Government Pleader contends that the land in R.S. No. 113/3 is actually the compound of village office. Petitioner is the encroacher in the office compound in May, 1983. Earlier, this land was put up in auction on yearly leases and from 1964 to 1969 the petitioner was the highest bidder. After 1969-70 he was never in possession. In 1983, when he unauthorisedly encroached into the land the proceedings were taken and then the present litigation commenced. The revenue records clearly show that this land is not included in the lands meant for Wynad Colonisation Scheme. The alternative argument that he is entitled to assignment of the land under the Land Assignment Rules is not tenable because the encroachment here is an objectionable encroachment in the land reserved for a specific purpose. He never applied for assignment of the land under the Land Assignment Rules and hence that argument is not open to the petitioner.