Under challenge in this writ petition is Ext.P10 order, by which a piece of land, which admittedly is a 'road puramboke', was assigned by the Government in favour of the 5th respondent, a registered organization.
2. Property having an extent of 4.41 ares in Sy.No.1573 of Ernakulam Village is a narrow strip of land bounded on the east by a hotel building and the Government Post-metric Women's hostel. The property is bounded on the south by the Government Press Road. The petitioners allege that they are occupying certain rooms on the side of the hotel building; and certain advocates are using an old building on the northern end. The 1st petitioner is conducting a Milma Booth on the south western corner of the property. The petitioners allege that the only access for all these persons to their workplace is the aforesaid property, which is being used for parking their vehicles and by other customers. The property is very close to Siva Temple Complex, the Court Complex, Ernakulam and Kanayannur Taluk Office. The 5th respondent submitted a petition before the District Collector for giving the property on lease to have their office there. The grievance of the petitioners is that respondents 1 to 4, without giving any notice to the petitioners and overlooking the mandatory provisions of the Land Assignment Act and Rules made thereunder, passed Ext.P10 order to give the property by way of lease to the 5th respondent for a period of 30 years on a notional rent of ₹100/- per year. It is with this background, the petitioners have come up before this Court.
3. In the report filed by the Tahsildar, Kanayannur Taluk as directed by this Court, it was submitted that only an extent of 2.57 ares is available for assignment and it is marked as “A” in the sketch prepared by the Village Officer, Ernakulam, which is produced as Annexure (A).
4. The 5th respondent filed a detailed counter affidavit, wherein it is stated that they did not want any land causing hardship to any person, who is otherwise entitled to use the said land in accordance with law, and did not want to restrict ingress and egress to any person to enter their property. According to them, they have been granted the property after leaving 4 meters for keeping the present road, which is more than required for enjoyment of other persons including the petitioners. They also contended that the property in question is not a 'road puramboke'. According to them, they are ready to execute the lease deed. However, the property has not been given possession due to the interim order of this Court.
5. Additional respondents 6 and 7 were impleaded subsequently. These respondents are advocates, who are having their office in an old building abutting the aforesaid land in question. They also maintain the stand that the impugned order is in violation of the provisions of the Kerala Land Assignment Act and Rules. According to them, the purpose of the 5th respondent is to construct a building. They would contend that no building can be constructed on a 'road puramboke'. According to them, no public interest is involved in the assignment of the property.
6. I have heard the learned counsel for the petitioners, the learned Special Government Pleader (Revenue), the learned counsel for the 5th respondent and the learned counsel for additional respondents 6 and 7.
7. By Ext.P10, the 5th respondent has been given permission to construct a building in the property in question. The learned Special Government Pleader would submit that it is not an assignment, but, it is only a lease arrangement for a particular period and sufficient safeguards are incorporated in Ext.P10 retaining the authority of the Government to reclaim the property in the event of violation of conditions made mention of therein.
8. The learned counsel for the 5th respondent would submit that the property is not a 'road puramboke' and the same is not being used as a road.
9. To ascertain the factual situation, an Advocate Commissioner has been deputed by this Court, who have filed a report, which would go to show that the property in question is being used as a road by the occupiers of the buildings on either side. The Tahsildar, Kanayannur Taluk, who has filed a report before this Court, has stated that as per the revenue records, it is a road.
10. According to the learned counsel for the petitioners, as the property in question is a 'road puramboke', the same is vested with the local authority; and therefore, the same cannot be assigned without consultation with the local authority. In answer to this argument, the learned Special Government Pleader would submit that the assignment was in exercise of powers conferred under Rule 24 of the Land Assignment Rules.
11. It is relevant to note that as per Ext.P9, the request of the 5th respondent has been rejected. There, it was correctly found that the proposed lease is violative of several guidelines and rules governing the matter and also in conflict with a number of decisions of the Supreme Court. However, the Government has not shown any justifiable reason to change the correct view in Ext.P9 while issuing Ext.P10 order. Ext.P2 would go to show that all assignments of 'government puramboke lands' to Organizations and Institutions in all districts would be kept in abeyance. Though it was argued by the learned Special Government Pleader that Ext.P10 was not an assignment, Explanation 2 of Section 2 of the Land Assignment Act would show that a transfer of property by way of lease is also an assignment. It can be seen from the matters now placed on board that the 3rd respondent, Tahsildar, has brought the fact to the notice of the District Collector. But, ignoring the correct view of the 3rd respondent, the District Collector proceeded with the matter. In view of Ext.P2, the lease proposed to be given under Ext.P10 to the 5th respondent is unsustainable; it was argued by the learned counsel for the petitioners.
12. As per Rule 6A(2) of the Assignment of the Land Municipal Rules, 1995, any land in a Municipal or Corporation area shall be assigned only on the recommendation of the Corporation Land Assignment Committee. As rightly pointed out by the learned counsel for the petitioner, the Cochin Corporation was kept in dark with regard to the proposed lease to the 5th respondent. It is also relevant to note that the land in question comes under Rule 11(2). Such a land cannot be assigned without consulting the local authority. The Division Bench of this Court in Varkey Abraham v. Secretary to Government [2007 (3) KLT 702] has observed that Rule 24 does not empower Government to completely do away with Act and Rules and their purpose and intent. Rule 24 could be exercised in a limited sphere only and that too, adhering to the paramount consideration of public interest. The respondents have failed to establish the overriding public interest in this matter.
13. It was further pointed out by the learned counsel for the petitioners that Rule 12(e) of the Assignment of Land Municipal Rules, 1965, states that no lease of any land situate in any Corporation area shall be given for a period exceeding three years. Under Ext.P10 order, the property is proposed to be given on lease for a period of 30 years. On that count also, Ext.P10 calls for an interference.
14. Under Rule 5 of the Land Assignment Rules, 1965, the annual lease rent shall be at a fixed percentage of the market value of the property. Evidently, the property made mention of in Ext.P10 is located at an important area of Kochi City, which would fetch lakhs of rupees per cent. However, Ext.P10 order would show that the rent fixed is only notional. Moreover, the aforesaid rules stipulate that the Tahsildar, on receipt of the application, should issue a notice under his signature inviting objections to the proposed lease and the notice shall be affixed in a conspicuous part of the property. Here, this was not done. The petitioners and the additional respondents got information about the proposed lease through other sources; and they submitted objections to the proposed lease before respondents 1 to 4. But, the revenue authorities did not care to give any consideration to the representation, a copy of which is marked as Ext.P11.
15. It appears from the record that a tailor-made report was obtained from the 4th respondent, who is a Village Officer, suppressing several material facts. There, it was not reported that a number of advocates are having their offices in front of this property and they are using the property in question for ingress and egress and several commercial institutions are also functioning on either side of this property.
16. The Advocate Commissioner, who has submitted report, has produced photographs showing the location. It is also reported that two age old trees are standing in the property proposed to be allotted; and the so called four meter way set apart, cannot be used without cutting down and removing those trees.
17. Though the learned counsel for the 5th respondent has argued that larger public interest is protected in the conditions made mention of in Ext.P10, this Court is not impressed by the way in which the matter has been handled by the authorities concerned. Undue haste was seen at every stage and the impugned order was passed violating the statutory requirements.
18. Though it was much argued by the learned counsel for the 5th respondent challenging the right of the 1st petitioner, who is conducting a Milma Booth in a portion of the property, it is quite unnecessary to go into those questions in this writ petition as this Court is only concerned with the legality and regularity of Ext.P10 order.
On a consideration of the entire materials now placed on board, this Court is of the definite view that Ext.P10 was issued in violation of mandatory requirements envisaged under the Kerala Land Assignment Act and Rules; and therefore, the same shall not be allowed to stand.
In the result, the writ petition is allowed and Ext.P10 is quashed.
Sd/-
A.V. RAMAKRISHNA PILLAI, JUDGE bka/-