LATHEEF Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER has filed this Original Petition for a writ of mandamus to the first respondent to produce a copy of G. O. Rt. No 3338/93 and to issue a copy of it to the petitioner and also for quashing the said Government Order and for an order directing respondents 5 to 9 from executing any document in respect of the lands in Sy. No. 304/10a, which are ordered to be assigned in favour of respondents 5 to 7 and also to declare that the no objection certificates issued by respondents 3 and 4 are invalid.

(2.) PETITIONER is a businessman conducting business in Perumbavoor Town near the Municipal Bus Stand. He has filed this Original Petition to protect public interest by preventing the misuse of public property and its diversion into the hands of private individuals by abuse of government powers. PETITIONER has alleged as follows: In October, 1986 he came to know that proceedings were being taken to assign certain extent of land belonging to the Government in favour of respondents 5, 6 and 7, who are not eligible to get assignment of government land. The said action was taken at the instance of the 8th respondent who has great influence on political circles. Against the said action, petitioner filed O. P. No. 7451 of 1986 before this Court and this Court disposed of the O. P. on 26. 12. 1992 issuing a direction to the Government to reconsider the application for assignment to poramboke land, with specific reference to the question whether respondents 5 to 7 are eligible for such assignment. This Court also directed that the petitioner should be heard before passing of orders. Ext. P1 is the judgment. The land proposed to be assigned in favour of respondents 5 to 7 are portions of Sy. No. 304/10a of Perumbavoor Village, which is situated in a very important commercial centre. It is on the northern side of the road in front of Perumbavoor Municipal Bus Stand and Shopping Complex, where the poramboke land is the only land in the locality for utilisation of public purpose viz. , for providing taxi stand, car-park, parking facility to autorikshaws, two wheelers etc. In Perumbavoor Town several offices are functioning in buildings belonging to private individuals taken on rent by the Government. There are so many important offices and hospitals situated near this property. So, it is necessary to provide permanent buildings for Government. If the Government land in the town is assigned to private individuals, the government have to acquire land for construction of buildings, paying at least Rs. 1,00,000/- per cent. Respondents 5 to 7 are not landless persons. They were not in occupation of the said lands. They are actually residing elsewhere. The 6th respondent is a resident of Vazhakulam Panchayat while the 7th respondent is a resident of Vengola Panchayat. The 5th respondent is the owner of 19. 49 cents of land in Sy. No. 357/5/1, which was purchased under sale deed dated 18. 4. 1985. The 7th respondent is the owner of 15 cents of land purchased under document dated 20. 9. 1984. The 5th respondent owns 58 cents of land. The 5th respondent's husband owns more than 2 acres of land. He is conducting a wholesale business in fish and his sons and sons of the 7th respondent are in affluent circumstances. Therefore, the petitioner prays for the above reliefs.

(3.) PETITIONER challenges the assignment of land in favour of respondents 5 to 7, on the ground that this land is required by the Municipality for providing parking facility to the motor vehicles and to put up a bus stand. This statement is not correct, since the Municipality itself has reported that they do not require this land. It is relevant to note that the Municipality has not filed any counter in this case. Another argument advanced by the petitioner is that respondents 5 to 7 are persons possessed of lands and are in affluent circumstances, and as such they are not eligible to get assignment of the land. According to the petitioner, the 6th respondent owns 4 cents of land and a building and is doing flourishing business. To prove that he is a big businessman there is no evidence. The other respondents, according to the petitioner, are also possessed of properties. Possession of another piece of land is no ground to refuse grant of patta. R. 7 (1) of the Kerala Land Assignment Rules, 1964 provides for assignment of land under lease whether time expired or by way of encroachment not objectionable. There are two types of lands, which are included in the list of assignable lands. They are occupied and unoccupied lands. For assignment of unoccupied lands the order of preference has to be looked into. The first preference is to persons who do not own lands. Here in this case, the land being occupied by the respondents, whether they are in enjoyment of other lands or in affluent circumstances need not be done into. After complying with all the formalities prescribed by the rules, the Government assigned the lands in favour of respondents 5 to 7. When once registry is granted, the same can be cancelled only under R. 8 (3) of the rules, which provides as follows: " The registry shall be liable to be cancelled for contravention of the provisions in sub-r. 1a or sub-r. (2 ). The Registry may be cancelled also, if it is found that it was grossly inequitable or was made under a mistake of facts or owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure. In the event of cancellation of the registry the assignee shall not be entitled to compensation for any improvements lie may have made on the land. The authority competent to order such cancellation shall he the authority which granted the registry, or one superior to it : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provided further that no assignment of land shall be cancelled if the annual family income of the transferee occupant does not exceed Rs. 10,000/- (Rupees ten thousand only) and who does not own or possess any landed property, anywhere in the State. " R. 8 (1a) provides, that unoccupied land assigned On registry shall not be alienated for three years. R. 8 (2) provides that the assignee or a member of the family shall reside in the land if it is granted as house site and shall personally cultivate the land if it is granted for cultivation. If the above conditions are contravened registry can be cancelled. Moreover, none of the grounds mentioned in R. 8 (3) is established in this case. So the Patta granted cannot be cancelled. The second proviso to this rule is to the effect that no assignment of land shall be cancelled if the annual family income of the transferee occupant does not exceed Rs. 10,000/- and who does not own or possess any landed property anywhere in the State. The files relating to the registry has been perused by me, which go to show that the annual income of respondents 5 to 6 does not exceed Rs. 10,000/- and the annual income of the 7th respondent is Rs. 10,000/ -. Government being the proprietor of the lands it can assign the lands in favour of any person if the conditions in the rules are satisfied. According to the petitioner, the assignment of land was granted at the instance of the 8th respondent, who wants to make use of this land for his own personal purpose. To prove this, he relies on Ext. P3 sale deed. Ext. P3 was executed by the 6th respondent in favour of the 9th respondent. According to the petitioner, the 9th respondent is the brother in law of the 8th respondent. Relying on this, it is submitted that the sale deed was executed in favour of the 9th respondent for the benefit of the 8th respondent. It is seen to be not correct as the, 9th respondent has filed a counter denying the said allegation. There is absolutely nothing on record to show that the 9th respondent has purchased this property for and on behalf of the 8th respondent. Hence that contention has no merit at all. On going through the files, I find that, as per the direction in O. P. No. 7451 of 1986, the Government have conducted an enquiry and passed final orders assigning the land in favour of respondents 5, 6 and 7, who are the occupants of the land in question. I do not find anything wrong in the order passed by the Government. Therefore, this Original Petition is liable to be dismissed. In the result, this Original Petition is dismissed. There will be no order as to costs. .