IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY,THE25H DAY OF JULY20143RD SRAVANA, 1936 WP(C).No. 20075 of 2007 (M) ---------------------------------------- PETITIONERS: --------------------- 1. M/S K.P.C.PROPERTIES, APARTNERSHIP FIRM REPRESENTED BY ITS MANAGING PARTNER SHRI. JERALD JACOB, S/O K.P.CHACKO, RESIDING AT 'KAKKANATTU HOUSE', PERINGAZHA, PERUMPALOOR POST, MUVATTUPUZHA.
2. SHRI. JERALD JACOB, S/O. K.P.CHACKO, RESIDING AT 'KAKKANATTU HOUSE', PERINGAZHA, PERUMPALOOR POST, MUVATTUPUZHA. BY ADVS.SRI.K.JAYAKUMAR, SRI.P.B.KRISHNAN. RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. THE PRINCIPAL SECRETARY TO GOVERNMENT, STATE OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
3. THE DISTRICT COLLECTOR, IDUKKI. BY SPL. GOVERNMENT PLEADER SMT. SUSHEELA .R. BHATT. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON1104-2014, ALONG WITH W.P.(C).NOS. 20266/2007 AND215732007, THE COURT ON2507-2014 DELIVERED THE FOLLOWING: W.P.(C).NO.20075/2007 - M: APPENDIX PETITIONER'S EXHIBITS: EXT.P.1: DATED1003-1993,TRUE COPY OF PATTA NO.12321 ISSUED IN FAVOUR OF FRANCIS EXT.P.2: DATED0209-1993,TRUE COPY OF PATTA NO.12811 ISSUED IN FAVOUR OF E.M. KURIAN EXT.P.2.(a): DATED0309/1993,TRUE COPY OF TAX RECEIPT ISSUED TO E.M. KURIAN. EXT.P.2.(b): DATED2803-1995, TRUE COPY OF THANDAPER ACCOUNT ISSUED TO E.M. KURIAN. EXT.P.2.(c): DATED2803-1995, POSSESSION CERTIFICATE ISSUED TO E.M. KURIAN. EXT.P.3: DATED0209-1993, TRUE COPY OF PATTA NO.12812 ISSUED TO E.M. THOMAS. EXT.P.3(a): DATED0309-1993, TRUE COPY OF TAX RECEIPT ISSUED TO E.M. THOMAS. EXT.P.3(b): DATED2803-1995, TRUE COPY OF THANDAPER ACCOUNT ISSUED TO E.M. THOMAS. EXT.P.3(c): DATED2803-1995, TRUE COPY OF POSSESSION CERTIFICATE ISSUED TO E.M. THOMAS. EXT.P.4: DATED2210-1993, TRUE COPY OF PATTA NO.13049 ISSUED IN FAVOUR OF FRANCIS. EXT.P.5: DATED0511-1993, TRUE COPY OF PATTA NO.13220 ISSUED IN FAVOUR OF K.J.
DOMINIC. EXT.P.5(a): DATED0811-1993, TRUE COPY OF TAX RECEIPT ISSUED TO K.J.
DOMINIC. EXT.P.5(b): DATED2803-1995, TRUE COPY OF THANDAPER ACCOUNT ISSUED TO K.J.
DOMINIC. EXT.P.5(c): DATED2803-1995, TRUE COPY OF POSSESSION CERTIFICATE ISSUED TO K.J.
DOMINIC. EXT.P.6: DATED0511-1993, TRUE COPY OF PATTA NO.13221 ISSUED IN FAVOUR OF K.I. ITTAN KUNJU. EXT.P.7: DATED2311-1995, TRUE COPY OF THE DOCUMENT NO.3160/95, S.R.O., DEVICOLAM ISSUED TO FRANCIS. Prv. W.P.(C).NO.20075/2007 - M: EXT.P.8: DATED2507-1995, TRUE COPY OF THE DOCUMENT NO.2204/95, S.R.O DEVICOLAM ISSUED TO E.M. KURIAN. EXT.P.9: DATED0408-1995, TRUE COPY OF THE DOC. NO.2299/95, S.R.O, DEVICOLAM ISSUED TO E.M. THOMAS. EXT.P.10: DATED0408-1995, TRUE COPY OF THE DOCUMENT NO.2300/95, S.R.O, DEVICOLAM ISSUED TO FRANCIS. EXT.P.11: DATED1007-1995, TRUE COPY OF THE DOCUMENT NO.2085/95, S.R.O., DEVICOLAM ISSUED TO K.J.
DOMINIC. EXT.P.12: DATED1007-1995, TRUE COPY OF THE DOCUMENT NO.2087/95, S.R.O., DEVICOLAM ISSUED TO K.I. ITTAN KUNJU. EXT.P.13: DATED2006-1997, TRUE COPY OF THE
ORDERIN FILE NO.372/96. EXT.P.14: DATED2006-1997, TRUE COPY OF THE
ORDERIN FILE NO.373/96 & 375/96. EXT.P.15: DATED2005-1999, TRUE COPY OF THE
ORDERIN FILE NO.372/96. EXT.P.16: DATED2005-1999, TRUE COPY OF THE
ORDERFILE NO.375,373/96. EXT.P.17: DATED3005-2000, TRUE COPY OF DOCUMENT NO.1402/2000, S.R.O., DEVICOLAM. EXT.P.18: DATED3005-2000, TRUE COPY OF DOCUMENT NO.1408/2000, S.R.O, DEVICOLAM. EXT.P.19: DATED0401-2000, TRUE COPY OF THE STATEMENT BY TAHSILDAR, DEVICOLAM. EXT.P.20: DATED2808-2000, TRUE COPY OF THE
JUDGMENTIN O.P.30376/99-N. EXT.P.21: DATED1902-2001, TRUE COPY OF THE
ORDERNO.B5-3780/96 BY THE R.D.O., DEVOCOLAM. EXT.P.22: DATED1711-2001, TRUE COPY OF THE
ORDERNO.LR (J) 3-17560/2001. EXT.P.23: DATED0310-2006, TRUE COPY OF THE
JUDGMENTIN O.P. 15924/2002-U. EXT.P.24: DATED0802-2005, TRUE COPY OF THE
ORDERNO.B7/04. EXT.P.25: DATED1701-2005, TRUE COPY OF THE DOCUMENT NO.215/2005, S.R.O., DEVICOLAM. EXT.P.26: DATED0704-2005, TRUE COPY OF THE DOCUMENT NO.1564/2005,S.R.O.,DEVICOLAM. EXT.P.27: DATED2401-2007, TRUE COPY OF THE
ORDERNO.B2-40/07 ISSUED BY THE SUB COLLECTOR, DEVICOLAM. EXT.P.28: DATED0209-2003, TRUE COPY OF THE
ORDERNO.B3-13446/2003. Prv. W.P.(C).NO.20075/2007 - M: EXT.P.29: DATED2504-2007, TRUE COPY OF THE TAX RECEIPT NO.781934. EXT.P.30: DATED2805-2007, TRUE COPY OF THE
JUDGMENTIN W.P.14847/07-P. EXT.P.31: DATED0406-2007, TRUE COPY OF THE NOTICE NO.A2-1927/07. EXT.P.32: DATED0506-2007, TRUE COPY OF THE WRITTEN SUBMISSION BY THE PETITIONER NO.2. EXT.P.33: DATED1906-2007, TRUE COPY OF THE NOTICE NO.B3-7158/94. EXT.P.34: DATED1806-2007, TRUE COPY OF THE NOTICE NO.31773/A2/2007/RD. EXT.P.35: DATED NIL, TRUE COPY OF THE COVER USED FOR SERVING EXT.P.34. EXT.P.36: DATED2206-2007, TRUE COPY OF THE WRITTEN SUBMISSION BY PETITIONER NO.2. EXT.P.37: DATED2306-2007, TRUE COPY OF G.O.(MS).NO.230/2007/R.D. EXT.P.38: DATED0203-1935, TRUE COPY OF THE NOTIFICATION R.DIS. NO.448/35/REV. ISSUED BY TRAVANCORE GOVERNMENT. EXT.P.39: DATED2006-2001, TRUE COPY OF THE PROCEEDINGS NO.L.R(J) 3- 29737/99/C. DIS. ISSUED BY THE COMMISSIONER OF LAND REVENUE. EXT.P.39(a): TRUE ENGLISH TRANSLATION OF EXT.P.39. EXT.P.40: DATED2002-2007, TRUE COPY OF THE PROCEEDINGS NO.C1-39079/2005, ISSUED BY THE DISTRICT COLLECTOR, IDUKKI. EXT.P.40(a): TRUE ENGLISH TRANSLATION OF EXT.P.40. RESPONDENTS' EXHIBITS: EXT.R3.(a): A TRUE COPY OF REPORT NO.G2-22458/07 DTD. 12/06/2007 OF THE DEPUTY DIRECTOR OF SURVEY, IDUKKI WITH ENGLISH TRANSLATION. EXT.R3.(b): A TRUE COPY OF THE LETTER NO.B5682000 DTD. 28-12-2000 OF SUPERINTENDENT OF SURVEY (L.A), DEVIKULAM ISSUED TO THE R.D.O., DEVIKULAM WITH ENGLISH TRANSLATION. EXT.R3.(c): A TRUE COPY OF THE DIGITALIZED SURVEY SKETCH SHOWING THE CORRECT SURVEY NUMBER PREPARED ON THE BASIS OF DIGITAL LITHO MAP AND OLD AND RESURVEY CORRELATION. EXT.R3.(d): A TRUE COPY OF THE SKETCH DRAWN BASED ON THE OLD LITHO MAPS AND RESURVEY MAPS SHOWING OLD SURVEY NUMBER NAMELY481AND862AND ALSO435AND CORRELATING RESURVEY NUMBERS AS AVAILABLE IN THE RECORDS WHICH IS DRAWN TO SCALE. Prv. W.P.(C).NO.20075/2007 - M: EXT.R3.(e): A TRUE COPY OF THE DIAGRAM SHOWING THE VARIOUS BOUNDARIES OF THE ALLEGED PATTAYAMS AS AVAILABLE FROM THE RECORDS DRAWN BASED ON THE MAHAZARS. EXT.R3.(f): A SKETCH VERIFICATION REPORT BASED ON THE VARIOUS PATTAS. //TRUE COPY// P.A. TO JUDGE. Prv. MANJULA CHELLUR, CJ & A.M.SHAFFIQUE, J.
* * * * * * * * * * * * * W.P.C.Nos.20075 of 2007, 20266 of 2007 & 21573 of 2007 --------------------------------------------- Dated this the 25th day of July 2014
JUDGMENT
SHAFFIQUE,J An order dated 23/06/2007 issued by the Government cancelling the pattayam issued in favour of 9 assignees and thereby extinguishing the rights of the present holders over the said lands are challenged in these writ petitions and hence decided together. For convenience the parties and documents are referred to as shown in W.P.C.No.20075 of 2007, unless otherwise stated. Ext.P37 is the impugned order. Apart from cancelling the pattas, it is further declared that the constructions in the said lands are illegal and unauthorised and holders were granted time to remove the construction and the materials from the site.
2. The facts involved in W.P.C.No.20075 of 2007 would disclose that the 1st petitioner claimed ownership and W.P.C.No.20075 of 2007 & conn.cases 2 possession in respect of 12.83 acres of land in R.S.Nos.164/2, 166/2 and 167/3 (Old Survey No.435/Pt) of Anaviratty village. According to the petitioners, the said properties were assigned by the Government in favour of six persons by exercising the power under the Kerala Land Assignment Act, 1960 (hereinafter referred to as 'KLA Act') and the Kerala Land Assignment Rules, 1964 (hereinafter referred to as 'KLA Rules) and pattas were issued in their names. The assignees under the pattas subsequently conveyed their interest in the property in favour of Smt.Agnus and Fr.Jose Kandathil as per separate sale deeds. Necessary mutation entries were also effected in regard to the right and ownership of the land in the basic tax register (for short 'BTR'). Fr.Jose Kandathil, who obtained title to certain items of property, conveyed his right over portion of the property to his brothers and Gigi @ Thomas. According to the 1st petitioner, he purchased the property from Gigi @ Thomas as per document No.1402/2000 produced as W.P.C.No.20075 of 2007 & conn.cases 3 Ext.P17. The 1st petitioner also purchased certain item of property from Smt.Agnus as per sale deed document No.1408/2000 produced as Ext.P18.
3. In the meantime, one Xavier Xavier and another raised certain disputes alleging that the pattas were bogus. O.P.No.30376 of 1999 came to be filed before this Court, and as per directions in the judgment dated 28/08/2000, the Revenue Divisional Officer (RDO), Devikulam conducted an enquiry and found that the said allegations were baseless. Ext.P21 is the said order dated 19/02/2001. Sri.Xavier Xavier challenged the said order by preferring a revision petition before the Land Revenue Commissioner. The same came to be dismissed as per Ext.P22 order dated 17/11/2001. Sri.Xavier Xavier again challenged Exts.P21 and P22 orders by filing O.P.No.15924 of 2002 before this Court. As per judgment dated 03/10/2006, the said petition was dismissed. In the meantime, the survey particulars were verified in terms of the order passed by the RDO as Ext.P21 W.P.C.No.20075 of 2007 & conn.cases 4 and it was found that there are certain discrepancies in the re-survey numbers which were directed to be corrected. Ext.P24 is the said order dated 08/02/2005. Pursuant to the said order, rectification deeds were also prepared and registered to correct the survey number particulars.
4. Petitioners made substantial improvements in the property and they were given permission to develop tourist facilities in the property, but the property was used only for cultivation.
5. The petitioners sold portion of the said properties to Abad Motels & Resorts (P) Ltd., the petitioner in W.P.(C) No.20266/2007 and they were developing a tourism project in the said property. They were served with a stop memo by the revenue authorities which came to be challenged in W.P.C.Nos.15249 of 2007 and 14847 of 2007. The said writ petitions were disposed by this Court on 28/5/2007 taking on record the submission made by the learned Advocate General that orders will be passed pursuant to the stop W.P.C.No.20075 of 2007 & conn.cases 5 memo within ten days after considering the objection of the parties and until such orders are passed, no steps will be taken for demolishing the building already constructed in the property.
6. The petitioners were served with notice dated 04/06/2007 for a hearing on 05/06/2007 by the Principal Secretary, Revenue. Petitioners submitted a written submission during the said hearing. 1st petitioner was again served with another notice dated 19/06/2007 scheduling the hearing on 22/06/2007. Yet another notice was issued to the 2nd petitioner also which was served on him on 22/06/2007. Ext.P34 is the said notice. 2nd petitioner submitted a written submission as Ext.P36 and Ext.P37 order was passed on 23/06/2007.
7. In W.P.(C) No.20266/2007, the petitioners contend that they purchased an extent of 40.47 Ares in old survey No. 435 part and in re-survey No. 167/1-1 of Block 12 of Anaviratty village from the patta holder Jojo Kurian, covered W.P.C.No.20075 of 2007 & conn.cases 6 by LA5693 bearing patta No.12736, an extent of 157.97 Ares in old survey No.435 part and in re-survey No. 167/2 and 174 of Block 12 of Anaviratty village, an extent of 239.17 Ares in old survey no. 435 part and in re-survey no. 174 of Block 12 of Anaviratty village and an extent of 2.02 Ares in old survey No.435 part and in re-survey No. 167/3 of Block 12 of Anaviratty village from the 1st petitioner in W.P.C.No.20075/2007. These properties were purchased as per registered sale deed Nos.207/2005, 594/2005 and 2331/2005 of SRO Devikulam. Petitioner also obtained necessary permission from Pallivasal Grama Panchayat for setting up a tourist resort. The revenue authorities served stop memo on the petitioner which was challenged in W.P.C.Nos.15249 of 2007 and 14847 of 2007. The said writ petitions were disposed by this Court on 28/05/2007 taking on record the submission made by the learned Advocate General that orders will be passed pursuant to the stop memo within ten days after considering the objection of the W.P.C.No.20075 of 2007 & conn.cases 7 parties and until such orders are passed, no steps will be taken for demolishing the building already constructed in the property. The petitioners were served with notice dated 01/06/2007 for a hearing on 05/06/2007 by the Principal Secretary, Revenue. During the hearing Petitioners submitted a written statement. 1st petitioner was again served with another notice dated 18/06/2007 scheduling the hearing on 22/06/2007. The 1st petitioner sent letter dated 21.6.2007 requesting for the documents relied upon by the Government in the show cause notice. Before an order was passed attempts were made to evict the petitioners by invoking land conservancy proceedings. However, on 26/06/2007, Ext.P18, a fresh notice under Rule 13A of Land Conservancy Rules was served on the petitioner for evicting the petitioner, along with the Government order dated 23/6/2007, which is produced as Ext.P19. The petitioners therefore impugns Ext.P18 and Ext.P19 in this writ petition. W.P.C.No.20075 of 2007 & conn.cases 8 8. In W.P.(C)No.21573/2007, Fr.Jose Kandathil is the petitioner. His claim is with reference to an extent of 12 cents in old survey No.435 part and in re-survey no. 167/1-7 of Block 12 of Anaviratty village from the patta holder Abraham, covered by L.A2394 bearing patta No.14166, purchased as per registered sale deed No.3036/1995. It is contended that the petitioner has purchased other properties also which was later assigned and is in the possession of Abad Motels and Resorts (P) Ltd. He was also served with notice scheduling the hearing on 22/06/2007 and on 23/06/2007 the impugned order was passed, which is produced as Ext.P4 and impugned in this writ petition.
9. The common case of petitioners is that the hearing was only a farce. Even before the said hearing, there were reports in the print and electronic media that the Government has taken a decision to cancel the pattas issued to Abad Motel & Resorts (P) Ltd. The contention urged by the petitioners in these writ petitions are as under: W.P.C.No.20075 of 2007 & conn.cases 9 i) Ext.P37 order had been issued in gross violation of principles of natural justice as the petitioners were not given sufficient opportunity to defend their case. None of the documents relied upon by the Government in the impugned order was served on the petitioner which has substantial bearing with reference to the merits of the case. ii) Cancellation of patta can only be made by the assigning authority or its superior authority in terms of Rule 8(3) of the KLA Rules. The said power can be exercised only once. The said power had already been exercised by the authorities and it was confirmed by the appellate/revisional forum and by this Court. The Government has no jurisdiction to initiate fresh proceedings under Rule 8(3) of the KLA Rules as the orders of lower authorities have merged with the judgment of this Court. iii) The final revisional authority is the Board of Revenue (presently Land Revenue Commissioner) and the Government has no further power of revision under Rule W.P.C.No.20075 of 2007 & conn.cases 10 21(9) of the KLA Rules, which provision is held to be ultra vires the powers of delegation conferred under Section 7(1) of the KLA Act. iv) The lands involved in the present case are occupied lands which can be alienated without any restriction. The conditions of the patta does not create any restriction on alienation. v) There is no material whatsoever to come to a finding that the patta holders were bogus and non-existent persons.
10. Counter affidavit is filed on behalf of the 3rd respondent inter alia contending that during 1993-1994 certain rumours spread about the large scale issue of bogus pattayams by the revenue officials. It was found that out of 550 pattayams issued by the Special Tahsildar (LA) Devikulam, about 250 were bogus and subsequently cancelled. A complaint was filed by a local person alleging that Fr.Jose Kandathil obtained 24 benami pattayams in W.P.C.No.20075 of 2007 & conn.cases 11 Anaviratti and Pallivasal villages. On enquiry it was found that Fr.Jose Kandathil and Agnus along with one P.J.Mathew have purchased the land assigned in L.A cases 13/93, 83/93, 84/93, 209/93, 210/93 and 23/94. On further verification it was found that the land in question actually is situated in Survey Nos.481/1 and 862 which are not included in the list of assignable lands. The aforesaid persons thereafter transferred a portion of the land to the petitioners. The 2nd petitioner sold an extent of 10.63 acres of land in Re-Survey Nos.167/1-1, 167/2, 169/3 and 174 of Anaviratti village to M/s.Abad Motels & Resorts (P) Ltd. When they started construction, the Tahsildar, Devikulam, on verification found that the land is Government property and hence a stop memo dated 25/4/2007 was issued which resulted in the subsequent litigations.
11. The respondent supported the order passed by the Government by contending that the pattas were issued in respect of lands coming under Survey No.435. On re-survey, W.P.C.No.20075 of 2007 & conn.cases 12 it was found that the land covered by the pattas in question are in Re-survey Nos.165, 166/1-1, 166/1-2, 166/1-7, 167/1- 5, 174/1-1, 174/1-2 and the said Re-survey numbers were corresponding to old survey Nos.481/1 and 862. In so far as the pattas were issued in Survey No.435, the land in possession of the petitioners were not the land covered by the said patta. They cannot claim ownership with reference to property included in Survey Nos.481/1 and 862 which are not forming part of the list of assignable lands. It is inter alia stated that the District Collector, Idukki has cancelled the land in Survey No.435 from the list of assignable lands as per proceedings dated 14/06/1994. Therefore, according to the Government, the entire process of assignment of land were all bogus and illegal and therefore the Government has the right to take possession of the land. It is contended that in so far as petitioners are in possession of lands which are not covered by the pattas or it is covered by invalid pattas, they cannot claim any benefit either under the KLA W.P.C.No.20075 of 2007 & conn.cases 13 Act or the Rules framed thereunder.
12. Reply affidavit is filed by the petitioners further reiterating the contentions in the writ petition. It is inter alia stated that the assigned lands fell in old Survey No.435 and the contrary contentions are incorrect. It is pointed out that the Travancore Government had set apart 10,000 acres in Sy.No.19 for Pallivasal project, for assignment as evident from Ext.P38 notification dated 02/03/1935. After the State's re-organisation, when new survey numbers were allotted, Sy.No.19 was changed to Old Sy.No.435. The said land was classified as 'tharisu' in Government records and was treated as assignable lands. Sy.No.435 spread over four villages and later new survey numbers were carved out of old Sy.No.435. According to the petitioners, Sy.No.481 and 862 are two such survey numbers carved out of old Sy.No.435. Therefore, according to them, the assignment was proper and in accordance with the procedure prescribed. W.P.C.No.20075 of 2007 & conn.cases 14 13. An affidavit is filed by the 3rd respondent further making certain clarifications. They rely upon a report dated 12/06/2007 prepared by the Deputy Director of Survey, Idukki in order to contend that the lands in occupation of Abad Motels and Resorts was situated in Sy.Nos.481 and 862 and not in Sy.No.435. They reiterated the fact that new survey numbers were assigned during re-survey corresponding to Sy.Nos.481 and 862. In so far as they are in possession of land in old Sy.Nos.481 and 862, the pattayams shows wrong survey No.435. It is reiterated that properties in old Sy.No.481 and 862 were not assignable lands. The affidavit further indicates that in Ext.P21 proceedings dated 19/02/2001, the RDO refers to a letter issued by the Superintendent of Survey, Land Records, Devikulam. According to the deponent, the said certificate has been issued based on wrong data and false report. Now the actual records reveal a different picture. The digitalized survey sketch showing the correct survey number prepared W.P.C.No.20075 of 2007 & conn.cases 15 on the basis of digital lithomap and old survey number are also produced. Exts.R3(c), R3(d) and R3(f) are the particulars relating to the same.
14. By an interim order dated 06/09/2013, we directed the respondent authorities to produce the original records pertaining to issuance of patta in each of the nine cases. The responsible officer was also directed to place on record by way of an affidavit as to when the lands came to be assigned in 1993-1994 and whether there was list of assignable and non-assignable lands prepared in the Anaviratty and Pallivasal villages. An affidavit is filed by the Deputy Collector (LR and LA) Collectorate, Idukki stating that list of lands No.1 showing the details of additional list to be included in the assignable lands was prepared on 23/09/1998. List No.4 which depicts the lands reserved for Government and public purpose is shown as nil. It is further stated that, two documents produced as Ext.R3(a) and R3(b) alone could be searched out and attempts are still being W.P.C.No.20075 of 2007 & conn.cases 16 made to trace out old records. The Special Government Pleader has also placed on record the original files relating to the nine pattas issued by the Government. Further, another memo is filed on 25/10/2013 producing additional documents as directed by this Court.
15. A perusal of Ext.P37, the impugned order would show that the Government had come to the conclusion that nine pattas issued in favour of various persons are false and are liable to be cancelled. The details of the said pattas are as under: Sl.N L.A.Case Name of Assignee Survey Extent of Patta No. o. No. No. land in & Date areas 1 10/93 Baby, S/o.Mathai, Vattakuzhiuil 435 pt. 3.64 12318 Veedu, Lakshmibhagam, 10-03-93 Anaviratty 2 13/93 Francis, S/o.Varkey, Edathattel, 435 Pt. 2.77 12321 Lakshmi, Anaviratty 10-03-93 3 15/93 Mathai, S/o.Ouseph, Varatukalayil, 435 Pt. 2.55 12323 Lakshmi, Anaviratty 10-03-93 4 83/93 E.M.Kurian, Edattel Veedu, 435 Pt. 3.29 12811 Lakshmi Kara, Anaviratty 02-09-93 5 84/93 E.M.Thomas, Edattel Veedu, 435 Pt. 3.75 12812 Lakshmi Puthuval, Anaviratty 02-09093 W.P.C.No.20075 of 2007 & conn.cases 17 Sl.N L.A.Case Name of Assignee Survey Extent of Patta No. o. No. No. land in & Date areas 6 207/93 P.A.Geevarghese, Puthukkunnel, 435 Pt. 3.87 13222 Lakshmi Puthuval, Anaviratty 04-11-93 7 209/93 K.J.Dominic, S/o.Joseph, 435 Pt. 2.37 13220 Kachilayil Veedu, Lakshmi 04-11-93 Puthuval, Anaviratty 8 210/93 Ittankunju, Kallungal Veedu, 435 Pt. 2.09 13221 Lakshmi Puthuval, Anaviratty 05-11-93 9 23/94 Abraham, S/o.Mani, 435 Pt. 0.12 14160 Thattammattel, Lakshmi Puthuval, 24-02-94 Anaviratty 16. It is observed that on the basis of certain objections raised by Sri.Xavier Xavier, the matter came to be considered by the RDO, Devikulam and the same came to be disposed on 19/03/2001 regularising the issuance of patta. Sri.Jerald Jacob later acquired the entire property out of which an extent of 10.63 acres were conveyed to M/s.Abad Motels. It is inter alia observed that the matter was heard on 05/06/2007 and the learned counsel for M/s.Abad Motels and Resorts (P) Ltd. and some of the respondents were present and that it was not necessary to issue notice to all parties under Rule 8(3) of the KLA Rules. In the impugned W.P.C.No.20075 of 2007 & conn.cases 18 order, the Government observes that the particulars seen in the mahazar by which the Tahsildar had made enquiries does not give the correct particulars. There are major contradictions between the contents of the records, mahazar of the Village Officer and the Tahsildar's verification report prepared in 2000. It is indicated that though the lands are stated to be under cultivation, there is no such mentioning in the schedule. The use of land is not mentioned either in the application, mahazar, patta or in the assignment order. There was no evidence to show that the property was under cultivation at any point of time. It is recorded in the documents prepared by the Tahsildar, Devikulam, that the property was not occupied for twenty years. As the patta is distributed based on the said document and the document also identified the Sy.No. of the property as 435 Pt., there are other deficiencies in the manner of assignment and the procedure adopted. There are defects in the patta documents also as Appendix III of Part III schedule was not W.P.C.No.20075 of 2007 & conn.cases 19 appended. It is therefore found that records were generated to ensure that the lands could be taken over by subsequent buyers. It is further observed that Fr.Jose Kandathil, Smt.Agnus and Sri.P.J.Mathew were involved in grabbing lands assigned in the name of landless people and then indulging in sale of properties. It is also found that the procedure as laid down in Rule 12 and 12A of KLA Rules has not been followed. The finding of RDO that the patta lands were in Sy.No.435 is based on the report of the Superintendent of Survey. The BTR was examined during the hearing. The District Collector had verified and reported on 18/06/2007 that the Re-Sy.Nos. of the property purchased by Abad Motels & Resorts which is part of the properties assigned to the aforesaid nine assignees falls under Sy.Nos.481 and 862. This, according to the Government is certified in the report of the Deputy Director (Survey) of Idukki. The Adalath certificate issued by the Superintendent of Survey which is the basis of RDO's order is therefore W.P.C.No.20075 of 2007 & conn.cases 20 incorrect. It is therefore found that sale of properties by the nine assignees within 15 months of assignment is a violation of the Rules and the conditions laid down in the patta. Further, there are serious procedural illegalities and factual errors in the documents leading to the issue of patta. Further, there is no co-relation between the lands to which pattas pertain and the lands where Abad Motels & Resorts (P) Ltd. is constructed. Still further, there is violation of land use conditions of the assigned properties.
17. Government also found that in order to find out whether the assignees were genuine persons, notices were issued to them and they were asked to be present in person. But they were not present and they could not be located in the address given in the application for assignment. It is therefore found that substantial discrepancies had occurred based on erroneous certificates issued by the survey officials. In the said circumstances, the proceedings of the RDO dated 19/02/2001 as confirmed by the Commissioner, W.P.C.No.20075 of 2007 & conn.cases 21 Land Revenue was reviewed and the impugned order had been passed.
18. As far as the petitioners in W.P.C.20075 of 2007 are concerned, they are concerned with five and the petitioners in W.P.C.20266 of 2007 and W.P.C.21573 of 2007 are concerned with the other pattas.
19. Heard the learned counsel appearing on behalf of the petitioners and the learned Special Government pleader. The main contention urged by the petitioners is regarding violation of principles of natural justice. It is pointed out that before cancellation of patta is attempted, proper notice has to be issued and the material relied upon by the Government has to be supplied. This according to the petitioner, was not complied with and the decision was taken hastily and without giving proper opportunity to raise a defence. Another important contention is with reference to the jurisdiction of the Government to issue an order in the nature of Ext.P37. They rely upon judgment of this Court in W.P.C.No.20075 of 2007 & conn.cases 22 Karimtharuvi Tea Estates Ltd. v. State of Kerala [1999 (1) KLT33. In the said judgment, a Division Bench of this Court while considering the vires of Rule 21(9) of the KLA Rules, found that since the power of revision is prescribed under Clause (n) of Section 7(1) it has to be held that sub Rule (9) of Rule 21 purportedly framed in exercise of the power under Clause (q) of Section 7(1) is void and unenforceable. It is argued that power under Rule 8(3) can be exercised only by the assigning authority or a superior authority. Since already the authorities have taken a decision which is confirmed by the appellate authority and this Court, the orders had become final and the Government cannot further review the same. It is contended that the present proceedings are barred by the principles of res judicata.
20. Having regard to these contentions urged by the petitioners, Learned Special Government Pleader while supporting the stand taken by the Government submits that W.P.C.No.20075 of 2007 & conn.cases 23 sufficient notice had been given to the petitioner and they had submitted their written submissions which were considered and a detailed order had been passed. It is further contended that in so far as the property in possession of the petitioners do not come under Sy.No.435 part, which alone is assigned land, the pattas issued in favour of various persons in regard to property assigned in old Sy.No.435 Pt. does not give any right or claim to the petitioners herein as they are in occupation of lands which are not covered by the said patta.
21. The learned senior counsel Sri.K.Jayakumar appearing on behalf of the petitioner in WPC.No.20266 of 2007 while impugning the very same Government order submits that there is enough material to show that Sy.Nos.481 and 862 were carved out of Sy.No.435 Pt. and if so, the main contention of the Government that they are in occupation of lands which are not covered by the patta will be without any basis. It is further argued that the said W.P.C.No.20075 of 2007 & conn.cases 24 petitioner had purchased the land after the dispute between the patta holders, their assignees and the objectors had become final. In so far as there is a finality of the issue involved in the matter, Government cannot reopen the same and cancel the patta which will in effect amount to summary eviction of the petitioners from the property in their possession.
22. Before going into the question of considering as to whether there is violation of principles of natural justice, the question to be considered is whether i) the impugned order is barred by general principles of res judicata and; ii) whether the Government has the jurisdiction to review or revise the orders passed by the RDO, the appellate order passed by the Land Revenue Commissioner as confirmed by this Court in an original petition.
23. A perusal of Ext.P21 order will be useful to answer this issue. In Ext.P21, the question involved was with W.P.C.No.20075 of 2007 & conn.cases 25 reference to patta covered by LA case Nos.10/92, 13/93, 15/93, 207/93, 209/93, 210/93, 84/93, 83/93 and 23/94 of Anaviratty Village. All the properties covered by the aforesaid pattas are situated in Sy.No.435 Pt. of Anaviratty village. It is observed that on a preliminary enquiry by the Taluk Suveyor it was revealed that the lands involved in the cases were situated in Sy.No.481/1 and 862 and that the properties included in the said survey number was not forming part of the list of assignable lands. It was considered to be a mistake of fact or misrepresentation. Therefore the pattas were liable to be cancelled. It is pursuant to such an enquiry that notice had been issued to all parties concerned. It is further observed that the Tahsildar, Devikulam and Superintendent of Survey and Land Records, Devikulam furnished their enquiry report on 01/12/2000 and 28/12/2000. Tahsildar's report is based on the Adalath certificate issued by the Superintendent of Survey and Land Records for identifying the land. As per the W.P.C.No.20075 of 2007 & conn.cases 26 decision of the Adalath, which is certified on 20/05/1999 it is stated that the land involved in nine LA cases are included in Re-Sy.Nos. 165, 166/1-1, 167/1-7, 175/1-1, 166/1-2, 174/1- 2, 166/1-7 and 167/1-5, and that the corresponding old Sy.No.is 435. It is further found that the findings of the Tahsildar in the present report differs from the earlier view taken at the time of preliminary enquiry. The RDO further indicates that the Superintendent of Survey and Land Records, Devikulam had furnished their report stating that the land involved in the nine LA cases have been included in Re-Sy.Nos.165, 166, 167 and 174, which corresponds to old Sy.No.435. On this basis, it is found that there is no reason to proceed with cancellation of pattas, on the ground of change in survey number. That apart, the Tahsildar has reported that the original assignees were in possession of the land. It is in the said background that the RDO had found that the misrepresentation and mistakes of facts alleged in the assignments were irrelevant and further W.P.C.No.20075 of 2007 & conn.cases 27 action was withheld. But the RDO further observed as under: "However, the veracity, legality and correctness of the decision in Re-survey Adalath and certificate issued by Re-survey Superintendent will be got verified by the Deputy Director of Survey and LA, Idukki and further action taken, if found necessary." 24. It is therefore clear that the RDO while passing Ext.P21 order did not consider the opinion expressed by him as a final opinion. He had withheld further proceedings on account of the reports available with him and the two reports by the Tahsildar as well as the Re-survey Superintendent, which was purely based on the opinion expressed in the Adalath.
25. The facts involved in the case would show that the matter was carried in revision by the complainants Sri.Xavier Xavier and Sri.Joseph Xavier. Ext.P2 is the order dated 17/11/2001 passed by the Commissioner of Land Revenue. The Land Revenue Commissioner observed that as part of W.P.C.No.20075 of 2007 & conn.cases 28 the enquiry, the Superintendent of Survey and Land Records and Tahsildar had given reports and there is no irregularity in the same. Since those documents are proof enough to observe that there is no mistake in the survey number of the property assigned, no interference is required.
26. The complainants again filed an original petition before this Court as O.P.No.15924 of 2002 inter alia making a claim in respect of the said properties by stating that they were in actual possession and they alone were entitled for assignment. This Court found that in the decision of the survey Adalath it is observed that Re-Sy.Nos.165, 166/1-1, 166/1-2, 166/1-3, 167/1-5, 167/1-7, 174/1-1 etc. corresponds to old Sy.No.435. On this basis, the Tahsildar has also made a report. In the absence of any challenge to the orders of survey Adalath, this Court did not find it necessary to interfere with the aforesaid orders.
27. Apparently, the issue before the RDO, Land Revenue Commissioner and this Court in O.P.No.15924 of W.P.C.No.20075 of 2007 & conn.cases 29 2002 was whether the land assignment of the aforesaid nine pattas were situated in Sy.No.435 Pt. as seen from the patta documents or is it situated in Sy.No.481/1 and 862. The Government now relies upon another report of the Deputy Director of Survey, Idukki who had opined that these properties are not in Sy.No.435 but in Sy.Nos.481/2 and 862/1. In fact, even the RDO, while passing Ext.P21 order made it clear that the issue relating to the property in regard to change in survey numbers would be re-verified on considering the veracity of the available records. Therefore, we are of the view that Ext.P21 cannot be stated to be a final order in the matter relating to cancellation of patta whereas by Ext.P21, they have only arrived at an opinion based on a set of facts available at that point of time and it was clearly indicated that the veracity, legality and correctness of the re-survey Adalath and certificate issued by the Re-survey Superintendent will be verified by the Deputy Director of survey. In fact, the issue was pending W.P.C.No.20075 of 2007 & conn.cases 30 before the Land Revenue Commissioner as well as this Court and finally this Court decided O.P.No.15924 of 2002 on 03/10/2006. It is thereafter understandably a stop memo was issued to Abad Motels and Resorts Ltd. on 25/04/2007 inter alia calling upon them to stop all construction activities in the property having an extent of 4.3963 hectares in Block No.12 in 167/1-1, 167/2, 167/3 and 174. They were also called upon to produce the original documents with reference to the case when this stop memo came to be challenged in W.P.C.Nos.14847 of 2007 and 15249 of 2007.
28. The learned Advocate General made a submission in the said case that the matter could be disposed of within a short time. The judgment is dated 28/05/2007. It is therefore clear that the proceedings now initiated is pursuant to the stop memo and after a preliminary hearing another notice dated 18/06/2007 is issued which is a continuation of the proceedings relating to the land in question. Now the Government is in possession of further W.P.C.No.20075 of 2007 & conn.cases 31 materials to arrive at the conclusion that the property in possession of the petitioners are situated in Sy.Nos.481/1, 2 and 862. Therefore, it is open for the Government to take suitable action in accordance with the procedure prescribed, if later on it is found on the basis of sufficient materials that the petitioners are in possession of a different item of land other than what was originally assigned. At this juncture, it is relevant to note that the petitioners have a case that there is nothing wrong in the assignment documents viz. the pattas and Sy.Nos.481/1 and 862 were in fact carved out of Sy.No.435 Pt. This is a matter which requires to be enquired into. If, as a matter of fact, the said contention is justifiable, there is no justification in saying that mistake is committed in assigning non-assignable land. Hence, we are of the opinion that the present proceedings cannot be quashed on the ground that the dispute with reference to the land in question have become final by the judgment of this court in O.P.No.15924 of 2002. W.P.C.No.20075 of 2007 & conn.cases 32 29. The next issue is relating to the jurisdiction of the Government in cancelling the patta. In fact, this issue has to be considered in a different perspective. As already indicated, there were disputes regarding the identity of the land for quite some time. Even now, the issue is with reference to the identity of the land only. As far as the land assignment pattas are concerned, to cancel the same the procedure available under Rule 8(3) of the KLA Rules has to be followed which reads as under: "8. Conditions of assignment on registry:- (3) The registry shall be liable to be cancelled for contravention of the provisions in sub-r.(IA) or sub-r.(2). The registry may be cancelled also, if it is found that it was grossly inequitable or was made under a mistake of facts or owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure. In the event of cancellation of the registry, the assignee shall not be entitled to compensation for any improvements he may have W.P.C.No.20075 of 2007 & conn.cases 33 made on the land. The authority competent to order such cancellation shall be the authority which granted the registry, or one superior to it; Provided that no registry of land shall be cancelled without giving the party or parties affected thereby, a reasonable opportunity of being heard. Provided further that no assignment of land shall be cancelled if the annual family income of the transferee occupant does not exceed Rs.10,000/- (Rupees ten thousand only) and who does not own or possess any landed property, anywhere in the State: Provided also that in the case of a transfer of land covered by the above proviso the assignee shall not be eligible for further assignment of land anywhere in the State." 30. The power to cancel the patta is given to the authority which granted assignment or the superior authority. The argument is that the pattas have been cancelled by the Government, which has no role to play in the matter especially in view of the fact that Rule 21(9) has been declared as void by a Division bench judgment of this W.P.C.No.20075 of 2007 & conn.cases 34 court in Karimtharuvi Tea Estates Ltd. case (supra). R.21 (9) of KLA Rules reads as follows: "21. Appeal to lie to Revenue Divisional Officer etc.- (9) The Government may at any time revise, cancel or alter on their own motion or otherwise any decision made or order passed by the Tahsildar, an Officer authorised by the Government under R.23A, Revenue Divisional Officer, District Collector or the Board of Revenue under these rules: Provided that no such decision or order shall be revised, cancelled or altered under this sub-rule without giving the party affected thereby a reasonable opportunity of being heard." In Karimtharuvi Tea Estates Ltd. case (supra) this court held as follows: "8. Clauses (a) to (q) in S.7(l) are not illustrative or enumerative. They would have been so, if S. 7(1) had illustrated in Clauses (a) to (q) without prejudice to the generality of the rule making power. Under Clauses (a) to (q), the Legislature has specified the purposes for which rules can be framed. Under Clause (n) of S. 7(1), the W.P.C.No.20075 of 2007 & conn.cases 35 Legislature clearly laid down that the rules can provide for revision by the Board of Revenue. The only question is whether clause (q) shows the legislative intent otherwise and whether that clause confers power on the rule making authority to provide another revision before the Government in addition to the power of revision by the Board of Revenue under clause (n). When clause (n) of S. 7(1) clearly provides the remedy of revision before the Board of Revenue, it is difficult to hold that clause (q) can be read in such a manner as to enable the rule making authority to confer the same power again on the Government `Specific' excludes general - is the well accepted principle." Further it is held as under: "15. From the Legislative history, it is amply clear that the power of revision was conferred on the Government whenever the Legislature intended so and that the power of revision was not vested at all times in the Government in the past.
16. We are, therefore, of the view that clause (q) of S.7(l) cannot be so interpreted as to empower W.P.C.No.20075 of 2007 & conn.cases 36 the rule making authority to confer power of revision on the Government. Since power of revision is specified under clause (n), it must be held that sub-r. (9) sof R. 21, purportedly framed in exercise of the power under clause (q) of S. 7 (1) is void and unenforceable." 31. Reference is also made to another Division Bench judgment in Maria Elizabeth Gomez v. State of Kerala [1971 KHC373, wherein it is held that the Government becomes the superior authority within the meaning of Rule 8(3). Another judgment relied upon is N.Raman Pillai v. State of Kerala and Others [1976 KLT SN54. It is held that by introduction of Rule 21(9), the Government becomes the superior authority coming under Rule 8(3). It is therefore argued that when Rule 21(9) is struck off by a Division Bench judgment of this Court, Government ceases to be the superior authority. On this basis, it is argued that the Government has no power to cancel the pattas by exercising the power under Rule 8(3). W.P.C.No.20075 of 2007 & conn.cases 37 32. On the other hand, the learned Government Pleader would submit that as per Rule 21 of the KLA Rules, the appellate powers are clearly defined under Rule 21(1) to 21(7). Since the original jurisdiction is exercised by the RDO, the Land Revenue Commissioner was exercising the appellate jurisdiction. Therefore, revisional power above the appellate powers of the Land Revenue Commissioner lies with the Government. Only in instances where Land Revenue Commissioner exercises the power of revision, a further revision does not exist with the Government. Therefore the judgments relied upon by the learned counsel for the petitioners have no application. That apart, it is contended that as per Rule 23A of the KLA Rules, the Government is entitled to exercise the powers and functions which may be exercised and performed by a Tahsildar under the Rules. It is argued that as evident from Exts.P31 and P34 notices, the Revenue Secretary was specially authorised to hear the entire issue by the Government. Hence the W.P.C.No.20075 of 2007 & conn.cases 38 power conferred under Rule 23A was exercised by the Government and therefore the contentions urged by the petitioners are not sustainable. Section 7 of the KLA Act relates to the rule making power of the Government. Section 7(1)(n) and (q) reads as under: "7. Power to make rules.- (1) The Government may make rules.- ....... (n) providing for revision by the Board of Revenue of any order passed by the prescribed authority, and prescribing the time within which such revisional power may be exercised; ............. (q) generally for carrying out the purpose of this Act." 33. Rule 8 of the KLA Rules relates to the conditions of assignment on registry and Rule 8(3) relates to the procedure for cancellation of the registry. As per Section 5 of the KLA Act, assignment has to be made by the prescribed authority. The prescribed authority under the Rules is the Tahsildar. Rule 21 provides for the procedure W.P.C.No.20075 of 2007 & conn.cases 39 for filing appeal. Against an order passed by the RDO the appeal shall lie to the District Collector. There is no second appeal. As per Rule 21(8) the Board of Revenue shall be competent to revise, cancel or alter on its own motion or otherwise any decision made or order passed by the Tahsildar, Revenue Divisional Officer or District Collector.
34. As far as Rule 23A is concerned, of course the Government has the power to authorise any person to exercise and perform the powers and functions of Tahsildar under the Rules, but in the absence of any such material indicating an authority given to the Revenue Secretary, it cannot be contended that the Principal Secretary (Revenue) is exercising the power conferred by the Government under Rule 23A. The impugned order apparently is an order passed by the Government through the Principal Secretary. The question is whether any such powers are vested with the Government. W.P.C.No.20075 of 2007 & conn.cases 40 35. In the case on hand, two issues are dealt with together. One issue relates to the allegation of illegal occupation of lands by the petitioners. In other words, the contention of the Government is that the petitioners are in occupation of lands in old Sy.Nos.481/1 and 862 which are not assignable lands. The pattas which are the subject matter of these cases, has been issued to various persons showing the lands in Sy.No.435 pt. Therefore, the point to be answered is the occupation of the petitioners in the unassignable lands without any valid documents. The next issue is regarding cancellation of the pattas issued in favour of nine persons on the allegation that they were not in possession of these lands and were not cultivating the same and the pattas are fraudulently issued. As far as cancellation is concerned, Rule 8(3) squarely applies and the procedure pursuant to Rule 8(3) alone has to be complied with. In fact, nothing prevents the Government from authorising any other officer to conduct an enquiry under W.P.C.No.20075 of 2007 & conn.cases 41 Rule 8(3) in terms of Rule 23A. As far as illegal occupation of Government lands are concerned, which comes under Sy.Nos.482/1 and 862, lands in possession of the petitioners are liable to be taken back by resorting to the provisions of Kerala Land Conservancy Act, if the occupation of the petitioners are found to be illegal and not in the lands which are alloted as per the pattas issued. A reference to the Kerala Land Conservancy Act, 1957 at this stage will be useful. The said Act permits the Government to take back land which is the property of the Government if it is in unauthorised occupation of any person. Power is vested on the District Collector or such officer as may be authorised under Section 15 to take such proceedings. Section 16(5) gives power to the Government either suo motu or on application to revise any order passed by the Board of Revenue on appeal. Therefore when it comes to the question of taking proceedings under the Land Conservancy Act, definitely the Government has the power to exercise the W.P.C.No.20075 of 2007 & conn.cases 42 suo motu power of revision. Such being the statutory provisions, it is for the Government to decide as to which power they should invoke in order to take proceedings against the petitioners. It is either under the KLA Act or the Kerala Land Conservancy Act depending upon the facts of each case. As matters stand now, Ext.P37 order is passed by the Government without referring to any statutory provisions. It is indicated that the order passed by the RDO (Ext.P21) as confirmed by the Land Revenue Commissioner (Ext.P22) is reviewed and the patta issued in favour nine persons were cancelled. The constructions made were found to be in violation of the stop memo and were directed to be removed. When the Government exercises its sovereign power, it should be traced out to a particular statute especially when summary proceedings are taken for cancellation of pattas or for evicting a person from the illegal possession of Government property. By Ext. P31 notice the petitioners were called for a hearing in the matter connected W.P.C.No.20075 of 2007 & conn.cases 43 with W.P.C.No.15249/2007 and 14847/2007. By Ext. P34 notice the petitioners were called for a hearing in the matter connected with W.P.C.No.15249/2007 and 14847/2007 for examining the documents, procedural irregularities and factual errors in the documents leading to the pattayams, as required under Rule 8(3) of the KLA Rules. Apparently the Government has invoked the power under Rule 8(3) of the KLA Rules. Whether the Government is the Superior authority in terms of Rule 8(3) is the only question. In Maria Elizabeth Gomez (supra), it is held that the Government becomes the superior authority within the meaning of Rule 8(3). In N.Raman Pillai (supra) also it is held that by introduction of Rule 21(9), the Government becomes the superior authority coming under Rule 8(3). But in Karimtharuvi Tea Estates Ltd. case (supra) Rule 21(9) is struck off by a Division Bench judgment of this Court. Therefore it may not be possible for the Government to trace their power of revision from Rule 21(9) of KLA Rules. As far W.P.C.No.20075 of 2007 & conn.cases 44 as power of review is also concerned, unless the statute specifically confers such power on the Government, exercise of such power will be bad in law. Apparently Rule 8(3) power was not available to the Government. However, it was open for the Government to authorise any officer of the Government including the Principal Secretary to take appropriate proceedings in accordance with the procedure prescribed under Rule 21A of the KLA Rules. But as matters stand now no materials are available to infer such a conferment of power. Hence we are of the view that the Government had no authority to exercise the power under Rule 8(3) of KLA Rules.
36. The next question is relating to the allegation that principles of natural justice has been violated. The facts involved in the case would show that sufficient opportunity was not given to the petitioners to substantiate their defence in the proceedings before the Principal Secretary to Government. It is not disputed that notice has been served W.P.C.No.20075 of 2007 & conn.cases 45 on the petitioners. The only contention raised is that the petitioners were not given sufficient time to defend the proceedings. That apart, the materials relied upon by the Government was not furnished to the petitioners. In fact, as far as the petitioners are concerned, notice was served on the petitioners for hearing on 05/06/2007. This notice is issued pursuant to a direction issued by this Court as per Ext.P30 judgment. As per the notice, the matter was posted for hearing on 05/06/2007 and the notice was dated 04/06/2007. On 05/06/2007, according to the petitioners, nothing happened and later they were served with another notice dated 19/06/2007 for a hearing on 22/6/2007. Ext.P33 is the said notice. According to the petitioner in W.P.C.20075/2007 another notice dated 18/06/2007 was issued under Rule 8(3) fixing the date of hearing on 22/6/2007 which was delivered at his residence on 22/06/2007. By that time, the petitioner had already proceeded to Thiruvananthapuram for a hearing pursuant to Ext.P33 W.P.C.No.20075 of 2007 & conn.cases 46 notice. However, he submitted the written submission along with list of documents. According to the petitioners, an order is passed on 23/06/2007, the next date of hearing, cancelling the nine pattas. When a party, who is served with notice of eviction, contends that they are in lawful possession, the entire evidence has to be verified and proper findings should be rendered before throwing them out. The facts of the case disclose that hasty steps were taken by the Government and no materials relied upon by the Government were supplied to the petitioners. This, by itself, would amount to violation of principles of natural justice. Hence, we are of the view that the matter requires to be reconsidered by the appropriate authority.
37. It is made clear that before proceeding to take any action to cancel the pattas or eviction of unauthorised occupation of land in possession of the petitioners, sufficient time should be granted to the petitioners and the petitioners should be served with all documents as far as possible which W.P.C.No.20075 of 2007 & conn.cases 47 the Government intends to rely upon to disprove their claim and they should be given a fair opportunity of being heard before finalising the entire proceedings.
38. In fact, the petitioners have also produced certain records in order to indicate that Sy.Nos.481/1 and 862 had been carved out of old Sy.No.465 Pt. This however is a matter to be considered by the appropriate authority based on the documents now relied upon by the petitioners. The learned special Government pleader also relied upon certain documents to indicate the list of assignable lands. But, it is stated that the list is incomplete in so far as the list of unassignable lands for the entire period is not available.
39. The learned counsel for the petitioners have also raised a contention that the Government is under obligation to prepare a list of assignable lands after making necessary enquiry and there is no material to indicate that the property in possession of the petitioners does not come under the list of assignable lands. Since we have decided to remit the W.P.C.No.20075 of 2007 & conn.cases 48 matter back to the Government or the appropriate authorities to decide the issue afresh, we do not intend to express any opinion with reference to the aforesaid factual disputes.
40. Having regard to the aforesaid findings, we are of the view that the writ petitions are only to be allowed as under: Ext.P37 in W.P.C.No.20075 of 2007, Ext.P18 and Ext.P19 in W.P.C.No.20266 of 2007 and Ext.P4 in W.P.C.No.21573 of 2007 are set aside, reserving liberty to the Government or appropriate authorities to take necessary action in accordance with the procedure prescribed in the light of the observations made above. (MANJULA CHELLUR, CHIEF JUSTICE) (A.M.SHAFFIQUE, JUDGE) jsr W.P.C.No.20075 of 2007 & conn.cases 49 W.P.C.No.20075 of 2007 & conn.cases 50 W.P.C.No.20075 of 2007 & conn.cases 51