Rabiya P vs District Collector, Kasaragod And Ors

The petitioner, who is stated to be in possession of 9.5 cents of land in Survey No.137/1A2pt11 in Panayal Village of Hosdurg Taluk in Kasaragod

District, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2nd respondent to

consider Ext.P1 application for assignment of the said land having an extent of 9.5 cents in Panayal Village of Hosdurg Taluk in Kasaragod District,

within a time limit to be prescribed by this Court.

On 06.01.2021, when this writ petition came up for admission, the learned Government Pleader was directed to get instructions, as to the time limit

within which Ext.P1 application can be finally disposed of.

Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents.

The Kerala Land Assignment Act, 1960 is enacted to provide for the assignment of Government land. Section 3 of the Act deals with assignment

of Government land and Section 4 deals with the procedure to be followed before Government lands are assigned. Section 5 deals with order of

assignment.

In exercise of the powers under Section 7 of the Kerala Land Assignment Act and in supersession of Rules for assignment of Government lands,

issued under notifications I and II G.O(P).No.1029/Rev. dated 18.10.1958 published in the Kerala Gazette Extra Ordinary No.107, the Government of

Kerala made the Kerala Land Assignment Rules, 1964 for assignment of Government lands. As per Rule 4, which deals with purposes for which land

may be assigned, the Government lands may be assigned on registry for the purpose of personal cultivation, house sites and beneficial enjoyment of

adjourning registered holdings.

Rule 5 of the Rules deals with maximum limits to be assigned for cultivation; Rule 6 deals with assignment for house site and for beneficial

enjoyment; Rule 7 deals with priority to be observed in assignment; Rule 7A deals with preference to kumkidars. Rule 8 deals with conditions of

assignment on registry; and Rule 9 deals with collection of arrears of Government dues and issue of provisional patta.

In Varghese Abraham v. State of Kerala, Revenue Department and others [2007 (3) KHC 365], a Division Bench of this Court held that various

provisions in the Kerala Land Assignment Act and the Kerala Land Assignment Rules would unmistakably show that the Act and the Rules are made

to protect the landless people by assigning them Government lands for cultivation and other purposes. The provisions under the Act and the Rules are

not intended for enriching persons who hold extensive lands. Assignment on registry of Government lands to such persons would defeat the very

purpose of the Act and the Rules. The Division Bench held further that, there is no vested right in any person to claim assignment on registry of

Government land.

The learned Government Pleader would submit that Ext.P1 application made by the petitioner has already been numbered as L.A.No.51/2020 of

Panayal Village and the 2nd respondent has already called for a report from the Village Officer. After getting the report of the Village Officer, the 2nd

respondent shall take an appropriate decision on that application, within a time limit to be fixed by this Court.

The learned counsel for the petitioner would submit that consideration of Ext.P1 application may be with notice to the petitioner and after affording

her an opportunity of being heard.

Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the 2nd respondent

Tahsildar to consider and pass appropriate orders on Ext.P1 application made by the petitioner, strictly in accordance with law, after obtaining

necessary report from the 3rd respondent Village Officer, with notice to the petitioner and after affording her an opportunity of being heard, as

expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment.

In State of U.P. v. Harish Chandra [(1996) 9 SCC 309] the Apex Court held that no mandamus can be issued to direct the Government to refrain

from enforcing the provisions of law or to do something which is contrary to law. In Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259] the Apex Court

reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of

the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been

injected by law.

Therefore, the direction contained in this judgment to the 2nd respondent Tahsildar is for taking an appropriate decision in the matter, strictly in

accordance with law, taking note of the relevant statutory provisions and also the law on the point.

No order as to costs.