Important points
The equitable principles relating to estoppel and waiver cannot have a bearing when the Government is acting as a trustee- This action to protect the interest of the State. No wrong can give rise to a right- The and belongs to the State- If the Government had failed in its duty to check illegal use of land that will not give rise to an equitable right to a wrongdoer- The principles of estoppel cannot be advanced to promote one`s own wrong- This is not a case between the Government and the holder of the land. It is a matter between public interest and breach of trust by a person, who was in relation with the Government to promote the public interest.

1. This writ petition was filed challenging the cancellation of the registry of assigned land under the Kerala Land Assignment Rules, 1964 (the “Rules” for short).

2. The Sub Collector Devikulam by proceedings dated 3.7.2007 ordered cancellation of the registry and assignment on finding that the land assigned for cultivation is found used for commercial purposes for running a resort. This order was impugned in appeal before the Land Revenue Commissioner. The Land Revenue Commissioner also affirmed the order of the Sub Collector, cancelling the assignment. These orders are impugned in the writ petition.

3. Heard the learned Senior Counsel Shri Jayakumar and learned Counsel Shri Gilbert George Correya appearing for the petitioner, learned Additional Advocate General, Shri Ranjith Thamban, learned State Attorney Shri K.V.Sohan ably assisted by the learned Government Pleader Shri K.J.Mohd.Anzar.

4. The petitioner M/s.Mahindra Holidays India Resort Limited is running a resort in Chinnakkanal Village in Survey No.20/1 in land having an extent of 9.16 acres. The petitioner obtained this land from Shri J.Thavamani and Shri Varkey Antony. Thavamani obtained an assignment of 2.61 acres of land. Varkey Antony also obtained an assignment of 2.76 acres of land. Remaining extent of land alleged to be in occupation of the petitioner is by way of encroachment. It is alleged that 1.0563 hectares (3.7 acres) of Government land has been encroached by the petitioner. In the assignment, certain conditions were stipulated. These conditions would form part of the statutory form of patta as referable under Rule 9(2) of the Rules. It is specifically stipulated that alienation of land is strictly prohibited for a period of 10 years and in that event, the Government would resume the land without paying any compensation. The Kerala Land Assignment Rules came into force in the year 1964. The assignment in favour of the original patta holder Thavamani was on 15.9.1965 and in favour of Varkey Antony was in the year 1970. The petitioner purchased the land from Thavamani and Varkey Antony in the year 1984. They constructed a resort immediately thereafter. The constructed building was also assessed to Building Tax in accordance with the Kerala Building Tax Act, 1975. The Department Of Tourism, Kerala, also issued certificates for Tourism purposes. In terms of the Land Assignment Act and Rules, land can be assigned only for certain specified purposes. These purposes are specified in Rule 4 of the Rules. It specifically states that Government land may be assigned on registry for the purposes of personal cultivation, house sites and beneficial enjoyment of adjoining registered holdings. However, a residuary power is given to the Government under Rule 24 of the Rules to assign land for any other purposes on public interest. Sub Rule 2 to Rule 8 of the Rules stipulate a positive covenant obliging assignee to use the land for the purpose for which it was assigned. There was no condition in the form of patta issued that registry would be cancelled if there is any violation of Sub Rule 2, nor there was any statutory Rule at the relevant time for cancellation on violation of Sub Rule 2. However, the Rule was amended in the year 1971 by incorporating a provision for cancellation on contraventions of provisions of Sub Rule 2 as well. This was so incorporated in Sub Rule 3 to Rule 8. Admittedly, the patta was issued prior to incorporating the provisions in the year 1971 for cancellation of the patta for violation of Sub Rule 2. The crux of the legal issue in this matter revolves around the validity of the order of cancellation in the absence of any provisions in the patta or statutory rule at the time of issuance of patta.

5. The specific purpose for which land can be assigned is referred in Rule 4 of the Kerala Land Assignment Rules. It has two objectives. One of the objectives mentioned therein is to assign land on public interest; these assignments are for person