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2021 Supreme(Online)(KER) 28011
HIGH COURT OF KERALA
S.MANIKUMAR, CJ, SHAJI P.CHALY, J
PONNACHAN K.V – Appellant
Versus
THE STATE OF KERALA – Respondent
WA 1625 2021
SAJAN VARGHEESE, K.LIJU, V.TEK CHAND, M.P.JOSEPH TIJO, SURIN GEORGE IPE
Land assigned as poramboke cannot be granted, protecting public interests and adhering to statutory provisions outlined in the Kerala Land Assignment Act.
Headnote:
Encroachment - Appeal - Kerala Land Assignment Act, 1960 - Sections 2(1) and related Rules - The court upheld that assignment of poramboke land is constrained by statutory provisions and prior judicial directives, emphasizing public interest over individual claims.
Fact of the Case:
The appellant, a religious denomination's secretary, sought to quash a report regarding property encroachment and process an application for land assignment under a government order, claiming long-term presence on the land.
Finding of the Court:
The court found that the learned Single Judge properly interpreted land assignment laws, concluding that the property was classified as river poramboke, thus not assignable and subject to public rights.
Issues: Whether the learned Single Judge's dismissal of the application for land assignment was justified given the classification of the property as river poramboke and recent judicial directives on encroachments.
Ratio Decidendi: The main legal reasoning was based on the classification of the land as poramboke, which is not assignable under the Kerala Land Assignment Act, established to protect public interests.
Final Decision: The writ appeal was dismissed, with no justification found for judicial interference.
JUDGMENT
SHAJI P.CHALY,J.
This appeal is preferred by the petitioner in W.P.(C) No.9208/2021 dated
24.11.2021, whereby the reliefs sought for by the petitioner to quash Exhibit P5 report submitted by the Revenue Divisional Officer, Kottayam dated 2.2.2019 in regard to the encroachment of property and poramboke by the appellant was declined, apart from declining the relief sought for by the appellant to process Exhibit P1 application in the backdrop of Exhibit P4 order issued by the Revenue Department of the State Government dated 27.1.2020 bearing No.G.O.(Rt.) No.40/2020/Revenue in regard to the assignments of land possessed by religious places, cemeteries, cultural and arts organisations, libraries etc. Brief material facts for the disposal of the writ appeal are as follows;
2. Appellant is the Secretary of a branch of Kumarakom Sakha of Prathiya Raksha Daiva Sabha (PRDS), a religious denomination. The case of the appellant is that the 'Aradhana Mandiram' (prayer hall) may be situated in a Panchayat poramboke land but according to the appellant, the mandiram has been there for the last so many decades, as borne out from Exhibit P5 report submitted by the Revenue Divisional Officer dated 2.2.2019. Therefore, according to the appellant, the said religious denomination is entitled to have the benefit of Exhibit P4 Government Order dated 27.1.2020 and it is entitled to get the property where the Aradana Mandiram is situated, assigned in favour of the beneficiaries. In the above backdrop, Exhibit P1 application was submitted and the writ petition was filed seeking direction to dispose of the said application by the authorities. However, the learned Single Judge held that if Exhibit P4 Government Order is worked out and Exhibit P1 application is considered, it will adversely affect the larger interest of the public.
3. The paramount contention advanced by the appellant is that so far Exhibit P4 being the policy of the Government and it is not contrary to any statute, rules, Constitution of India and any other provisions of law, the stand taken by the learned Single Judge, cannot be sustained in law. The learned Single Judge, in fact, has dismissed the writ petition, basically holding that in the Basic Tax Register of the Village/Taluk, the tenure of the property in question is shown as “Kavanar Poramboke”. That apart, referring to Exhibits R5(b) and R5(c) report and sketch prepared by the Taluk Surveyor, it was found by the learned Single Judge that an extent of 0.033 hectares of land have been encroached by the religious denomination in question, which is not a legalistic approach made to the issue. The learned Single Judge has also taken into account the order of the Hon'ble Apex Court in SLP(C) No.8519 of 2006 and connected cases dated 31.1.2018, whereby directions were issued to remove all encroachments by the religious body on public land.
4. The Apex Court has further held that no unauthorised construction can be carried out or permitted by the temples, churches, mosques etc. in public places and it was further ordered that, if unauthorised construction has already taken place, the Government can on case to case basis review and take appropriate steps. It was further found by the learned Single Judge that the Government's power to assign poramboke or Government land is traceable to the Kerala Land Assignment Act , 1960 and the Rules made thereunder; that the land belonging to the State is held by the Government as a public trustee and the Government cannot assign or allow occupation of Government land except in accordance with the statutory provisions under the , 1960 and the Rules thereto. Learned Single Judge has also taken into account various provisions of the Land Assignment Act, 1960 and the Rules thereto and held that the Government would have to strictly follow the procedures prescribed for assignment of land under law. Learned Single Judge has also taken note of the fact that the organisation in question is admittedly an
