Imposing New Conditions on the Assigned Land: Retrospective Nature ?

Imposing New Conditions on the Assigned Land: Retrospective Nature

Sherry J Thomas 

The assignment of government land in Kerala is governed by the Kerala Government Land Assignment Act, 1960 and the rules framed thereunder, such as the Kerala Land Assignment Rules, 1964, etc.

The assignment of government land is done after complying with due procedure as per Section 4 of the Kerala Government Land Assignment Act, 1960. When any government land is proposed to be assigned by the prescribed authority, otherwise than by way of lease or license, the Tahsildar of the taluk in which the land is situated, or any officer empowered by the government, shall notify in the prescribed manner that such land will, by public auction or otherwise, be assigned and call upon those who have got any claim to such land to prefer their objections, if any, in writing within a time specified in such notification.

It is also evident by going through Section 8 of the Act that assignment is to take effect with restrictions, conditions, etc., according to their tenor.

It is also specifically mentioned in the provision that all the restrictions, conditions, and limitations contained in any patta or other document evidencing the assignment of government land, or of any interest therein, shall be valid and take effect according to their tenor, notwithstanding any law for the time being in force, or any custom or contract to the contrary.  Rule 8 of the Kerala Land Assignment Rules, 1964 contains the conditions of assignment on registry. Lands granted on registry shall be heritable and alienable.

Key Legal Principles

It is a settled principle that the conditions of assignment, where in statutory rules framed under the Act, have the force of law.

Conditions stipulated in a patta by an executive authority cannot override or abridge specific rights, such as alienability, conferred by these statutory rules.

It is also reported that judicial pronouncements have consistently held that the amendments to land assignment rules—such as the 2009 Amendment to Rule 18 of the Kerala Land Assignment Rules, 1984, which increased the non-alienation period are not retrospective.

 

These amendments apply only to pattas issued after the date the amendment came into force.

Assignments granted prior to such amendments are governed by the rules and conditions in force at the time of original issuance.

Judicial Precedents

A Division Bench of the High Court of Kerala, in Travancore Rayons Limited v. Kerala State Pollution Control Board (2001 (1) KLT 175), after referring to various decisions of the Apex Court, reiterated that:

 It is a cardinal principle of construction that every statute is prima facie prospective, unless it is expressly or by necessary implication made to have retrospective operation.

 

But the rule in general is applicable where the object of the statute is to affect vested rights, to impose new burdens, or to impair existing obligations.

Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only, not retrospective in its operation.

The question of the retrospective effect of amendments to regulations on assignment has been considered in detail by this Honorable Court on several occasions, especially on the precedent laid down in Bhaskaran P.R. v. State of Kerala and Others (2010 KHC 6210), which describes the positions held by the Supreme Court on various decisions regarding the retrospective nature of an amendment.