1. The challenge is against Ext. P4 order passed by the 1st respondent-Government rejecting the revision petition filed by the petitioner aggrieved
by the Assignment on registry of 75 cents of government land in survey No. 319 and 320 of Aranattukara village in Thrissur District, in favour of
the 4th respondent.
2. Petitioner says that Exts. P2 and P4 have passed malafide and flouting the mandatory provisions in the Kerala Government Land Assignment
Act, 1960 (Act 30 of 1960) and the Kerala Land Assignment Rules, 1964.
3. ''Government lands'' for the purpose of the Kerala Land Assignment Rules (For short ''the Rules'') shall consist of lands belonging to
Government and available for assignment as per lists prepared by the Revenue Department and approved by the competent authority under the
Rules and such other lands as may be set apart for the purpose of the Rules. ''Assignment'' is defined in Rule 2(c) of the Rules as transfer of land
by way of registry and includes a lease and a grant of licence for the use of the land. Rule 11 says that before granting registry, Government shall
cause to be prepared lists of the lands which would be reserved for Government or public purposes in each village and lists of the lands which may
be made available for assignment in each village. This rule classifies lands to be reserved for Government or public purposes as including certain
categories as per Rule 11(2) to (6). Thus the rule contemplates two lists prepared on the basis of the above classification; the lists of lands to be
reserved for Government or public purposes and the lists of lands which may be made available for assignment. These lists shall be submitted to
the Government for approval. The Rules say that action to assign such lands on registry shall be taken only after the Government or any authority
authorised in that behalf approves those lists. Therefore, preparation of the lists and the approval of those lists under Rule 11 of the Rules are
conditions precedent for initiating steps for assigning the land. Rule 12 says that before considering an application for assigning the land, the
Tahsildar shall publish a notice inviting objections from interested persons to the registry of lands. The manner of publication of the notice is also
specifically mentioned in the rule.
4. Respondent No. 4 submitted Ext. P1 application before the 2nd respondent-District Collector to assign land extending one acre comprised in
survey Nos. 319 and 320 of Aranattukara village in Thrissur District. In that application he stated that he was in possession of the property and
that he required the same for personal cultivation. The District Collector did not feel it necessary to allow the request of the 4th respondent and he
passed order dated 13.2.1982 stating that the land in question was not feasible for cultivation.
5. Against this order of the District Collector, the 4th respondent approached the Board of Revenue (L.R.), Trivandrum. By Ext. P2 order dated
15.3.1993, the Board of Revenue allowed the appeal. The operative part of the order reads as follows:
From the records it is seen that the person is entitled to win this appeal. However, I find that there is a proposal to assign 25 cents from this for a
public purpose. It is not clear from the file the stage at which the matter stands. However, the learned advocate for the appellant concedes that it
would be enough if appeal is allowed restricting its scope and the rest of the area actually available. In view of this submission there is no need to
remand the case and so the appeal is allowed subject to the above submission of the appellant"".
6. Challenging Ext. P2 the petitioner along with another filed O.P. No. 11670 of 1993 before this Court. This Original Petition was disposed of By
Ext. P3 judgment directing he petitioners therein to avail the opportunity to file a revision against Ext. P2 before the Government. Accordingly, the
petitioner preferred a revision petition. The Government by Ext. P4 order dated 20.4.1995 dismissed that revision petition.
7. Petitioner is a society registered under the Travancore-Cochin Literary Scientific and Charitable Societies Registration Act, 1955 (Reg. No.
756/89). It is averred that the land in question was used by its members as a play ground. According to the petitioner, Exts. P2 and P4 were
passed yielding to illegitimate political pressure exerted on the authorities and that the said orders a are absolutely against public interest. The
decision taken to assign the land to the 4th respondent is in violation of the mandatory provisions contained in the Kerala Land Assignment Act and
the Rules, since the procedure prescribed under Rules 11 and 12 of the Rules was not observed.
8. In the counter affidavit filed on behalf of the 1st respondent and the counter filed by the 4th respondent no useful information regarding the
observance of the mandatory provisions in Rule 11 and 12 of the Rules is available. As against the specific grounds urged in the Original Petition
regarding the violation of Section 4 of the Act and Rules 7, 11 and 12 of the Rules, the counter affidavit of the 1st respondent contains only a
vague and general statement which reads:
9. The orders passed by the Government in this case is after observing the provisions laid down in KLA Rules, 1964. Hence there is no violation
of Constitution as alleged.
10. Government have ordered to assign the land in this case only after observing the rules laid down in KLA Rules which is authorised and legal.
9. There cannot be any doubt that the above statements do not afford a satisfactory answer to the specific allegation in the Original Petition that the
mandatory rules were not followed. The 1st respondent-Government which says in the counter affidavit that all the rules laid down in KLA Rules
have been observed, in the same breath adds as follows :
The lands has not been assigned to the 4th respondent so far. Only preliminary steps have been taken int his case to assign the land by the
respondents. Necessary notices as contemplated in the Rules will be published at the appropriate time before assigning the land.
It is difficult to comprehend the contradictory statements made in paragraphs 9 and 10 of the counter affidavit of the 1st respondent. The only
inference possible is that answer to the crucial question is cleverly evaded and the deponent of the counter affidavit does not want to admit or deny
as to whether the procedure prescribed in Rules 11 and 12 have been followed. A perusal of Exts. P2 and P4 would make it clear that a decision
has in fact been taken by the Board of Revenue to assign 75 cents of land in favour of the petitioner and that decision of the Board of Revenue has
been affirmed with added force in Ext. P4 order of the Government. Hence the averments in the counter affidavit of the 1st respondent are devoid
of any merit or substance. As rightly pointed out by the learned counsel for the petitioner a decision to assign the land cannot precede the
preparation of the list contemplated by Rule 11. The publication of the notice also should be a condition precedent before taking the decision to
assign government land to a private person.
10. Government and other authorities empowered by the statue to assign government land to private persons are not vested with absolute or
arbitrary powers. The power of eminent domain is tailored by the constitutional provisions. Government which is the custodian of public property
cannot act against public interest or in a manner offending Article 14 of the Constitution. Not only that such exercise of power must conform to the
procedure and other guidelines streamlined in the legislative enactment and the rules, if any, framed thereunder, but also should be informed by
reason and conform to the principles of fairness in action. Government have no power to transfer Government property to private hands according
to its whims and facies. Supreme Court in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, held that even in the
matter of distribution of largess the principles of equality enshrined in Article 14 of the Constitution should be observed. In Parameswaran Pillai and
Anr. v State of Kerala and Ors. reported in 1961 KLJ 1192 a Division Bench of this Court (Ansari (CJ) and Raghavan (J) held that ""any
assignment by the prescribed authority under the Kerala Land Assignment Act must be after the stages under Sections 4 and 5 been gone
through"". As far as assignment of Government land is concerned the first thing to be done is to identify the assignable land and then the prepare the
lists and approve the same. Without taking any effort to find out whether the land in question is included in the list of assignable lands, the Board of
Revenue and the Government have taken a decision in favour of the 4th respondent to assign land to him.
11. The averments in the counter affidavit of the 4th respondent are mainly intended to contend that the petitions have no locus standi to raise
objections against the orders passed in favour of the 4th respondent in the matter of assignment of the land and further that the 4th respondent has
been in physical possession of the property for personal cultivation for a long period of time. But the enquiry into facts as to whether the 4th
respondent has got possession over the property nor not becomes relevant only after it is seen that the said land is included in the list of assignable
lands as contemplated by the rules.
12. According to the 4th respondent, the petitioner which is a youth club registered under the Travancore Cochin Literary Scientific and Charitable
Societies Registration Act, 1955 ceased to be functional and this Original Petition at the instance of such a non-existing body of persons is not
maintainable. I do not think that the above contention of the 4th respondent requires any serious consideration, in the light of the fact that the effect
of the impugned order is one directly affect in the public at large. In a case where the authorities are taking steps to assign government property to
a private person discarding and by-passing statutory inhibitions and mandatory provisions a petition brought under Article 226 of the Constitution
to interdict the perpetuation of the illegality and resultant injury to public cannot be thrown overboard by conducting an investigation into the juristic
existence of the petitioner. In a case of this nature, the petitioner''s role get transformed into that of a mere informant enabling this Court to take
cognizance of the issue. It is an indisputable fact that the petitioner has been resisting the assignment and prosecuting the issue during the past more
than 10 years. Ext. Rule 4(i) shows that the 4th respondent had instituted a suit in the Munsiff''s Court, Thrissur and that the petitioner herein was
impleaded as the 1st defendant in that suit. When the suit was decreed, the petitioner filed A.S. No. 117 of 2000 and in that appeal the 4th
respondent was respondent No. 1. There was an earlier O.P. filed by the petitioner in 1993 on the same subject matter and this Court disposed of
that Original Petition permitting it to file a revision before the Government. The present Original Petition has been filed challenging the correctness
of the decision taken by the Government in the revision thus filed before it. I have no hesitation to reject the contention of the 4th respondent on the
question of locus standi. Even assuming that the petitioner is adjudged as one not personally aggrieved by Ext. P4 order, in the sense that the
petitioner has no legal right to claim assignment of the government land in its favour, this Original Petition cannot be dismissed on that ground
because the issue in this case is not merely a dispute between the two private individuals or body of persons, but one of public interest as well. In
cases where this Court under Article 226 of the Constitution has taken cognizance of the issue and is satisfied that the complaint is genuine and that
refusal to grant the relief prayed for will result in serious injury to public interest including loss of public property, objections related to locus standi
of the petitioner who brings the issue to the notice of the court, deserves to be over-rules, to deal with the matter on merits.
13. I find force in the submission of the learned counsel for the petitioner that Ext. P4 was passed in flagrant violation of the statutory provisions.
Government went wrong in affirmating the decision taken by the Board of Revenue in Ext. P2. In this connection, it is pertinent to note that the 1st
respondent-Government which passed Ext. P4 affirming Ext. P2, has not come forward, while swearing to the affidavit, to say that the land in
question has in fact been ordered to be assigned in favour of the 4th respondent. That is claimed in para 10 of the counter affidavit is that, though
inconsistent with the averments made in the preceding sentences of the counter affidavit, only preliminary steps have been taken to assign the land.
That alone is sufficient to hold that neither Ext. P2 nor Ext. P4 is legally valid or sustainable in law.
14. In the result, I allow prayer (ii) in the Original Petition and quash the impugned order. I direct respondents 1 to 3 to see that the land ordered
to be assigned as per Ext. P4 will remain as Government land until a decision in accordance with the Act and the Rules is taken by the authorities
under the Act.
15. Original Petition is allowed to the above extent.