Aleyamma Chacko & Ors. vs State Of Kerala & Ors.

Petitioners are mother and two sons. They are challenging Ext.P7 Order dated 11.04.2019 passed by the Respondent No.3 under Rule 8(3) of the Kerala Land Assignment Rules, 1964, cancelling Ext.P3 Patta dated 31.01.1970 and Ext.P11 Order dated 04.10.2019 passed by the Respondent No.2 confirming Ext.P7 Order rejecting the Appeal filed by the Petitioners against Ext.P7 Order.

The case of the Petitioners is that the Petitioner No.1 and her father purchased 6.53 Acres of land in old Sy. Nos.159/1B and 170/1/1/511 & 513 of Pazhavangadikkara Village in Pathanamthitta Taluk, which is recorded as 5.83 Acres in the Basic Tax Register, as per Ext.P1 Sale Deed dated 11.08.1964; that out of the said property, 4.90 Acres of land was Government land; that the father of the Petitioner No.1 applied for assignment of the said land on behalf of them; that the said 4.90 Acres of land was assigned to the father of the Petitioner as per the Assignment Order of the year 1965 and Ext.P3 Patta was issued on 31.01.1970; that after the Order of Assignment, the father of the Petitioner No.1 relinquished all his rights over the property in favour of the Petitioner No.1 as per Ext.P2 Settlement Deed dated 23.06.1967; that the Petitioner No.1 executed Ext.P4 Settlement Deed dated 17.08.1978 in favour of Petitioners Nos.2 and 3; that the Respondent No.6 submitted a Petition to the Respondent No.2 to cancel Ext.P3 Patta and Respondent No.3 issued Ext.P7 Order illegally cancelling Ext.P3 Patta on the ground that the assignee alienated the property to his daughter within ten years, during which period there was restriction against alienation; and that the Respondent No.2 illegally confirmed Ext.P7 Order as per Ext.P11 Order rejecting the Appeal filed by the Petitioners.

The Respondent No.3 filed Statement dated 27.12.2019 opposing the prayers in the Writ Petition. The Respondent No.6 filed Counter Affidavit dated 18.01.2020 opposing the prayers in the Writ Petition.

I heard the learned Counsel for the Petitioners, Sri. P.K. Mohammed Jameel, the learned Government Pleader, Sri. Biju Lal, for Respondent Nos.1 to 5, and the learned Counsel for Respondent No.6, Sri. Jacob P. Alex.

Learned Counsel for the Petitioners contended that Ext.P3 Patta was cancelled nearly 50 years from the date of issuance of the said Patta invoking Rule 8(3) of the Kerala Land Assignment Rules, 1964, and the issue is covered in favour of the Petitioners as per the Division Bench decision of this Court in Chandy Chandy v. District Collector [2025 KLT OnLine 2260]. In the said decision, the Division Bench considered the legality of the direction of the learned Single Judge that the Respondent Authorities are free to take fresh proceedings for cancelling the registry after taking appropriate proceedings in terms of Rule 8(3) of the Kerala Land Assignment Rules, 1964, or any other law in force, while setting aside the Order cancelling Patta. It is held that the proceedings for cancellation are to be taken within 25 years, since Rule 8(1) of the Kerala Land Assignment Rules, 1964, mentions a period of 25 years for non-alienation. Learned Counsel contended that the period of 25 years mentioned in Rule 8(1) for non-alienation of the land was only 3 years at the time when Ext.P3 Patta was issued and that is why in Ext.P3, Condition No.3 restricting alienation for a period of 10 years was struck off. Since Condition No.3 in Ext.P3 is struck off, there is no condition for non-alienation for the land assigned as per Ext.P3. The Ext.P2 transfer could not be treated as an alienation as the same was made within the family of the assignee to his daughter. It is clear from Ext.P7 Order that Respondent No.6 submitted a Petition for cancellation of Ext.P3 Patta for the first time on 20.02.2017. It is after a period of more than 52 years from the date of the Assignment Order and 47 years from the date of issuance of Ext.P3 Patta. The alienation of the assigned land, which is found in Ext.P7 as a ground for cancellation of Ext.P3 Patta, is in favour of the daughter of the original assignee and since the assignment is within the family, it could not be treated as an alienation, which is restricted under Rule 8(1) of the Kerala Land Assignment Rules, 1964. Even though the Respondent No.6 raised several contentions against the issuance of Ext.P3 Patta, the Respondent No.3 did not find those contentions sustainable and hence, the Patta was cancelled not on those grounds raised by the Respondent No.6. Learned Counsel concluded his arguments, praying to set aside the impugned Orders.

On the other hand, the learned Government Pleader representing the Official Respondents contended that admittedly, the Assignee in Ext.P3 Patta transferred the assigned land in favour of his daughter as per Ext.P2 Document of the year 1967. The assignment was made as per Order dated 15.04.1965 in which the restriction against alienation was for a period of ten years. It is clear from Ext.P2 Document that the daughter of the assignee, who is the Petitioner No.1, was a Government Employee, married and aged 33 years and was not a dependent of the assignee. When the assignee has violated the conditions of the assignment by alienating the assigned property within the period in which the alienation was restricted, the assignment can be cancelled at any time by invoking Rule 8(3) of the Kerala Land Assignment Rules, 1964. The impugned Orders passed by the Respondent No.2 and 3 are perfectly legal and valid and could not be interfered with in this Writ Petition.

Learned Counsel for the Respondent No.6 contended that as per Ext.R6(d) Order of Assignment dated 15.04.1965, the period restricting alienation of the land was ten years, during the relevant time. Learned Counsel contended that the definition of ‘family’ under Rule 2(d) includes a person, his wife and children living with or dependent on them and also the parents who are solely dependent on such person, and hence, the daughter of the assignee, namely, the Petitioner No.1, who was aged 33 years, married and having Government employment, could not be a member of the family of the assignee. Admittedly, the assignee alienated the assigned land within a period of ten years as per Ext.P2 Document to his daughter, who was not dependent on him. In such case, the assignment is liable to be cancelled under Rule 8(3) of the Kerala Land Assignment Rules, 1964. The decision in Chandy Chandy (supra) cited by the learned Counsel for the Petitioners is clearly distinguishable on facts. It deals only with the cancellation of Patta obtained without complying with the statutory formalities. When the conditions of assignment are violated, the Government is fully entitled to cancel the Patta at any time and there is no restriction in initiating proceedings for cancellation of Patta for violation of conditions of assignment. Learned Counsel invited my attention to Rule 8 of the original Kerala Land Assignment Rules, 1964, issued by the State Government as per Notification dated 23.03.1964, in which the period for non-alienation is ten years from the date of registry. Learned Counsel contended that in view of Section 8 of the Kerala Government Land Assignment Act, 1960, all the provisions, restrictions, conditions and limitations in any Patta or other document evidencing the assignment of Government land or of any interest therein shall be valid and take effect according to their tenor, notwithstanding any law for the time being in force or any custom or contract to the contrary. Learned Counsel cited the Division Bench decision of this Court in Treesa Allesh and Another v. State of Kerala and Others [2016:KER:34188] in which this Court considered the question of whether the restriction against alienation for a period of 10 years provided in the Patta is valid when Rule 8 of the Kerala Land Assignment Rules, 1964, prescribes a condition of non-alienation for a period of 3 years. The Division Bench of this Court held that in view of Section 8 of the Kerala Government Land Assignment Act, 1960, the provisions, restrictions, conditions and limitations contained in the Patta evidencing assignment of Government land shall be valid and Rule 8 of the Kerala Land Assignment Rules, 1964, will not supersede Section 8 of the Kerala Government Land Assignment Act, 1960. Rule 4 of the Kerala Land Assignment Rules, 1964, provides that Government lands may be assigned on registry for purposes of personal cultivation, house-sites and beneficial enjoyment of adjoining registered holdings. The assignment in Ext.P3 was for personal cultivation. The Respondent No.6 has been residing near the property assigned as per Ext.P3. When the Petitioners and Respondents Nos.7 and 8 started making hasty preparations to start quarrying operations in the assigned land in violation of the Patta conditions, the Respondent No.6 submitted Petition to the Respondent No.2 highlighting his grievances and requesting to cancel the Ext.P3 Assignment for violations of the conditions of assignment and on other legal grounds. Though several contentions were taken for cancellation of assignment before the Respondent Nos.2 and 3, they considered only the violation of the condition of non-alienation alone in the impugned Orders. The Respondent No.3 illegally found that the assignee has not utilised the land in violation of the conditions of assignment as the assignee has not started quarrying operations though he initiated steps to conduct quarrying operations. Learned Counsel invited my attention to Rule 11 of the Kerala Land Assignment Rules, 1964, which provides for preparation of list of assignable land by the Government. Learned Counsel contended that as per Clause (viii) of Rule 11(2) of the Kerala Land Assignment Rules, 1964, lands containing or believed to contain valuable minerals, quarries, etc., cannot be included in the list of assignable land. Since the Petitioners attempted to conduct quarrying in the assigned land, it is clear that the land contains large quantity of rock. In such case, the subject land could not be included in the list of assignable land and could not be assigned as per Ext.P3 Patta. Learned Counsel cited the decision of this Court in Varkey Abraham v. Secretary to Government [2007 (3) KLT 702] in which the Division Bench this Court held that in order to constitute a ‘quarry’ within the meaning of Clause (viii) of Rule 11(2) of the Kerala Land Assignment Rules, 1964, it is not necessary that actual quarrying is undertaken in the land and it is sufficient that the land has the potential to be converted into a quarry as understood in the common parlance; and that rock available in the land and that too a great extent, would satisfy the requirement of the land being the one containing valuable minerals within the meaning of Clause (viii). Learned Counsel cited the Division Bench decision of this Court in Mathew John v. Land Revenue Commissioner [2025 (5) KLT 37] in which it is held that a Patta cannot be issued in contravention of the Order of Assignment on the registry. Ext.P3 Patta was issued on the basis of Ext.R6(d) Order of Assignment containing restriction against alienation for a period of ten years and hence, Ext.P3 Patta could not be construed as one without the said restriction against alienation. Learned Counsel pointed out that even though the Condition No.3 in Ext.P3 is struck off, it is not authenticated by anybody by subscribing seal and signature. Learned Counsel cited the decision of this Court in Mahindra Holidays and Resorts India Limited v. State of Kerala [2019 (2) KLT 978] in which it is held that if the assignee commits any act defeating the object of assignment, he is bound to restore the land to the assignor. The purpose of assignment as per Ext.P3 is for personal cultivation and house-site. The attempt of the assignee to convert the assigned land into a quarry defeats the very object of the assignment and in which case, the assignment is liable to be cancelled. Learned Counsel pointed out that this Court had called for the Judge’s papers in W.P.(C) No.33512/2019 filed by the Petitioners and Respondent No.7 when the authorities refused to grant permission to conduct a quarry in the assigned land. It can be seen that the said Writ Petition was dismissed as withdrawn and hence all the orders and actions challenged therein have become final and the Petitioners cannot conduct quarrying in the assigned land. Learned Counsel cited the Division Bench decision of this Court in Varghese Kurian v. State of Kerala [2023 KHC 9226], in which this Court followed the earlier decision of this Court in Raphy John and Others v. Land Revenue Commissioner and Others [2022 KHC 3494], wherein this Court held that the land assigned for specific purpose cannot be diverted for using for other purposes. The Division Bench of this Court held that even without there being a specific stipulation in the Patta conditions, the land cannot be used by the holder of the land for the purpose other than the purpose for which the land is assigned. Learned Counsel concluded his arguments by praying to sustain Ext.P7 and P11 Orders on account of the reasons specified therein and also on account of the other reasons made out by him before this Court.

I have considered the rival contentions.

The Respondent No.3 passed Ext.P7 Order cancelling the land assignment as per Ext.P3 on the ground that the assignee alienated the assigned land in violation of the conditions of alienation. As per Rule 8 of the Kerala Land Assignment Rules, 1964, which was existing on the date of issuance of Ext.R6(d) Order of Assignment, the condition for non-alienation was for a period of 10 years from the date of registry. In Ext.R6(d), the condition for non-alienation was for a period of 10 years. In Ext.P3 Patta also, the Condition No.3 for non-alienation was for a period of 10 years. The contention of the Counsel for the Petitioners is that Condition No.3 in Ext.P3 is struck off and hence, there is no condition for non-alienation for the land assigned as per Ext.P3. Admittedly, Ext.P3 Patta is issued on the basis of Ext.R6(d) Order of Assignment. In view of the Division Bench decision of this Court in Mathew John (supra), a Patta cannot be issued in contravention of the order of the assignment on the registry. In such case, it is the conditions in the Order of Assignment which will prevail over the conditions in the Patta. That apart, as rightly pointed out by the learned Counsel for the Respondent No.6, the striking of the Condition No.3 is not endorsed or authenticated by any Officer. Hence, I find that the condition for non-alienation for the land assigned as per Ext.P3 Patta is for a period of 10 years. Admittedly, the assignee in Ext.R6(d) Assignment Order and Ext.P3 Patta alienated the assigned land to his daughter, Petitioner No.1, as per Ext.P2 Document dated 23.06.1967 within the period of restriction. The contention of the learned Counsel for the Petitioners is that the Ext.P2 transfer could not be treated as an alienation as the same was within the family of the assignee in favour of her daughter. Rule 8 of the Kerala Land Assignment Rules, 1964, does not permit alienation to the family members during the period of non-alienation. That apart, as per the definition of ‘family’ in Rule 2(d) of the Kerala Land Assignment Rules, 1964, children living with the assignee or dependent on the assignee alone will come within the definition of ‘family’. From Ext.P2, it is clear that at the time of alienation, the Petitioner No.1 was aged 33 years, married and a Government Employee. Hence, I find that the assignee in Ext.R6(d) and Ext.P3 alienated the assigned land in violation of the condition for non-alienation and hence, the assignment as per Ext.P3 is liable to be cancelled under Rule 8(3) of Kerala Land Assignment Rules, 1964, on this ground.

The next contention of the learned Counsel for the Respondent No.6 is that the land ought not have been included in the list of assignable land prepared under Rule 11 of the Kerala Land Assignment Rules, 1964, as land containing quarry is specifically excluded in Clause (viii) of Rule 11(2). As per the Division Bench decision of this Court in Varkey Abraham (supra), in order to constitute the quarry within the meaning of Clause (viii) of Rule 11(2), it is not necessary that actual quarrying should be undertaken in the land; that it is sufficient that the land has the potential to be converted into a quarry as understood in the common parlance; and that rock available in the land and that too to a great extent, would satisfy the requirement of the land being the one containing valuable minerals within the meaning of Clause (viii). Of course, there is presence of rock as revealed from the attempt of the Petitioners to obtain necessary permission for quarrying in the assigned land. But there is nothing on record to show the extent of rock in the assigned land. The status of the land before the date of Ext.R6(d) Assignment Order is the relevant one to consider. From the Patta Mahazar mentioned in Ext.P7 Order, it is clear that there was rubber cultivation in the land. There is specific factual finding in Ext.P7 that, at the time of issuance of Patta, the land was principally cultivated and it was not rocky puramboke land unsuitable for cultivation. The mere presence of rock far beneath the surface will not make the land unsuitable for cultivation. Hence, it could not be assumed that the assigned land is a quarry which could not be included in the list of assignable land under Rule 11 of the Kerala Land Assignment Rules, 1964. Hence, the contention of the learned Counsel for the Respondent No.6 that the land assigned as per Ext.P3 Patta ought to have been excluded from the list of assignable land in the year 1965 is unsustainable. The question whether the Petitioners are entitled to conduct quarrying, if so, the question whether the quarrying would be in violation of the conditions of assignment and the question regarding the status of the orders/actions impugned in W.P.(C) No.33512/2019 do not arise for consideration in this Writ Petition, as admittedly, the Petitioners have not conducted any quarrying operations in the assigned land. Those questions are left open for consideration in appropriate proceedings at the appropriate stage.

The next contention of the learned Counsel for the Respondent No.6 is that the land was assigned for personal cultivation and house-site, and it could not be used for quarrying and an attempt to conduct quarrying alone is sufficient for cancellation of assignment under Rule 8(3) of the Kerala Land Assignment Rules, 1964. It is found in Ext.P7 Order that though the Petitioners initiated proceedings to conduct quarrying operations in the assigned land, quarrying is not done in the assigned land. There is no case for the official Respondents that the Petitioners have put the assigned property to any use other than permitted in the Ext.R6(d) Order of Assignment. There is no case for either the official Respondents or for the Respondent No.6 that the Petitioners physically attempted to conduct quarrying. Merely because the Petitioners attempted to obtain permissions for quarrying, it could not be said that the Petitioners attempted for quarrying. Hence, this contention of the learned Counsel for the Respondent No.6 is also not sustainable. I, once again, make it clear that I have not said anything regarding the question whether the quarrying would be in violation of the conditions of assignment.

The next question to be considered is whether it is permissible to cancel the assignment invoking Rule 8(3) of the Kerala Land Assignment Rules, 1964, after a long delay in initiating proceedings for cancellation.

The Ext.R6(d) Order of Assignment is dated 15.04.1965. Ext.P3 Patta is dated 31.07.1970. As revealed from Ext.P7, the Respondent No.6 submitted a Petition for the first time on 20.02.2017. It is nearly 52 years after the issuance of Ext.R6(d) Assignment Order and 50 years after the violation of the condition for non-alienation. It is clear from Ext.P7 Order that the Respondent No.6 submitted the Petition when he came to know that the Petitioners are attempting to obtain permission for quarrying in the assigned land. The Respondent No.6 is the neighbouring landowner of the assigned land. His principal grievance is with respect to the use of the assigned land for quarrying and consequential nuisance to him. Even after a long period of the violation of the conditions of assignment, the Government did not initiate any proceedings for cancellation of assignment on its own. The proceedings which resulted in the Ext.P7 Order of cancellation of assignment were initiated only on the basis of the Petition submitted by the Respondent No.6.

In Chandy Chandy (supra), the Division Bench of this Court held that Rule 8 of the Kerala Land Assignment Rules, 1964, does not specify a period of limitation for exercising the power for cancellation of the Patta that is already issued; that the power must be exercised within a reasonable time; that as regards what that reasonable time is, other provisions of the Act are to be looked into for guidance; that Rule 8(1) mentions a period of 25 years for non-alienation of lands and simultaneously provides for a power to resume the assigned lands if there is a breach of any conditions governing the original assignment; that it is through the same provision that the power to resume lands on discovery of mistake/fraud, etc., is conferred; that therefore the statutory provision itself indicates that the monitoring period for the Patta is only 25 years and if any action for cancellation of the Patta for breach of the conditions under which it was granted is taken, it has to be taken within that time. The Division Bench found that in the said case, no action was taken by the State for almost 30/40 years from the date of issuance of the Patta; that the conduct of the State in accepting tax in respect of the lands covered by the Pattas would effectively estop it from contending that it had no knowledge of the alleged fraudulent acts during all these years; and that after the expiry of 30 years, the Writ Petitioners would also be entitled under law to defend any action by the State towards dispossessing them on the plea of adverse possession.

The contention of the learned Counsel for the Respondent No.6 is that the limitation period prescribed by the Division Bench is for initiating proceedings for cancellation of Patta on account of non-compliance with the statutory formalities. I am unable to accept the said contention. There is no indication that the limitation period prescribed by the Division Bench is only for initiating proceedings for cancellation of Patta on account of non-compliance with the statutory formalities. The Division Bench of this Court has not made any such distinction while considering the period of limitation for initiating proceedings under Rule 8(3) of the Kerala Land Assignment Rules, 1964, in the said decision. The purpose of prescribing limitation period for the proceedings is to have finality of the rights of the parties. If no limitation period is prescribed for instituting the proceedings for cancellation of Patta under Rule 8(3) of the Kerala Land Assignment Rules, 1964, there will be utter chaos and confusion with respect to the title of the land assigned under the provisions of the Kerala Government Land Assignment Act, 1960, and the Rules made thereunder, forever. The condition for non-alienation under Rule 8(1) of the Kerala Land Assignment Rules, 1964, was for a period of 10 years when Ext.R6(d) Order of Assignment was issued. In Ext.R6(d) also, the same period is prescribed. Now, as per Rule 8(1A) of the Kerala Land Assignment Rules, 1964, the condition for non-alienation is applicable only for assignment of unoccupied lands for a period of 12 years from the date of assignment of the registry. Taking note of the dictum laid down by the Division Bench of this Court in Chandy Chandy (supra), it can safely be concluded that the period of limitation for initiating the proceedings for cancellation of assignment under Rule 8(3) of the Kerala Land Assignment Rules, 1964, is the period prescribed in the condition for non-alienation applicable to the Patta, calculated from the date on which the cause of action arose for initiating such proceedings. If the Government chooses to file a suit for recovery of the assigned land, the period of limitation would be governed by the limitation period of 30 years prescribed under Article 112 of the Limitation Act, 1963.

In the case on hand, the period prescribed for the condition for non-alienation was for 10 years. The condition for non-alienation was violated as per Ext.P2 dated 23.06.1967. The proceedings which resulted in Ext.P7 impugned Order was initiated nearly 50 years after the violation. Even the limitation period of 30 years for filing the suit for recovery of possession by the Government is over by that time. The proceedings which resulted in Ext.P7 impugned Order are clearly time-barred. The impugned Ext.P7 Order passed in such proceedings is unsustainable. The Petitioners are entitled to succeed in this Writ Petition.

Accordingly, I allow this Writ Petition by issuing a Writ of Certiorari setting aside the proceedings which resulted in the Ext.P7 Order, including Exts.P7 and P11 Orders.