IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4131    OF 2008 (Arising out of S.L.P. (C) No.11396/2006)

   State of Kerala & Ors.    ...Appellants

Versus

   Vincy Cherian & Ors.     ...Respondents

O  R  D  E  R

Leave granted.

This appeal is directed against the judgment and order dated

3.3.2006 passed by a Division bench of the Kerala High Court in W.A. No.2090 of

2004 whereby and whereunder the application filed by the respondents herein for

'Registry of land' in terms of the provisions of Cardamom Rules(Travancore), 1935

was directed to be considered afresh by the competent authority under the said rules.

We may notice only the basic fact of the matter.

One  Mr.Quseph  Varkey  was  the  grandfather   of  the

respondents  herein.  He allegedly came in possession of  99 acres of  land in village

Devikulam Taluk of Kerala State. Indisputably, the lands in question were within the

jurisdiction of  the Travancore State.  The then Travancore State in  exercise  of  its

power  conferred  upon  it  under  Section  7  of  the  Travancore  Land  Assignment

Regulation III of 1097(Malayalam Era)  framed Rules known as Cardamom Rules

(Travancore), 1935  in terms whereof the Rules framed earlier in the year 1905 were

superceded.

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Quseph Varkey applied for assignment on registry in respect of

50 acres of land in the year 1935.

He filed another application in the year 1936 for 'assignment on

registry' additional area of 46 acres of land as the total area was found to be 99 acres.

However, there is dispute as to whether the total area is 96 acres

or 99.42 acres.

The second application was rejected by an order dated 16.1.38.

He  preferred  an  appeal  thereagainst  in  terms  of  Rule  38  of  Cardamom  Rules

(Travancore), 1935.

By an order dated 19.6.1939 the appellate authority directed as

under:

"  I  have  heard  the  vakil.  The  main contentions  are  that  his original application for the land within certain boundaries and estimated at 50 acres and when in actual survey it was found that there was more land than that applied for, he put in a second application for 46 acres with the deposit and that as these are all the land he had applied for, the land may be given to him. As there has been no other applicant for the excess land, I am of opinion that the excess 49 acres over and above the 50 acres may be given to the applicant steps may be taken towards the disposal of his application accordingly. The appeal is allowed."

It, however, appears that so far as his applications for grant of

consignment on registry in respect of 50 acres of lands are concerned, the Tehsildar

by an order dated 3.11.1114( 1947 A.D.) directed as under:

" Since the land is available for registry without auction and since he has expressed willingness to take up land on registry and has put in formal application for the same, the L.C. Case is struck off the file and steps will be taken to bring the area under registry."

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Allegedly, in the year 1946 the said Ouseph Varkey was granted lease for a

period of 12 years of 20 acres of land. He was furthermore granted  lease for one year

in respect of 39.46 acres of land. We may, however, notice that the said contetions

have been raised before us by the parties hereto.

Ouseph Varkey died in the year 1956. The Kerala Land Assignment Act,

1960(1960 Act) was enacted by the Legislature

of the State. The said Act came into force with effect from 13.11.1960. Indisputably,

by reason of the provisions thereof no absolute assignment was permitted.

Our attention, however, has been drawn to Section 9(3)  of the 1960 Act

whereby the Travancore Act and the corresponding Cochin Act stood repealed as also

the Rules frame thereunder.

Mr.Krishnamoorthy,  learned  senior  counsel  appearing  on  behalf  of  the

appellants would submit that having regard to the provisions of the  1960 Act  and the

Rules framed thereunder vis-a-vis the 1945 Rules , the High Court must be held to

have committed a serious error in issuing the impugned directions.

Elaborating his submissions,learned counsel would urge that even in terms

of the order passed by the appellate authority as also the Tehsildar as contained in

Annexure R-6 and Annexure R-7,  steps were required to be taken for disposal  of

Ouseph Varkay's applications for assignment which were filed in the years 1935 and

1936. It was submitted that the said applications abated with the death of Ouseph

Varkay and in any event no step having taken in terms of the said order(s) resulting

in crystallisation of any right in his favour, the question of applicability of 1935 Rules

at this stage would not arise.

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Mr.B.V.Deepak, learned counsel appearing on behalf of the respondents,

on the other hand, supported the impugned judgment.

Having considered the rival  contentions raised before us,  we are of  the

opinion that the Division Bench of the High  

Court unfortunately had no occasion to go into the contentions raised before us. The

question  as  to  whether,  despite  coming into  force  of  the  1960 Act  and  the  Rules

framed thereunder, the 1935 Rules survived and/or in any event the effect thereof

appears  to have  not  been raised  before  the  High  Court.  The  effect  of  the  orders

passed by the Tehsildar as also the Appellate Authority on Ouseph Varkay's  

applications for assignment of 50 acres of land and subsequently for 46 acres of land

have not been considered by the Division Bench.

Our attention has  been drawn to the provisions  of  1935 Rules.  Several

steps in terms thereof are required to be taken in furtherance of the orders of the

statutory authority. The question as to whether steps in terms of the Rules have been

taken or not fructifying into an enforceable right in favour of Ouseph Varkay have

not been considered by the Division Bench.

It is in the aforementioned situation, in our opinion, the Division Bench

should consider the said contentions of the parties as regards the applicability of 1935

Rules afresh. It would be open to the parties to file additional documents before the

Division Bench for showing that steps had been taken by the respondents in terms of

1935 Rules for grant of assignment or not. The Division Bench would also consider as

to  the  effect  of  the  provisions  of  Sub-section  3  of  Section  9  of  the  Kerala  Land

Assignment Act, 1960.

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We, therefore, set aside the impugned judgment and remit the matter back

to the Division Bench of the High Court for consideration of the matter afresh. We

make it clear that  

all  contentions  of  the  parties  shall  remain  open.   We expect  that  the  State  shall

produce the records before the High Court.

The appeal is allowed. No costs.

......................J.       [S.B. SINHA]

......................J.       [LOKESHWAR SINGH PANTA]

New Delhi, May 13, 2008.

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