H. ZUHARABI v. THE AZHIYUR GRAMA PANCHAYATH

W.P.C.No.26977/06 - 5 -property. But on 19.4.1989 due to political and other reasons theExecutive Officer of the Panchayat, the Village Officer, the VicePresident of the Panchayat and a few others came over to theproperty and threatened that they will forcefully take possession ofthe property after demolishing the residential house and afterdestroying the other improvements. The enquiry revealed that thePanchayat has on 17.1.1989 taken a decision to resume the landfrom the possession of the petitioner. The petitioner approached thiscourt and filed O.P.No.3721 of 1989. That O.P. was disposed of bythis court with a direction that the petitioner will not be evicted fromthe disputed property other than by resorting to the provisions of theLand Conservancy Act. Subsequently the 6th respondent initiatedproceedings and Ext.P13 is the copy of the written statementsubmitted by the petitioner. The 6th respondent without consideringthe objections of the petitioner passed Ext.P14 order directingeviction of the petitioner invoking Kerala Panchayats (Removal ofEncroachment and Possession and Recovery of Penalities forUnauthorised Occupation) Rules, 1964. Against Ext.P14 order of the6th respondent the petitioner preferred Ext.P15 appeal before theR.D.O. The R.D.O. disposed of the appeal by passing Ext.P16 order.The petitioner submits that Ext.P15 appeal was allowed in part to the W.P.C.No.26977/06 - 6 -extent the R.D.O. directed that 45 cents of land as well as residentialbuilding of the petitioner shall not be evicted and the Panchayat wasdirected to take a fair decision regarding the assignment of 45 centsof land upon which the residential building is situated. The appealhowever was dismissed regarding the balance extent of one acre.Against Ext.P16 the petitioner preferred Ext.P17 appeal before theDistrict Collector who dismissed Ext.P17 appeal by Ext.P18 orderdated 25.9.1996. Against Ext.P18 the petitioner approached thiscourt filing O.P.No.16245 of 1996. This court disposed of the OriginalPetition directing the petitioner to file revision before the Board ofRevenue. Accordingly, the petitioner submitted Ext.P19 revisionbefore the Board of Revenue. The Board of Revenue dismissedExt.P19 by its order dated 15.4.1997. Complaining that the order ofthe Board of Revenue was in violation of the principles of naturaljustice the petitioner filed O.P.No.7688 of 1997 before this court. Thiscourt set aside the order passed by the Board of Revenue anddirected the third respondent-revisional authority to reconsider thematter. Ext.P20 is copy of the judgment of this court in O.P.No.7688of 1997. The petitioner submits that the third respondent consideredthe revision petition correctly and passed Ext.P21 order after holdingthat the principles of promissory estoppel applied in the case and W.P.C.No.26977/06 - 7 -that the petitioner was not liable to vacates. Against Ext.P21 orderthe first respondent-Panchayat approached this court by filingO.P.No.34548 of 2000. This court by judgment dated 21.10.2005directed the Panchayat to approach the Government. The petitionercomplains that the Panchayat did not serve copy of the revisionpetition filed by them before the Government to the petitioner. Butthe Government issued notice proposing to convene a meeting forhearing on 2.6.2006. On that day the petitioner entered appearancebefore the Government and submitted Ext.P22 argument notes.Ext.P23 is the copy of the order dated 20.9.2006 passed by theAdditional Secretary to Government pursuant to the hearing. Ext.P24produced is copy of the application for assignment submitted by thepetitioner before the 6th respondent pursuant to the thirdrespondent's directions. Impugning Ext.P23 on various grounds, thepetitioner prays that Ext.P23 be quashed and the respondents bedirected to dispose of Ext.P24 at the earliest.3. The 1st respondent-Panchayat has filed a detailed counteraffidavit. The claim of the petitioner that she is in possession of theproperty on the strength of Exts.P2 and P3 is refuted. It is contendedthat after obtaining ownership of the property actually covered bythose two documents in 1966 the petitioner and her husband with W.P.C.No.26977/06 - 8 -some motive forcibly and illegally occupied one acre and 45 cents ofpuramboke land belonging to the Government “which was latervested with the Panchayat for administrative purposes.” Immediatelyon getting information regarding the trespass, the proceedings underreference VII 21778/67 were initiated and the District Collector foundafter a due enquiry that the petitioner and her husband hadtrespassed upon puramboke land extending to one acre and 45 centsand by the order dated 22.5.1968 ordered eviction. Though Dr.Salimfiled a revision before the Board of Revenue against the DistrictCollector's order, during the pendency of that, he and his wife, thepetitioner approached the Panchayat with a request to allow them tocontinue in possession. The Panchayat decided to lease the propertyto the petitioner and her husband upto 1971-72 and also to requestthe Government to assign the property to the petitioner subject tothe condition that the revision filed by Dr.Salim is withdrawn by him.Dr.Salim withdrew the revision. The Panchayat on receiving leaseamount regulalrised the lease upto the year 1971-72 and as perExt.P9 recommended for assignment through the Director ofPanchayat. The claim of the petitioner and her husband that theyhave been regularly paying lease amount to the Panchayat is denied.It is pointed out that taking up the stand that they are not liable to be W.P.C.No.26977/06 - 9 -treated as lessees and that they are entitled for purchase certificate,they were unwilling to pay lease amount though later they remittedamounts till 1987-88. While so the petitioner filed O.P.No.3721 of1989 contending that she is being forcibly evicted unauthorisedly.The Original Petition was filed when steps were taken by thePanchayat for evicting the petitioner who had refused to seek renewalof lease after 1987-88. This court disposed of by that O.P. by Ext.R1(A) judgment observing that the petitioner will not be evicted otherthan through the provisions of the Land Conservancy Act. It waspursuant to Ext.R1(A) that the Tahsildar passed Ext.P14 orderdirecting the petitioner to surrender possession of the purambokeland trespassed upon. The plea of promissory estoppel raised by thepetitioner is unsustainable since the property is admittedlypuramboke land and this court in Ext.R1(A) judgment has made itclear that the petitioner can be evicted according to the provisions ofthe Land Conservancy Act. The land belongs to the Government andthe Panchayat has no authority to assign the land to anybody. ThePanchayat has not committed breach of any promise. The resolutionof the Panchayat was that lease for three years will be given andrequest will be made to the Government for assignment. ThePanchayat gave lease for more than three years and kept its promise W.P.C.No.26977/06 - 10 -for requesting the Government for assignment. It is the Governmentwhich is not prepared to give assignment to the petitioner. TheGovernment had not given any promise to the petitioner. TheGovernment has sanctioned a primary health centre to the Panchayatwhich is decided to be accommodated on this puramboke land. Thesaid decision cannot be implemented so far, due to the resistance ofthe petitioner and her husband. It is then pointed out that against theorder passed by the District Collector exempting 45 cents in favour ofthe petitioner, the Panchayat had also filed a revision before theBoard of Revenue. But that revision was never taken by the Board ofRevenue. It is contended that even the grant of 45 cents to thepetitioner is incorrect.4. On behalf of the third respondent, the Deputy Collector (LR),Collectorate, Kozhikode has filed a detailed counter affidavit justifyingExt.P23. It is stated therein that while the revision petition waspending before the Board of Revenue against the order of the DistrictCollector confirming the order of eviction of the petitioner the landwas transferred to the 1st respondent on 22.9.1968 under theprovisions of the Kerala Panchayats Act, 1960 and that the Presidentof the Panchayat had even written to the Board of Revenue that theland in question is Panchayat land and therefore the Land W.P.C.No.26977/06 - 11 -Conservancy Act is not applicable. It is stated that the Panchayat didpass a resolution in 1971 to lease out 1.45 acres of land inR.S.No.28/1 to the petitioner's husband for the three year periodfrom 1968-69 to 1971-72 and request the Government to allowassignment with effect from 1.4.1972 on condition that the partywithdrew the case filed before the Board of Revenue. It wasaccordingly that the Board of Revenue dropped all action on therevision petition filed by the petitioner's husband. But in 1982 thePanchayat passed another resolution that the land need not beassigned to the petitioner since the same may result in deduction ofthe Panchayat income and to lease out the land as in the previousyears. Later on 17.1.1989 the Panchayat passed a third resolution toresume one acre of land out of 1.45 acres which is proposed to betransferred to the Government for the construction of Primary HealthCentre. Thereafter the Panchayat initiated eviction proceedingsagainst the petitioner and this court in O.P.No.3721 of 1989 orderedthat the Panchayat cannot evict the petitioner and take possession ofthe property by force without resorting to the provisions under theLand Conservancy Act. The Tahsildar being the authority under theLand Conservancy Act initiated action under Section 12 of the LandConservancy Act and passed eviction order on 1.4.1993. Against that W.P.C.No.26977/06 - 12 -order the petitioner preferred appeal before the District Collector.That appeal was heard by the R.D.O. who disposed of the appealdirecting the petitioner to vacate one acre of land from out of thetotal extent of 1.45 acres and permitting him to retain 45 cents uponwhich the residential building is situated and which containedimprovements effected by them. Against the order of the R.D.O. thepetitioner preferred revision petition before the District Collector whoupheld the order of the R.D.O. against which as directed by this courtin O.P.No.16243 of 1996 the petitioner preferred second revisionpetition before the Board of Revenue. The Board of Revenuedismissed that revision petition on 15.4.1997. That order waschallenged by the petitioner before this court and this court underExt.P20 judgment in O.P.No.7688 of 1997 directed the Commissionerof Land Revenue to consider the question of promissory estoppel andalso the petitioner's claim for compensation for improvements. TheLand Revenue Commissioner upheld the plea of promissory estoppelin favour of the petitioner. Against the order of the Land RevenueCommissioner, the Panchayat preferred O.P.No.34548 of 2000 beforethis court and this court issued certain directions to the Governmentand Ext.P23 order has been passed by the Government pursuant tothose directions. The counter affidavit points out that the property W.P.C.No.26977/06 - 13 -covered by Exts.P1 and P2 are in R.S.No.27/2B of Azhiyoor Village.But the puramboke land in respect of which eviction now ordered is inR.S.No.28/1. The petitioner and her husband are encroaches on thatland. It was pursuant to the directions of this court through thejudgment in O.P.No.3721/89 (Ext.R1(A)) that Ext.P23 order wasultimately passed by the Government. This court in that judgmenthas ruled that the Panchayat cannot evict the petitioner by force andthat the petitioner is liable to be evicted only by resorting to theprovisions contained under the Land Conservancy Act. Extremebenevolence has been shown by the Government in directingassignment of 45 cents from out of the total extent of 1.45 acres ofland wrongfully possessed by the petitioner and her husband. Thereis no error in survey records. The only error has been on the part ofthe petitioner who possessed the Government puramboke land alongwith her private lands. Coming to the question of value ofimprovements, the Government contends that the land involved ispuramboke land and the improvements made by the petitioner onpuramboke land is illegal. The principle of promissory estoppel has noapplication at all. In fact it is considering the promise which was givento the petitioner's husband by the Panchayat, though the same waswithout authority and taking into account the fact that a portion of W.P.C.No.26977/06 - 14 -the residential building remains put up on those 45 cents that theGovernment directed assignment of 45 cents. That the property inquestion is puramboke can never be disputed. Reference is made toRule 7 of the Kerala Land Conservancy Rules and it is submitted thatpersons having annual family income of more than Rs.30,000/- arenot eligible for getting assignment of puramboke land in the normalcourse. The Government in exercise of its powers to considerassignment of such cases under Rules 24 has passed orders to assigna portion of the land only with the objective of salvaging theportions of the petitioner's residential building. Survery number of theproperty has been verified and identified and it is found that theproperty is in survey No.28/1.5. Mr.K.M.Firoz, Advocate addressed me very elaborately andpersuasively on behalf of the petitioner. Mr.Firoz referred to variousdocuments placed on record particularly Exts.P23, P1, P6, P9, P10,R1(A), P14, P6 and P20. He drew my attention to Sections 16(5) and17(4) of the Land Conservancy Act and also to Section 65 of theKerala Panchayats Act, 1960. Mr.Firoz would rely on the judgment ofthis court in Ellakkal Service Co-operative Bank v. State ofKerala(1997 (2) KLT 85) to submit that since powers conferred on,statutory authorities are expected to be discharged by they W.P.C.No.26977/06 - 15 -themselves, this court will not be justified in deciding the question ofpromissory estoppel in this Writ Petition. The direction in Ext.P21was that the question of promissory estoppel shall be decided by theBoard of Revenue. The Government has not chosen to consider thequestion of promissory estoppel which was the relevant aspect. TheGovernment Order is a cryptic one issued in violation of principles ofnatural justice. If the principles of promissory estoppel as explainedby the Supreme Court in Union of India v. Godfrey Philips IndiaLtd. (AIR 1986 S.C. 806) are correctly applied, it will have to befound that the petitioner and her husband are not liable to be evictedfrom the property at all. The Government is not justified in sayingthat the property had never vested in the Panchayat and that thePanchayat would not have given any promise to assign the propertyto the petitioner. The stand of the Panchayat and the stand of theRevenue Authorities all along was that the property became vestedin the Panchayat. They cannot be permitted to take contrary positionsnow and thereby wriggle out from the solemn promise given to thepetitioner. On the basis of the promise the petitioner had withdrawnfrom the revision filed before the Board of Revenue and therebysuffered detriment. 6. The Additional Advocate General Mr.Venganoor W.P.C.No.26977/06 - 16 -Chandrasekharan Nair would submit that there is no gainsaying thatthe property in question all along was Government Puramboke. Thepetitioner's claim that she has title to the property and that she cameto have ownership and possession over the property by virtue ofExts.P1 and P2 cannot be accepted even for a moment. Schedules ofExts.P1 and P2 mentioned the extent and boundaries of theproperties conveyed to the petitioner very clearly. The survey numberof the property is very clearly mentioned as R.S.No.27/2B while thepuramboke land which is now ordered to be recovered is inR.S.No.28/1. This puramboke never became vested in the Panchayatunder the vesting provision of the Panchayats Act or under thePanchahat Raj Act. The property could not have statutorily vested inthe Panchayat though it is true that for administration purposes theproperty was entrusted with the Panchayat and the Panchayat andthe petitioner came to be under an impression that the property wasvested under the Panchayat. But the property was all alongGovernment property vested with the Government. The principle ofpromissory estoppel cannot operate against the Government becausethe Government has not given any promise to the petitioner. Thiscourt under Ext.R1(A) permitted and directed eviction under theprovisions of the Land Conservancy Act. Ext.R1(A) judgment has W.P.C.No.26977/06 - 17 -attained finality. The petitioner is not entitled now to contend that sheis not liable to be evicted. Under Ext.P21 this court has certainlydirected the Land Revenue Commissioner to consider the question ofpromissory estoppel and the Land Revenue Commissioner who findsthat the principle of promissory estoppel applies. But against Ext.P21order of the Land Revenue Commissioner the Panchayat preferred anappeal to the Government which was directed by this court to beconsidered by the Government and Ext.P23 is the result of suchconsideration. Though Ext.P23 does not in so many words refer topromissory estoppel, the Government has bestowed maximum equityon the petitioner by directing assignment of 45 cents of very valuableproperty to the petitioner.7. Mr.K.Lakshminarayanan, Advocate made submissions onbehalf of the 1st respondent-Panchayat. Learned counsel submittedthat the principle of promissory estoppel cannot be applied againstthe Panchayat. The promise which was given by the Panchayat wasonly to lease out the land for three years and to request theGovernment for assignment. The land was leased out to thepetitioner for more than three years and the Panchayat becameconstrained to initiate action for eviction when the petitioner isrefused to pay lease amount on the ground that the Panchayat had W.P.C.No.26977/06 - 18 -orally agreed to assign the land. There was no agreement by thePanchayat to assign the land to the petitioner since the land waspuramboke lannd. The Panchayat could not have made theassignment. The Panchayat would have only requested theGovernment. The Government was requested. Thus the Panchayatkept both its promises. But the Government in its wisdom was notinclined to allow the request for assignment. The Government hasnow sanctioned a Primary Health Centre upon the disputed land. Thedisputed land is puramboke which is clear from the very applicationsfor assignment submitted by the petitioner. The petitioner's case ofhaving title to the property is inherently unsustainable. It is eminentlyin public interest that the Primary Health Centre be established onthis property. The Government has bestowed unmerited benevolenceupon the petitioner. In fact the Panchayat had preferred a revisionpetition against the order of the R.D.O. permitting the petitioner toretain possession of 45 cents which is now allowed by theGovernment also to be retained by the petitioner. The Board ofRevenue did not pass any orders on the revision petition filed by thePanchayat. 8. I have anxiously considered the rival submissions addressedat the Bar in the light of the materials placed on record and the W.P.C.No.26977/06 - 19 -various statutory provisions to which my attention was drawn by thelearned counsel. It cannot be said that the submission of Mr.Firoz thatExt.P23 order of the Government does not even refer to the principleof promissory estoppel which was actually considered in favour of thepetitioner by the Land Revenue Commissioner pursuant to Ext.P20judgment, is wrong. It would have been ideal, if the Government hadin Ext.P23 referred to that contention also and decided the same inthe light of the reasons stated in the earlier orders passed by theDistrict Collector (Ext.P18) and the R.D.O. (Ext.P16) and by assigningthe reasons which are offered at the Bar by the Additional AdvocateGeneral and the counsel for the Panchayat. But the question beforeme is whether this court should in exercise of extra-ordinaryjurisdiction for judicial review under Article 226 of the Constitution setaside Ext.P23 and remitting the matter back to the Government toenter findings on the question of promissory estoppel. Having regardto the elaborate submissions which were addressed before me andmy survey of the entire materials available on record, I am of theview that it is not necessary. The petitioner's claim to title over theproperty in question which is also seen raised in the Writ Petitioncannot be entertained even for a moment. The recitals in Exts.P1 andP2 including the property description are very clear and do not admit W.P.C.No.26977/06 - 20 -of any ambiguity. The extent, survey numbers and boundaries areshown. It is not indicated at all that the petitioner is in possession ofeven an inch of land in excess of what is mentioned as conveyed.Thus the property which is now ordered to be resumed which is in adifferent survey number is undoubtedly puramboke. The plea ofpromissory estoppel is not available to the petitioner against theGovernment. The petitioner has no case that the Government hadgiven any promise to the petitioner which was acted upon by thepetitioner to her detriment. Perhaps it would appear from thepleadings of the Government in earlier cases that there was someadmission on the part of the revenue authorities that the propertywas transferred to the Panchayat. It is common ground that there isno transfer at all by means of any document. Transfer if at all wouldhave been only by statutory vesting. Having regard to the nature ofthe property the puramboke in question could not have vested in thePanchayat at all. I am therefore inclined to accept the version of theAdditional Advocate General that the property was only entrustedwith the Panchayat for administration purposes and perhaps thePanchayat and the petitioner came to be under a wrong impressionthat the property was Panchayat land. 9. Ext.R1(A) judgment was delivered by this court on a Writ W.P.C.No.26977/06 - 21 -Petition filed by the petitioner. The prominent ground of the petitionerhimself was that he is liable to be evicted only in accordance with theprovisions of the Land Conservancy Act and that the Panchayat is notentitled to evict her. The above ground was accepted by this courtand Ext.R1(A) has attained finality. I do not know how the petitionercan now contend that the property belonged to the Panchayatabsolutely at any point of time. There certainly was a promise by thePanchayat. But the promise was only that the Panchayat will leaseout the property to the petitioner for a period of three years andwould request the Government to assign the property to thepetitioner. As rightly submitted by Mr.Lakshminarayanan thePanchayat complied with those promises. Lease was given for morethan three years and the Government was requested to assign theland. But the Government was not inclined to accept the request. Itshould be noticed that the action for evicting the petitioner from theproperty commenced way back in 1968 and that the petitioner andher husband came to have ownership under adjacent property underExts.P1 and P2 only in 1966. Thus the case of the Panchayat and theGovernment that the petitioner and her husband encroached uponpuramboke land lying adjacent to their own lands is highly probable.The question is whether such persons are entitled for equity. Of W.P.C.No.26977/06 - 22 -course under Ext.P20 judgment this court directed the Land RevenueCommissioner to consider the question of promissory estoppel. Butthis court never directed the Commissioner to grant equitable reliefbased on promissory estoppel principle in respect of the entire extentof 1.45 acres wrongfully possessed by the petitioner. The DistrictCollector under Ext.P18 and the Government under the impugnedorder has directed assignment of 45 cents of land which takes inportions of the residential building put up by the petitioner in 1968 orso (immediately after the trespass). The above directions have beengiven obviously on equitable considerations and perhaps consideringthat everybody at some point of time was under the impression thatthe property belonged to the Panchayat. 10. Even though ground has been raised by the writ petitionerthat there are valuable improvements in the area now ordered to beresumed, there is no material placed on record to show that there areany improvements over the said area. Improvements if at all wereeffected on the 45 cents which is now ordered to be assigned to thepetitioner. I do not think that this court will be justified in interferingwith Ext.P23 invoking the extra-ordinary jurisdiction under Article 226upholding the technical contention that the Government has notconsidered the question of promissory estoppel. Even beyond the W.P.C.No.26977/06 - 23 -extent permissible, all equities have been considered and conferredon the petitioner. The challenge against Ext.P23 fails.11. The result of the above discussion is that the Writ Petitionfails. Ext.P23 is upheld. However there will be a direction thatregarding realisation of the market value of 45 cents of purambokeland permitted to be retained by the petitioner under Ext.P23, therespondents will determine the market value as on 11.2.1972 thedate on which the revision petition filed by the petitioner's husbandwas dismissed by the Board of Revenue as withdrawn provided thepetitioner files an affidavit before this court within two weeks ofgetting copy of this judgment undertaking to surrender the landwithin another two weeks thereafter without raising any furtherclaims on account of value of improvements or otherwise. It is alsoclarified that the petitioner will be liable to pay the market value forthe land only and not for the building or building portions standing onthe aforesaid 45 cents. The Writ Petition will stand dismissed subject to the aboveobservations, but in the circumstances, without any order as to costs.srdPIUS C.KURIAKOSE, JUDGE