C.H. MOHAMMED Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, who is stated to be in possession of an extent of 2.7 acres of land in various survey numbers in Delampady Village in Kasaragod Taluk, is aggrieved by the decisions taken by the authorities under the Kerala Land Conservancy Act, finding him to be an encroacher over an extent of 0.75 acres of land in Sy.No.44pt. of Delampady Village, which, according to the petitioner, formed part of his initial holding. It is the case of the petitioner that he had been holding on to this extent of land for over 40 years, and had made some improvements on the land. Sometime in 2010, a notice was issued to the petitioner, under Section 12 of the Kerala Land Conservancy Act, by the 5th respondent. The petitioner, on receipt of the said notice, filed his objections to the same. The 5th respondent, however, by Ext.P2 order, found that the petitioner had encroached onto an extent of 0.75 acres of government land, and directed him to immediately vacate and remove the unauthorised construction in the encroached land. The 5th respondent also imposed a fine of Rs.50,000/- under Section 7 of the Kerala Land Conservancy Act, as amended. It would merit observation at this stage that in Ext.P2 order, while finding the petitioner to be an encroacher in respect of the land, the 5th respondent also found that the petitioner was not a landless person, and inasmuch as he already had 2.7 acres of land under his ownership, the extent of 0.75 acres could not be assigned to him under the provisions of the Kerala Land Assignment Act.

(2.) Aggrieved by the said order of the 5th respondent, the petitioner preferred an appeal before the Appellate authority [4th respondent]. By Ext.P4 order of the 4th respondent, the appeal was rejected, and the order of the 5th respondent sustained. This led the petitioner to prefer a further revision before the District Collector. By Ext.P6 order dated 3.3.2013, the District Collector rejected the revision petition. In the said order, the District Collector found that the petitioner's was a clear case of encroachment of Government land, and he was consequently to be evicted. The said order also reveals that a request was made by the petitioner, in the alternate, to consider his case for an assignment of the land for otherwise, he would be thrown out to the streets and rendered homeless. The said alternate submission of the petitioner did not find favour with the revision authority, who found that the petitioner was already in possession of 2.7 acres of land, and therefore, he could not be considered as a landless person. Although the petitioner preferred a second revision before the Secretary, Board of Revenue, by Ext.P8 communication, he was informed that a second revision would not lie under the Land Conservancy Act. Exts.P2, P4 and P6 orders of the authorities under the Kerala Land Conservancy Act are impugned in this writ petition.

(3.) A counter affidavit has been filed on behalf of the 4th respondent, where the details regarding the encroachment by the petitioner, are reiterated. In particular, the respondent also avers that the land that was encroached by the petitioner was one that was reserved for assignment to landless persons. It is contended therefore that the prayers in the writ petition cannot be granted since there are other persons who are more entitled to the benefit of land assignment of government land.