SHIBU VARGHESE Vs. STATE OF KERALA

JUDGEMENT

(1.) since common issues are involved in all these cases, they are heard and disposed of by this common judgment. W.P.(C) No.4670 of 2022 will be treated as the leading case.

(2.) Petitioner has approached this Court seeking to quash Ext.P10 and for a consequential direction to implement Ext.P4. Petitioner is having an extent of 8.10 Ares of property in Block No.12 in Survey No.296 of Peringanad Village in Adoor Taluk, Pathanamthitta. The property of the petitioner was acquired by the 1st respondent as per the provisions of the Land Acquisition Act, 1894 during 1970-1980 for the purpose of constructing an irrigation canal under the Kallada Irrigation Project (KIP). A total extent of 17 hectares of property was acquired from 29 different individuals including the petitioner herein for the said project. The acquired property is a long narrow strip of land with an average width of 15 metres and the same virtually divides petitioner's larger extent of property through its middle. The original plan for constructing irrigation canal was abandoned by respondents 1 to 3 several years ago and for the last several years the said respondents are not taking any steps for utilizing this strip of land for intended purpose of acquisition or for any other purposes. Accordingly the property remained in the defacto possession of the petitioner and he is utilising this property for agricultural purposes and for beneficial enjoyment of the larger extent of property. During 2008-2010 respondents 1 and 4 distributed a portion of the similarly acquired properties from eight different land owners to certain landless persons under "Mission Mode Project (MMP) towards the programme of making Kerala a Zero Landless (Citizens) State". However the property of the petitioner was not distributed and is even now remaining in defacto possession of the petitioner. Petitioner would contend that such distribution of land acquired for construction of a canal will virtually divide the larger extent of land which is being used for residential/agricultural purposes and if such strip of land is given for the purpose of house construction, even access to the remaining portion of the land will be denied. It is further contended that the acquired strip of land is not fit for constructing houses as there is no sufficient space for constructing toilets and wells. In the said circumstance petitioner approached respondents 1 to 4 with a request to take necessary steps for assigning the property which is absolutely necessary for the beneficial enjoyment of the remaining property. The specific grievance of the petitioner is that the property was initially acquired for canal in the frontage portion of the property owned by the petitioner and if the land is taken away and distributed to landless persons, there will be no road access and the property of the petitioner would become landlocked and the lack of road frontage/access would cause severe loss and depreciation to the remaining property of the petitioner. Based on the request submitted by the petitioners, respondents 1 and 2 obtained reports from respondents 4 and 5 and after considering various aspects including the uneven lie and unsuitability of land for other purposes and the hardships that would be caused to the petitioner, the 1st respondent agreed to consider the request for assignment submitted by the petitioner. The officers of the 1st respondent conducted elaborate enquiry in that regard and Ext.P1 report was submitted by the Village Officer, Peringanadu before the Tahsildar, Adoor. A perusal of Ext.P1 would reveal that the aspects pertaining to the absolute necessity of assignment of acquired land to the petitioner for the purposes of cultivation, house site and beneficial enjoyment of adjoining registered holding, etc. was elaborately considered. The nuisance and injury that may be caused to the petitioner in the event of distribution of land to others was also considered at length in Ext.P1. After such thorough enquiry and deliberation at different levels, it was agreed that the acquired property will be allotted back to the petitioner on the specific condition that property having five times larger extent than the property sought to be assigned must be made available/relinquished for the public purpose of distribution to the landless persons. Respondents 1 and 2 had also fixed specifications for the land that is to be relinquished, which includes access to road, availability of electricity, proximity to Government officers, shops, hospitals, etc. In the said circumstances petitioner identified different such properties, including those in the Palakkad District. Later the 5th respondent got the said lands verified through the Village Officer, Sholayar and zeroed down to most suitable land as evident from Ext.P2 report of the Village Officer. After finding that the land identified by the petitioner situated in survey Nos.1781 and 1782 of Sholayar Vilalge for relinquishment is suitable for the purpose of constructing houses/distributing to landless persons, the 5th respondent submitted Ext.P3 report and sketch before the 1st respondent to that effect. It is submitted that as per Ext.P2 the land identified in Sholayar has convenient road access and is suitable in all aspects for housing scheme. Thereafter the 1st respondent took a policy decision to return/assign the property to the petitioner on the specific condition that the petitioner should relinquish property having five times more area than the property sought to be assigned back. The 1st respondent further authorised the 4th respondent to assign the property mentioned above to the petitioner under Rule 24 of the Kerala Land Assignment Rules, 1964 as per Ext.P4 Government Order dtd. 18/1/2016. A perusal of Ext.P4 would reveal that it made a balance between the interest of the petitioner and State in as much as the petitioner's purpose of beneficial enjoyment of adjoining land and policy of the State to provide land for distribution of landless persons was satisfied. In furtherance of Ext.P4 Government Order petitioner purchased 40.49 Ares of land in Survey No.1781 of Sholayar Village as per Ext.P5 document and mutated the same in the name of the petitioner and land tax was also paid. Later on petitioner submitted necessary application in prescribed form (Form A) under Rule 3 of the Kerala Land Relinquishment Rules, 1958 before the 6th respondent. It is also stated that petitioner and others submitted all necessary documents before the Office of Sub Collector, Ottappalam on 12/4/2016. In the meanwhile Tahsildar, Adoor issued Ext.P6 communication dtd. 25/2/2016 directing the petitioner to produce all necessary documents evidencing relinquishment of land for taking further action for assignment of land in terms of Ext.P4. Later the property purchased as per Ext.P5 was taken over by the Government in furtherance of the land relinquishment application submitted by the petitioner. While so there was a change of the Government and thereafter the 1st respondent issued Ext.P7 order dtd. 25/5/2017 cancelling Ext.P4 order claiming that the decision taken as per ExtP4 is contrary to the settled position of law in this regard by the Apex Court. Petitioner submits that the reason stated in Ext.P7 to cancel Ext.P4 is without any basis. In the said circumstance petitioner submitted a request before the 1st respondent seeking review of Ext.P7 order, but the same was rejected as per Ext.P8. Thereupon petitioner has approached this Court filing W.P.(C) No.34990 of 2018 and connected cases and this Court as per Ext.P9 common judgment remitted the matter back to the Government to re-examine the aspect pertaining to public interest after setting aside Exts.P7 and P8. The Government completely overlooking the direction issued in Ext.P9 judgment issued Ext.P10 order rejecting the claim of the petitioner.

(3.) The specific case of the petitioners is that Ext.P10 order is issued contrary to the directions in Ext.P9 judgment. It is the contention of the petitioners that the finding in Ext.P9 that if the grievance of the petitioners is as projected in the writ petitions and the land is required for the enjoyment of the remaining land, certainly their claim would satisfy the test of public interest and a direction was issued in Ext.P9 judgment to the 1st respondent to identify the public interest relatable to the petitioners. But while issuing Ext.P10 order the said aspect was not at all considered by the 1st respondent. It is the further contention of the petitioners that the market value of the property mentioned in Ext.P10 is highly inflated and arrived without any basis. Earlier the District Collector, Pathanamthitta has sought for a report from the Tahsildar, Adoor as per Ext.P11 letter regarding the fair value and market value of the properties sought to be returned. Thereupon Ext.P12 report was submitted by the Village Officer, Peringanad regarding the fair value and market value of the property. Later as per Ext.P13 report dtd. 2/11/2019 the Village Officer, Peringanadu fixed an amount of Rs.81,461.00 as the value of category I land and Rs.65,169.00 was fixed as the value of category II land. As per the records the said assessments of the Village Officer was made after comparing ten contemporary sale deeds registered between 2017 and 2019 at Adoor SRO in respect of the properties allegedly comparable to the properties in question. A perusal of the report of the Village Officer revealed that the Village Officer has referred to the value of the property situated within the limits of Adoor Municipality for assessing the value situated within the Panchayat area. Thereupon as per Ext.P14 report by the Tahsildar the value of the property was re-assessed as per report dtd. 1/11/2019 and re-fixed as Rs.97,644.00 per Are for category I land and Rs.81,370.00 per Are for category II land. Petitioners would contend that a perusal of Ext.P14 report by the Tahsildar would show that the value recorded in Exts.P14 and P10 are arrived without any legal and logical basis. No valid documents have been relied on by the Tahsildar to fix the price as stipulated in the valuation certificate and there is absolutely no basis for fixing the market value of the property as seen in Ext.P10. Petitioners rely on Ext.P15 to show the fair value of the land which is sought to be assigned in favour of the petitioners. It is aggrieved by the same that the present writ petitions have been filed.