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2008 Supreme(Online)(KER) 49541
HIGH COURT OF KERALA
K.M.JOSEPH, J
P.K.SUKUMARAN – Appellant
Versus
STATE OF KERALA – Respondent
OP/16927/1999
SRI.SUBHASH CYRIAC
Cancellation of land assignment must adhere to prescribed rules and time limits; failure to do so renders the cancellation void.
Headnote:
Cancellation - Assignment - Kerala Land Assignment Act - Section 3; Wayanad Colonization Scheme Rules; KLA Rules, 1984 - The court held that the cancellation of land assignment was unauthorized as it exceeded the permissible period and did not comply with the specific provisions of the applicable rules.
Fact of the Case:
The petitioner was assigned land under the Wayanad Colonization Scheme Rules, 1969. After 17 years, a notice for cancellation was received due to unpaid tax, leading to the cancellation by the District Collector. The petitioner challenged this cancellation.
Finding of the Court:
The court found the cancellation of the assignment unlawful as it relied on the wrong set of rules and exceeded the cancellation time limit of five years as stipulated in the assigned rules.
Issues: Whether the cancellation of the land assignment was justified under the applicable rules, given the procedural irregularities and the time limitations in place.
Ratio Decidendi: The assignment could not be cancelled after five years without adherence to specific procedures mandated by the rules, and the cancellation was beyond the jurisdiction of the authority.
Final Decision: The writ petition was allowed, and the cancellation orders were quashed.
JUDGMENT
Petitioner was assigned 1.25 cents of land vide Ext.P1 dated 28.2.1980 under the Wayanad Colonization Scheme Rules, 1969. The said Rules have been framed under Section 3 of the Kerala Land Assignment Act . Thereafter, the petitioner after 17 years, received Ext.P2 notice as to why the assignment should not be cancelled. He submitted his version. But, by Ext.P3, the District Collector cancelled the assignment on the ground that the petitioner failed in remitting the basic tax and it was remitted only on 20.1.1992 and that the petitioner is not in possession of the land from 28.2.1980 to 20.1.1992. Petitioner preferred Ext.P4 revision which came to be dismissed by Ext.P5. Ext.P6 review was also unsuccessful. Petitioner challenges Exts.P3, P5 and P7 and seeks a declaration that the assignment cannot be cancelled.
OP NO.16927/99 M 2
2. A Counter Affidavit has been filed, wherein, it is stated, inter alia, as follows:
"6. Many complaints were received by the Government against the assignment and the Government ordered the cancellation of assignment after obtaining a report from the District Collector. The District Collector issued the notice to the petitioner to show cause why the assignment should not be cancelled. But, the petitioner could not justify the assignment in his favour. Rule 13(2) of the Wayanad Colonization Scheme states on assignment on registry shall be liable to cancellation within a period of five years from the date of assignment if it is found that the assignment was inequitable or was made under mistake of fact in excess of the limit of powers delegated to the assigning authority or that there is any irregularity in procedure of such assignment. Rule (5) states that the authority competent to order the cancellation of an assignment on registry shall be the authority which made the assignment or one superior to it.
7. In this case, assignment was ordered on OP NO.16927/99 M 3
28.2.80. The assignment was cancelled by the District Collector on 24.9.1997 as directed by the Government on 5.6.1997 as per Rule 8(3) of the KLA Rules, 1984. The District Collector had pointed out to Government that the assignment in this case comes under Rule 7A of W.C. Rules 1969 which states that assignment is to be done following KLA Rules, 1964 rather than WCS Rules, 1969. So provision of K.L.A. Rules prevail in this case. As per Rules 8(3) and 21(9) of KLA Rules, Government can at any time revise, cancel or alter the assignment order after giving notice. The District Collector cancelled the assignment on Government directions after issuing notice and verifying the details. Hence the orders passed by the District Collector and Land Revenue Commissioner are in order."
3. Heard the learned counsel for the petitioner and the learned Government Pleader.
4. Learned counsel for petitioner would contend as follows:
Ext.P1 assignment was made under the Wayanad OP NO.16927/99 M 4 Colonization Scheme Rules. However, the impugned orders are in exercise of the powers under the Land Assignment Rules. He would submit that in so far as the assignment was done under the Wayanad Colonization Scheme Rules, 1969, there was no authority with the District Collector. He would further submit that the land tax was paid on 28.2.1980 and he paid the arrears in 1992. He would point out that from Ext.P5 it is clear that the order has been passed on the basis of the decision taken by the Government as revealed by the communication which is referred to in Ext.P3. The said decision of the Government was taken without hearing the petitioner and it is on the said basis that the Authority has cancelled the assignment, he contends.
5. Learned Government Pleader would, however, submit that power is available under the Land Assignment Rules 1964. She fairly submits that the assignment was made under the Wayanad Colonization Scheme Rules. She would point out that the petitioner did not have possession.
6. As far as the first contention is concerned, I am of the OP NO.169
