Back
2008 Supreme(Ker) 28
Judgename : K.M.JOSEPH
P.M.Sukumaran - Appellant
Versus
State Of Kerala Represented by Chief Secretary - Respondents
Case No : OP.No. 16927 of 1999(M)
Decided On : 01/16/2008
The main legal point established in the judgment is that specific and special provisions in a scheme or rules prevail over general provisions in other rules, and the cancellation of an assignment must be in accordance with the relevant rules under which the assignment was made.
Headnote:
Land Assignment - Wayanad Colonization Scheme - Kerala Land Assignment Act, Section 3, Rule 13(2), Rule 8(3), Rule 21(9) - The court discussed the Wayanad Colonization Scheme rules, 1969, and the Land Assignment rules, 1964, and their provisions regarding cancellation of assignments. The court highlighted the specific and special provisions in the Wayanad Colonization Scheme rules, 1969, and concluded that the cancellation of the assignment under the Land Assignment rules, 1964, was illegal and without authority.
Fact of the Case:
The petitioner was assigned 1.25 cents of land under the Wayanad Colonization Scheme rules, 1969, and received a notice for cancellation of the assignment due to failure to remit basic tax and lack of possession. The petitioner challenged the cancellation and sought a declaration that the assignment cannot be cancelled.
Finding of the Court:
The court found that the cancellation of the assignment under the Land Assignment rules, 1964, was without authority and illegal, as the assignment was made under the Wayanad Colonization Scheme rules, 1969.
Issues: The issues involved the authority for cancellation of the assignment, payment of basic tax, possession of the land, and the applicability of the Wayanad Colonization Scheme rules, 1969, versus the Land Assignment rules, 1964.
Ratio Decidendi: The court held that the specific and special provisions in the Wayanad Colonization Scheme rules, 1969, prevailed over the provisions in the Land Assignment rules, 1964, and therefore, the cancellation of the assignment was illegal and without authority.
Final Decision: The Writ Petition was allowed, and the orders for cancellation of the assignment were quashed.
Petitioner was assigned 1.25 cents of land vide Ext.P1 dated 28.2.1980 under the Wayanad Colonization Scheme rules, 1969. The said rules have been framed under Section 3 of the Kerala Land Assignment Act. Thereafter, the petition after 17 years, received Ext.P2 notice as to why the assignment should not be cancelled. He submitted his version. But, by Ext.P3, the District Collector cancelled the assignment on the ground that the petitioner failed in remitting the basic tax and it was remitted only on 20.1.1992 and that the petitioner is not in possession of the land from 28.2.1980 to 20.1.1992. Petitioner preferred Ext.P4 revision which came to be dismissed by Ext.P5. Ext.P6 review was also unsuccessful. Petitioner challenges Exts.P3, P5 and P7 and seeks a declaration that the assignment cannot be cancelled.
2. A Counter Affidavit has been filed, wherein, it is stated, inter alia, as follows:
“6. Many complaints were received by the Government against the assignment and the Government ordered the cancellation of assignment after obtaining a report from the District Collector. The District Collector issued the notice to the petitioner to show cause why the assignment should not be cancelled. But, the petitioner could not justify the assignment in his favour. Rule 13(2) of the Wayanad Colonization Scheme states on assignment on registry shall be liable to cancellation within a period of five years from the date of assignment if it is found that the assignment was inequitable or was made under mistake of fact in excess of the limit of powers delegated to the assigning authority or that there is any irregularity in procedure of such assignment. Rule (5) states that the authority competent to order the cancellation of an assignment or registry shall be the authority which made the assignment or one superior to it.
7. In this case, assignment was ordered on 28.2.80. The assignment was cancelled by the District Collector on 29.1997 as directed by the government on 6.1997 as per Rule 8(3) of the KLA Rules, 1984. The District collect had pointed out to Government that the assignment in this case comes under rule 7A of W.C. Rules 1969 which states that assignment is to be done following KLA rules, 1964 rather than WCS Rules, 1969. So provisions of K.L.A. Rules prevail in this case. As per Rules 8(3) and 21(9) of KLA Rules, Government can at any time revise, cancel or alter the assignment order after giving notice. The District Collector cancelled the assignment on Government directions after issuing notice and verifying the details. Hence the orders passed by the District Collector and Land revenue Commissioner are in order.”
3. Heard the learned counsel for the petitioner and the learned Government Pleader.
4. Learned counsel for petitioner would contend as follows:
Ext.P1 assignment was made under the Wayanad Colonization scheme rules. However, the impugned orders are in exercise of the powers under the Land Assignment rules. He would submit that in so far as the assignment was done under the Wayanad colonization Scheme Rules, 1969, there was no authority with the District collector. He would further submit that the land tax was paid on 28.2.1980 and he paid the arrears in 1992. He would point out that from Ext.P5 it is clear that the order has been passed on the basis of the decision taken by the Government as revealed by the communication which is referred to in Ext.P3. The said decision of the Government was taken without hearing the petitioner and it is on the said basis that the Authority has cancelled the assignment, he contends.
5. Learned Government Pleader would, however, submit that power is available under the Land Assignment Rules 1964. She fairly submits that the assignment was made under the Wayanad Colonization Scheme Rules. She would point out that the petitioner did not have possession.
6. As far as the first contention is concerned, I am of the firm view that the petitioner is justified in impugning the orde
