Infringes Constitutional Rights Of Tribal People: Kerala HC Quashes GO Allotting Agricultural Land To Encroaching Church 'In Public Interest'

The petitioners are social workers from the landless tribal community in Wayanad district and have approached the Court seeking direction to the government for facilitating the allocation of residential and agricultural lands to tribal families of Wayanad.

They also alleged that the government assigned land 5.5358 hectares of land was transferred by government order to the 'Kallodi St.George Forane Church' for a meager amount of Rs 100 per acre illegally and against statutory provisions when hundreds of landless tribal people were waiting for agricultural and residential plots.

A single bench of Justice P.V.Kunhikrishnan stated that the Kerala Land Assignment Act and Rules were not intended for enriching persons who hold extensive lands under the guise of encroachment. It thus found that the assignment of land to the Church was unsustainable and that there was no public interest involved in it. The Court held:

“Assignment on the Registry of Government lands to such persons would defeat the very purpose of the Act and Rules. There is no vested right in any person to claim assignment on the registry of Government land. Encroaching on the government land and making illegal constructions on it will not give any vested right to encroachers. The government land should be allotted to the downtrodden and not to the wealthy and mighty people.”

The Court stated that about 20 percent population in the Wayanad district consists of tribal communities. It stated that several tribal people were waiting to get lands for residential and agricultural purposes and that the State has to ensure that all tribals are happy and a beautiful smile continues on their face forever.

Background

The petitioners alleged social exclusion and a high degree of deprivation faced by the tribal community despite government initiatives. It was argued that around 32 tribal starvation deaths took place in 2001, pursuant to which the government agreed to a seven-point agreement.

It was submitted that based on the agreement, tribals were promised lands, implementation of a five-year livelihood program, enactment of a new statute to prevent alienation of lands, a master plan for tribal development, and that about 10,000 acres would be found and distributed in Wayanad.

The petitioners further stated that a government circular was also issued in 2001 to prevent the assignment of land in favor of persons/ associations that did not involve public interest.

Respondents contended that the land in possession of the Kallodi St.George Forane Church had been used to build educational institutions, school playgrounds, buildings for church, cemetery, etc., and that the land had been in their possession since 1955.

Relying upon Kerala Land Assignment Rules 1964, it was stated that lands were assigned to the church only after setting apart other similar unoccupied areas for the members of the SC/ST community. They claimed that no encroachment has been done on lands set apart for the SC/ST community.

It was argued that the impugned land was initially given to the church on lease and the same was assigned on registry by following the existing rules under the powers of the state government.

The Court found that the church was an encroacher of 5.5358 hectares of land till it was assigned the same based on the government order granting pattayam.

It found that the land was being assigned at a meagre amount which was much less than the market price of the land. It thus noted that the intervention of the Court was necessary since the assignment of land was unsustainable.

Relying upon Rule 24 of the Kerala Land Assignment Rules, it noted that the government can assign land in the public interest subject to fulfilling other rules and conditions.

“What is the "public interest" in this case…..After encroachment on land, if churches or schools or other buildings are constructed on the Government's land, can the Government assign the land based on "public interest"?”, enquired the Court.

It then referred to Rule 7 of the Kerala Land Assignment Rules to state that land had to be assigned on a priority basis and stated that the assignment of land to the Church was not a priority. It noted that even though the land was encroached on as early as 1971, it can only be assigned if the encroachment was not considered objectionable.

In the facts of the case, the Court concluded that going by Rule 7, the Church was encroaching upon government land and that there was no public interest involved. “Simply because some educational institutions and religious institutions or cemetery are constructed after the encroachment, the land cannot be assigned stating "public interest" added the Court.

The court stated that it can interfere in the assignment of lands by invoking its writ jurisdiction to prevent injustice, arbitrariness, and flagrant violation of the law.

“Poor landless tribals are agitating to get lands for their livelihood and agriculture. …Thousands of applications of tribals are pending for getting land is the contention of the petitioners. In such a situation, as per Ext.P5, huge Government land is assigned to the 5th respondent invoking the powers of the Land Assignment Act and Rules. I am of the considered opinion that this is not only illegal but infringes the constitutional rights of the tribals including the petitioners.This Court cannot shut its eyes to these illegalities”, it observed.

It thus quashed the orders assigning the land to the Church and stated that if they were interested in buying the land, the government could consider selling it on the market value as of today assessed by the competent authorities.

It stated that such collected amounts by the government shall be used for the welfare of tribal communities in Wayanad, Further, it stated that if the Church was buying the land at market price, then they shall be evicted from the property within six months after giving the option to purchase the land based on market value. It also stated that the land recovered shall be distributed to the eligible persons under law.

Accordingly, the Court disposed of the writ petition and directed the government to file an action taken report before the Registrar General after complying with the orders above.

Counsel for Petitioners: Advocate Sajith Kumar V, P K Antony

Counsel for Respondents: Government Pleader Ashwin Sethumadhavan, Advocate G Sreekumar (Chelur)

Citation: 2024 LiveLaw (Ker) 133

Case title: WP(C) NO. 20705 OF 2015

Case number: K Mohandas v State of Kerala

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