PUSHPAVALLY Vs. STATE

JUDGEMENT

(1.) Petitioners in O. P. Nos. 4274/1990 and 6346/1990 are the appellants in these appeals. They challenge Ext. P5 order, G. O. MS. 2457 90/RD dated 28.3.1990, whereby the Government assigned three cents of land in R. S. No. 93 of Chevayoor Village, Kozhikode Taluk to the 4th respondent, a freedom fighter. Petitioner in O. P. 4274/1990 owns and possesses a shop building adjacent to the land assigned to the 4th respondent; while petitioner in O. P. 6346/1990 is the owner of a Cinema Theatre situated adjacent to the said land. Main argument advanced by the Petitioners in the Original petitions was that the provisions contained in R.6 and 7 of the Kerala Land Assignment Rules, hereinafter referred to as "the Rules", have not been complied with while passing Ext. P5 order. It is the further case of the petitioners that this land, which is now assigned to the 4th respondent, is required by them for the beneficial enjoyment of their properties.

(2.) 4th respondent, it is not disputed before us, is a freedom fighter. He wanted to construct a memorial in the name of the heroes of the freedom fighters. He also represented to the Government that he is not possessed of any asset other than the Freedom Fighter's Pension, which is granted by the Central Government, and so requested the Government to reduce the land value. Government got the value of the land assessed by the Collector of the district. The Collector fixed the value at 3,500/- per cent. It was also recommended mat the price may be reduced from Rs. 3,500/- to Rs. 1,000/-. Government by Ext. P5 order dt. 28.3.1990 ordered to assign the three Cents of land under the Rules to the 4th respondent on realising the value at the rate of Rs. 1,000/- per Cent.

(3.) Ext. P5 order marked in O. P. 6346/1990 is the order by which Government assigned the land in favour of the 4th respondent. That order narrates the circumstances under which the Government decided to assign the land to the 4th respondent. Eventhough the Government's power to assign the land is not traced to any provision of the Act and the Rules, R.24 of the Rules in unmistakable terms confers power on the Government to assign the land. That rule begins with non obstante clause; notwithstanding anything contained in the rules Government may assign land dispensing any of the provisions contained in the Rules and subject to such conditions as they may impose. The only restriction that is imposed on the Government in this regard is that the assignment should be in public interest. If the Government consider that it is necessary to assign the land in public interest, the order of the Government assigning the land is not open to challenge. In C.K. Kochitiathi v. State of Kerala, 1967 KLT 186 , a Division Bench of this Court took the view that Government is like any private party, free to take such steps as it pleases in accordance with law for disposing of its property and for evicting trespassers thereon, subject to statutory limitations. The statutory limitation that has been incorporated in R.24 is that the assignment should be in public interest If that public interest is established, then the assignment will not be open to challenge, as held in the above case, under Art.226 of the Constitution. In the instant case, Ext. P5 makes mention of the circumstances which led to the assignment of land to the 4th respondent, who is a freedom fighter. 4th respondent in his counter affidavit has asserted that the land is meant for erecting a memorial in memory of the heroes who lost their lives in the freedom struggle. According to us, a step to honour the heroes who became martyrs in the freedom struggle is one in public interest. Citizens of India have to remember those heroes with reverence. When the Government assigned the land for the said purpose, it has to be held that Government considered the assignment necessary in public interest.