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IN THE HIGH COURT OF KERALA AT ERNAKULAM
S.MANIKUMAR, SHAJI P.CHALY, JJ.
Anwar Sadath V.M., S/o.Mohammed V.B. – Appellant
Versus
Justine Pallivathukkal, S/o.Joseph – Respondent
I.A. No.1 of 2021 in Unnumbered R.P. (F. No.20805 of 2021) & Unnumbered R.P.(F. No.20884 of 2021) in W.P. (C) No. 24355 of 2020
Decided on : 07-10-2021
Constitution of India, 1950- Article 226- Writ - Land Acquisition Act - clause (2) of Section 2 and 3-Kerala Panchayat Raj Act, 1994 - Kerala Municipality Act, 1994-Kerala Land Assignment Act, 1960 - Section 7- Permissive possession – Assignment of Land - Petitioner is one of the legal heirs of one Puthiyakath Kinattingal Sainaba, who was in possession of 2 Acres of Government Puramboke land inof Mangalam Village - Petitioner has filed this writ petition, under Article 226 of the Constitution of India, seeking a writ of certiorari to quash of the 2nd respondent District Collector, and a writ of mandamus commanding the respondents to take steps to assign 2 Acres of land comprised of Mangalam Village, is produced herewith. Moreover, a true copy of report regarding the nature of the land prepared by the Village Officer is produced.
Finding of the Court:
Land was leased, in condition of permissive possession - Deceased mother of the petitioner for agricultural purpose as per Rule 15(1) of Kerala Land Assignment Rules, 1964- legal heirs including the petitioner had renewed the lease up to 2013 - Thereafter, the same was not renewed. In 2014 the said land was proposed for a Government project named Zero Land Less Kerala' for the purpose of distributing land to landless people - Possession the Village Officer, Mangalam on the basis of the direction of the Tahsildar after terminating the permissive possession of the lease holder - Court seeking a direction to take steps to assign the land in favour of the legal heirs of the deceased mother – counter affidavit filed by the 3rd respondent, 2 Acres of Government Puramboke land in Sy.No.59/14 of Mangalam Village was originally leased out to late Sainaba - granting lease or licence for agricultural purposes shall be issued in the form in Appendix VI to the Rules- Lease or licence shall also be subject to the terms and conditions specified in the order of grant. As per sub-rule (2) of Rule 15, lease or licence granted under these Rules shall be heritable, but not alienable. As per sub-rule (4) of Rule 15-terminate the same, after giving 60 days notice, in writing, to the assignee, if the land or portion thereof is required for Government or public purposes- Grant shall also be liable to termination, after giving reasonable notice, not exceeding 15 days, if the assignee violates any of the conditions of the grant - death of Sainaba, her legal heirs including the petitioner had renewed the lease upto 2013. Thereafter, the lease was not renewed. In the year 2014, the said land was proposed for a Government project, namely, Zero Landless Kerala', for purpose of distributing land to landless persons - Land was taken into possession by 4th respondent Village Officer - Document marked as Ext.R3(a) along with counter affidavit filed by 3rd respondent is a copy of the settlement register pertaining to the property in question - Document prepared by the 4th respondent Village Officer, as per which the property in question is on banks of Tirur-Ponnani Puzha and lying as marshy land, without any improvements Apex Court has time and again emphasised the need to retain and restore water bodies and held that water bodies are inalienable - Land comprised in water bodies cannot be alienated to any person even if it is dry.
Result: Writ petition is dismissed
ORDER :
S.Manikumar, J.
On 15.09.2021, we passed the following order:-
“Being aggrieved by the judgment in W.P.(C) No.24355 of 2020 dated 28.05.2021, Mr. Anwar Sadath V.M., a third party, has filed I.A. No.1 of 2021 seeking leave of this court to review the abovesaid judgment. So also, one Mr. Muhammed Ashraf K.K., a third party, has filed I.A. No.1 of 2021 for the very same purpose.
2. On this day, when the leave applications came up for hearing, Mr. Raju Joseph, learned Senior Advocate appearing for the writ petitioner/1st respondent herein, submitted that acting on the judgment in W.P.(C) No.24355 of 2020 dated 28.05.2021, State of Kerala has already issued orders implementing the decision of this court.
3. Ms. O.A. Nuriya, learned counsel appearing for Minority Indians Planning and Vigilance Committee Trust respondent No.5, submitted that being aggrieved by the judgment in W.P.(C) No.24355 of 2020 dated 28.05.2021, a Special Leave Petition has been preferred by the abovesaid respondent and that the same is pending.
4. Though Mr. Sanjay Parikh, learned Senior Advocate appearing for Mr. Anwar Sadath V.M., one of the review petitioners, submitted that even though the Government have acted upon the decision in issuing appropriate orders, still, as on date, the right to seek for review is available to a third party and thus leave applications can be taken up for hearing, we are of the view that appropriate decision would be taken after considering the orders of the Government and the details of the Special Leave Petition filed by respondent No.5/additional respondent No.4 in the writ petition.
5. Statements to the above effect be filed by learned counsel for respondents 1 and 5 (writ petitioner and additional respondent No.4 therein).”
2. 1st respondent/writ petitioner has filed affidavits in the review petitions, stating that, implementing the judgment in W.P.(C) No. 24355 of 2020 dated 28.05.2021, sought to be reviewed, Government have issued Ext. R1(a) G.O. (MS) No.135/2021/GAD dated 16.07.2021, deciding to disburse scholarship on the basis of 2011 census, to all the eligible minority communities, including Parsis (Muslim 26.56%, Christian 18.36%, Buddhists 0.01%, Jains 0.01%, I.A.1/21 in Unnumbered R.P. (F.No.20805/21) & Sikhs 0.01% etc.), and recommended to disburse the benefits, on the basis of the population percentage, and without causing any loss to any minority community.
3. For brevity, G.O. (MS) No.135/2021/GAD dated 16.07.2021 is reproduced:-
“Government of Kerala
Abstract
Minorities Welfare Department - Ratio of Minority Students Scholarship Restructured - In compliance with the Directions issued by the Hon'ble Kerala High Court as per Judgment dated 28.05.2021 in WP.(C) No. 24355/2020.- Implementing orders issued.
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General Administration (Minority Welfare) Department
G.O (MS) No.135/2021/GAD Dated Thiruvananthapuram, 16/07/2021
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Reference: 1. G.O (MS) No. 278/2008/GAD dated 16/08/2008
2. G.O (MS) No. 57/2011 GAD dated 22/02/2011
3. G.O (RT) No. 3427/2015 GAD dated 08/05/2015
4. Judgment dated 28/05/2021 in W.P (C) 24355/2020 of the Hon'ble High Court of Kerala.
5. Minutes of the All Party Meeting presided by the Hon'ble Chief Minister on 04/06/2021.
6. G.O (RT) No.2194/2021 GAD dated 14/06/2021
7. Procedure Notes of the Expert Committee Meeting held on 15/06/2021 and 29/06/2021.
ORDER
The Hon'ble High Court of Kerala as per Ref No(4) have held that the action of the State Government in Sub classifying the minorities by providing merit-cum-means scholarship at 80% to Muslim community and 20% to Latin Catholic Christians and converted Christians cannot be legally sustainable and directed the Government to pass requisite and appropriate Orders providing merit-cum-means scholarship to the members of the notified minority communities within the State equally and in accordance wi
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