Absence of government notification under Section 4(1) of the Kerala Government Land Assignment Act, 1960 undermines claims for land assignment.

J U D G M E N T

[WP(C) Nos.23053/2023, 23802/2023]

These writ petitions raise a common issue regarding the sustainability or otherwise of Land Conservancy proceedings against the petitioners during the pendency of separate applications filed by them for assignment of Government land under the provisions of the Kerala Government Land Assignment Act , 1960.

2. I have heard Sri. Asok Kumar P. Kodath, the learned Counsel for the petitioners, as well as Sri. Jafar Khan, the learned Senior Government Pleader for the respondents herein.

3. For ease of reference, the facts and circumstances arising from W.P.(C) No. 23053 of 2023 are referred to. The petitioner contends that he had filed Ext. P1 application dated 27.09.2005 under the provisions of the Kerala Government Land Assignment Act , 1960, in respect of an extent of approximately one Acre of property. During the pendency of the said application, the Tahsildar initiated proceedings under the Kerala Land Conservancy Act , 1957, by issuing a Form C notice directing the petitioner to vacate the property in question.

4. Though an appeal was preferred against the aforesaid order, it was unsuccessful, as the Appellate Authority held that the petitioner failed to establish ownership of the land in question. A further revision was filed before the District Collector, which was also dismissed on the ground that it was presented beyond the prescribed period of limitation. Aggrieved thereby, the petitioner preferred a revision before the Government, which too was unsuccessful, on account of which the petitioner has approached this Court through the captioned writ petition.

5. According to the learned counsel for the petitioners, when an application in the nature of the one at Ext.P1 is admittedly filed and pending, the procedure prescribed under Section 4 of the Kerala Government Land Assignment Act , 1960 (for short “ Act, 1960”) read with Rule 12 of the Kerala Land Assignment Rules, 1964 ought to be followed. In the case at hand, however, action was taken under the provisions of the Kerala Land Conservancy Rules, which is contended to be incorrect and arbitrary.

6. Per contra, the learned Senior Government Pleader submits that the petitioners in these writ petitions are essentially encroachers and, therefore, have no legal right to seek assignment under the provisions of the Act, 1960.

7. I have considered the rival contentions as well as the connected records.

8. True, the learned counsel for the petitioners is justified in contending that, under the provisions of the Act, 1960, when an application in the nature of the one at Ext.P1 is filed, the same is required to be disposed of in terms of Rule 12 of the Kerala Land Assignment Rules. However, the larger question that arises for consideration is whether such an application can be entertained in the absence of a notification issued by the Government under Section 4 (1) of the Act, 1960.

9. In my opinion, it is only when the Government has taken a decision to assign Government land and has notified such intention that an application for assignment can be validly filed and entertained. In the case at hand, it is not in dispute that the petitioners are in possession of the properties. However, they have no case that the Government had taken a decision to assign any portion of the land or that any notification to that effect has been issued. In other words, in the absence of an appropriate notification issued by the Government, the respective petitioners have sought to submit applications for assignment of Government land.

10. This Court also notices that, with regard to the petitioner in W.P.(C) No. 23053 of 2023, the 5^th respondent has categorically filed a counter affidavit, stating that out of the total extent of 0.1943 hectare