Circulars cannot override statutory provisions on land assignment.

JUDGMENT

The petitioner is stated to be the owner in enjoyment and possession of 2.2 Ares of property in re-Survey No.113/4-3 of Block No.6 of Kareepra Village, Kottarakkara Taluk. An extent of 6.07 Ares in re-Survey No.113/3 is lying adjacent to the property of the petitioner, referred to above. The petitioner’s house is admittedly situated in the property in re-survey No.113/3, referred to above. Since the residential building of the petitioner is, so situated in the afore property, which is recorded as ‘Revenue Tharisu’, he sought for assignment of the afore land under the provisions of the Kerala Government Land Assignment Act, 1960 (hereinafter referred to as the ‘Act’). However, by Ext.P5 dated 08.05.2019, the 4^th respondent sought to reject the request for assignment, essentially on account of the fact that the afore property is lying adjacent to the PWD Road. The subsequent attempt made by the petitioner for assignment through the Revenue Divisional Officer was also rejected pursuant to the proceedings at Ext.P6 dated 17.01.2020, mainly placing reliance on a circular dated 30.09.2009, issued by the Government. It is seeking to challenge Exts.P5 and P6 issued as above, that the petitioner is before this Court.

2. I have heard Sri.M.P.Liju, learned counsel for the petitioner, as well as Smt.S.L.Sylaja, learned Government Pleader.

3. The question as regards the assignment of a property under the Act requires to be considered with reference to the Statute, as well as the Rules made thereunder. As regards the provisions of Rule 11(2)(v) of the Kerala Land Assignment Rules, 1964 (hereinafter referred to as ‘the Rules), it has been provided that it is only those properties on the sides of roads “required for widening” which shall not be assigned. In the case at hand, the petitioner specifically relies on the reply obtained by him under the provisions of the Right to Information Act, 2005 , as per which there is no widening schemes at present.

4. Furthermore, the consideration made in Exts.P5 and P6 on the basis of a circular issued by the Government on 30.09.2009, does not appear to be correct since, as already noticed, the prayer for assignment requires to be considered with reference to the mandate under the Act and Rules and not with reference to the contents of a circular issued by the Government. A circular, so issued by the Government cannot override provisions of the Act and the Rules made thereunder. Therefore, I am of the opinion that the orders at Exts.P5 and 6 requires to be set aside.

In the result, this writ petition would stand allowed, setting aside Exts.P5 and P6. There will be a direction to the 4^th respondent herein to consider the request for land assignment made by the petitioner, with reference to the provisions of the Act and Rules, as well as the observations in this judgment, as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. Needless to say, the petitioner is also to be granted an opportunity of being heard. The 4^th respondent to take note of the decision already taken in Ext.P3, whereby, in principle, the entitlement of the petitioner for assignment is already found in his favour.

Sd/-