Kerala High Court
Kottayam District Koottu Krishi vs Stateof Kerala on 11 September, 2015
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 11TH DAY OF SEPTEMBER 2015/20TH BHADRA, 1937
WP(C).No. 27655 of 2007 (P)
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PETITIONERS:
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1. KOTTAYAM DISTRICT KOOTTU KRISHI
KARSHAKASANGAM(REG. NO.150/71), REPRESENTED BY ITS
SECRETARY, A.O.MATHEW, AGED 75 YRS
S/O.LATE OUSEPH, ARTHANAKUNNEL HOUSE, VALLICHIRA
POST, KOTTAYAM DISTRICT.
2. SEBASTIAN, S/O.CHACKO,
AGED 71 YEARS,
EDAKKATTU HOUSE, KOOTKKAL PO,
MUNDAKAYAM.
3. NARAYANAN, S/O.KOCHUKOCHU,
AGED 71 YEARS, VADAKKEKKARA HOUSE
POONJAR, THEKKEKKARA P.O.
4. MATHEW, S/O.JOSEPH, EDAKKATTU HOUSE,
PALAPRA P.O., MUNDAKAYAM.
5. THANKAMMA, W/O GOPALAN,AGED 64 YEARS,
VADAKKEKKARA HOUSE, POONJAR, THEKKEKKARA P.O.
6. JOSEPH KURUVILLA, S/O.KURUVILLA, AGED 66 YEARS.
NEERANAKKUNNEL HOUSE, CHIRAKKADAVU, PONKUNNAM.
7. JANARDHANAN, S/O.NARAYANAN, AGED 51 YEARS,
VADAKKEKARA HOUSE, MANNAM MURI
POONJAR THEKKEKKARA VILLAGE.
8. JOSEPH, S/O.THOMAS,
AGED 58 YEARS, THEKKEL HOUSE, KANAYANKAVAYAL P.O.
9. DOMINIC, S/O.MATHAI, AGED 61 YEARS,
KAIPANANIKKAL HOUSE, THAMBALAKKATTU MURI
KANJIRAPPALLY P.O.
10. GEORGE, S/O.SCARIA, AGED 45 YEARS,
KAIPANANIKKAL HOUSE, POONJAR, THEKKEKARA VILLAGE.
11. MATHAI, S/O THOMMEN,
CHARALAYIL HOUSE, POOVARANI P.O.
BY ADVS.SRI.P.C.THOMAS
SRI.ROJO J.THURUTHIPARA
WP(C).No. 27655 of 2007 (P)
RESPONDENTS:
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1. STATEOF KERALA, REPRESENTED BY
THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE
THIRUVANANTHAPURAM.
2. THE DISTRICT COLLECTOR, IDUKKI.
BY SPL. GOVERNMENT PLEADER SMT.SUSEELA R.BHAT
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-7-2015,
THE COURT ON 11-09-2015, DELIVERED THE FOLLOWING:
APPENDIX IN W.P.(C)No.27655/07
PETITIONER'S EXTS:
EXT.P1: COPY OF SALE DEED NO.3187/71 OF KOTTAYAM SUB REGISTRY OFFICE.
EXT.P2: COPY OF SALE DEED NO.3068/1970 OF KOTTAYAM SUB REGISTRY OFFICE.
EXT.P3: COPY OF GIFT DEED NO.3074/1970 OF KOTTAYAM SUB REGISTRY OFFICE
DT.7/12/1970.
EXT.P4: COPY OF SALE DEED NO.3077/1970 OF KOTTAYAM SUB REGISTRY OFFICE.
EXT.P5: COPY OF SALE DEED NO.3080 OF 1970 OF KOTTAYAM SUB REGISTRY
OFFICE.
EXT.P6: COPY OF SALE DEED NO.3082/1970 OF KOTTAYAM SUB REGISTRY OFFICE.
EXT.P7: COPY OF SALE DEED NO.197 OF 1971 OF KOTTAYAM SUB REGISTRY
OFFICE.
EXT.P8: COPY OF SALE DEED NO.3084 OF 1970 OF KOTTAYAM SUB REGISTRY
OFFICE.
EXT.P9: COPY OF SALE DEED NO.88 OF 1971 OF KOTTAYAM SUB REGISTRY OFFICE.
EXT.P10: COPY OF SALE DEED NO.177 OF 1971 OF KOTTAYAM SUB REGISTRY
OFFICE.
EXT.P11: COPY OF SALE DEED NO.196 OF 1971 OF KOTTAYAM SUB REGISTRY
OFFICE.
EXT.P12: COPY OF SALE DEED NO.3219 OF 1971 OF KOTTAYAM SUB REGISTRY
OFFICE.
EXT.P13: COPY OF PROCEEDINGS OF THE LAND BOARD IN LB(A)2-5227/71
DT.29.3.1974.
EXT.P14: COPY OF LETTER NO.C4 10171/93 DT.21.7.97.
EXT.P15: COPY OF LETTER NO.8495/R2/97/RD DT.4.9.97.
EXT.P16: COPY OF GO(RT)NO.553/98/RD DT.28.1.98.
EXT.P17: COPY OF REPRESENTATION DT.8.8.2000.
EXT.P18: COPY OF JUDGMENT IN OP NO.29673/2001 DT.20.9.06.
EXT.P19: COPY OF GO(RT)NO.4761/06/06/RD DT.30.11.2006.
EXT.P20: COPY OF DEED DT.11.7.1877 (ALSO KNOWN AS POONJAR CONCESSION).
EXT.P21: COPY OF AGREEMENT DT.18.9.1899.
EXT.P22: COPY OF COMMON PRIOR TITLE DEED DT.7.12.1970 BEARING NO.2971/1970
OF KOTTAYAM SRO.
RESPONDENTS' EXT:
EXT.R2(A): COPY OF INTERIM ORDER DT.12.12.2005 IN W.P.(C)No.32000/2005.
TRUE COPY
P.S.TO JUDGE
dsn
ANIL K.NARENDRAN, J.
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W.P.(C)No.27655 of 2007
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Dated this the 11th day of September, 2015
JUDGMENT
The 1st petitioner is stated to be a Society registered under the Societies Registration Act, 1860, with Reg.No. IV/150/1971 of SRO, Kottayam, to promote group farming and to protect the interest and welfare of the agriculturists in Kottayam District, who are its members. The 1st petitioner Society is stated to have purchased 250 acres of land comprised in Sy.No.75/1 and 77/1 of Mankulam Village for cultivation from Sri.Chandra Mohana Menon of Poonjar Kovilakam by Ext.P1 Sale Deed No.3187/1971 dated 27.12.1971 of SRO Kottayam. Similarly the 2nd petitioner, who is stated to be a member of the said Society, along with 8 others stated to have purchased 50 acres of land comprised in the above survey from the very same vendor by Ext.P2 Sale Deed No.3068/1970 dated 17.12.1970 of SRO Kottayam; the 3rd petitioner, who is stated to be a member of the said Society, along with 3 others stated to have purchased 10 acres of land comprised in Ext.P3 Sale Deed No.3074/1970 dated 1712.1970 of SRO Kottayam; the 4th petitioner, who is stated to be a member of the said Society, along with 4 others stated to have W.P.(C).No.27655 of 2007 2 purchased 50 acres of land by Ext.P4 Sale Deed No.3077/1970 dated 17.12.1970 of SRO Kottayam; the husband of the 5th petitioner, who is stated to be a member of the said Society, stated to have purchased 3 acres of land by Ext.P5 Sale Deed No.3080/1970 dated 14.12.1970 of SRO Kottayam; the 6th petitioner, who is stated to be a member of the said Society, along with his wife stated to have purchased 10 acres of land by Ext.P6 Sale Deed No.3082/1970 dated 17.12.1970 of SRO Kottayam; the 6th petitioner, who is stated to be a member of the said Society, along with 9 others stated to have purchased 100 acres of land by Sale Deed No.197/1971 dated 26.1.1971 of SRO Kottayam; the 7th petitioner, who is stated to be a member of the said Society, stated to have purchased 5 acres of land by Ext.P8 Sale Deed No.3084/1970 dated 15.12.1970 of SRO Kottayam; the 8th petitioner, who is stated to be a member of the said Society, along with another stated to have purchased 10 acres of land by Ext.P9 Sale Deed No.88/1971 dated 21.12.1970 of SRO Kottayam; the 9th petitioner, who is stated to be a member of the said Society, along with two others stated to have purchased 50 acres of land by W.P.(C).No.27655 of 2007 3 Ext.P10 Sale Deed No.177/1971 dated 30.12.1971 of SRO Kottayam; the 10th petitioner, who is stated to be a member of the said Society, along with 9 others stated to have purchased 100 acres of land by Ext.P11 Sale Deed No.196/1971 dated 26.1.1971 of SRO Kottayam; the 11th petitioner, who is stated to be a member of the said Society, along with 14 others stated to have purchased 150 acres of land by Ext.P12 Sale Deed No.3219/1971 dated 26.12.1971 of SRO Kottayam.
2. The petitioners would contend that, after the purchase of the properties, they had been cultivating the lands covered by Exts.P1 to P12 sale deeds. While so, in the year 1971, the Kannan Devan Hills (Resumption of Lands) Act, 1971 (hereinafter referred to as 'the Act') was enacted for the resumption of lands, other than plantations in Kannan Devan Hills Village in Kottayam District and for the distribution of such lands for cultivation and purposes ancillary thereto. In Ext.P13 proceedings No.LB(A) 2-5227/71 of the Land Board dated 29.3.1974 it was found that, an extent of 70522.12 acres of land in Kannan Devan Hills Village stands transferred and vested in the Government, under Section 3 of the W.P.(C).No.27655 of 2007 4 Act. During the period 1974-78 there were eviction of encroachers from the land vested in the Government in terms of Ext.P13 order passed by the Land Board. In the year 1978, in connection with the aforesaid eviction proceedings, the petitioners were forcibly evicted from their respective holdings, after destroying their houses and crops, on a mistaken impression that they are also encroachers.
3. The petitioners would contend further that, immediately after their eviction from the lands covered by Exts.P1 to P12 sale deeds, the 1st petitioner Society submitted a representation before the then Minister for Revenue and also before the officials concerned, which was forwarded to the 2nd respondent for necessary action and report. The 2nd respondent submitted Ext.P14 report dated 21.7.1997 before the Government stating that, as per the Basic Tax Register (BTR) the total extent of land in Sy.No.77/1 is 25355.58 acres, out of which an extent of 21654.46 acres is in Mankulam Village and the remaining extent of 3701.12 acres is in Kannan Devan Hills Village. As per Ext.P13 order passed by the Land Board the total extent of land vested in the Government is 28291.64 acres, out of which 22311.00 acres is in Mankulam area in Survey W.P.(C).No.27655 of 2007 5 Nos. 75 and 77 part. The extent of land in Survey No.75 is 756.54 acres. As per the order passed by the Land Board the extent of land in Survey No.77 is 27535.10 acres. As per BTR, there is a difference of 2778.63 acres in the land vested in the Government in Survey No.77. By the Resumption Act, the entire extent of 21654.46 acres available as per BTR in Mankulam Village has been vested in the Government. Therefore, there is every possibility that, the land claimed by the petitioners could be part of the aforesaid extent of 2778.63 acres, which could be ascertained only after the completion of the survey being conducted for demarcating the land vested in the Government in Kannan Devan Hills Village and finalising the records.
4. Based on Ext.P14 report, the 1st respondent by Ext.P15 letter dated 4.9.1997 informed the 1st petitioner that, further steps on the complaint made by the Society can be taken only after completion of survey and demarcation of the land vested in the Government and that, the 2nd respondent has already been instructed to take necessary steps to complete the survey at the earliest. Later, the 2nd respondent vide letter dated 21.10.1997 informed the 1st respondent that, it would be appropriate to conduct W.P.(C).No.27655 of 2007 6 survey of the lands in Survey No.77/1 of Mankulam Village, in view of the objection that an excess extent of 2778.68 acres in the said survey number was taken over based on Ext.P13 order of the Land Board and that, the said extent was owned by Sri.Chandra Mohana Menon of Poonjar Kovilakom, on the strength of Ext.P22 Settlement Deed No.2971/1970 dated 7.12.1970 of SRO, Kottayam. The Director of Surveys vide letter dated 16.1.1998 also informed the 1st respondent that, a re-survey of the lands in Survey No.77/1 of Mankulam Village can be undertaken. In such circumstances, the 1st respondent in Ext.P16 order dated 28.1.1998 ordered re-survey of the lands taken possession from Kannan Devan Hills Plantation Company in Survey No.77/1 of Mankulam Village. Later, the Secretary of the 1st petitioner Society submitted Ext.P17 representation dated 8.8.2000 before the Land Revenue Commissioner, for restoration of the lands in question.
5. While so, some of the members of Poonjar Kovilakom approached this Court in O.P.No.29673/2001, which was disposed of by Ext.P18 judgment dated 20.9.2006 directing the respondents therein to see that the survey as contemplated under Section 6 of W.P.(C).No.27655 of 2007 7 the Act is completed, if not already completed within a period of six months from the date of judgment. Pursuant to the said judgment, the 1st respondent by Ext.P19 order dated 30.11.2006 entrusted the survey to National Remote Sensing Agency (NRSA), Hyderabad, and the 2nd respondent was authorised to conduct survey in co-ordination with NRSA and complete it before 15.3.2007. The grievance of the petitioners is that, in spite of Ext.P19, the survey of the lands in Survey No.77/1 of Mankulam Village has not been completed and their claim for restoration of the lands covered by Exts.P1 to P12 stands unattended, whereas the 1st respondent has been assigning lands resumed as per Ext.P13 order of the Land Board to encroachers. It was in such circumstances, the petitioners have approached this Court in this Writ Petition seeking a writ of mandamus commanding the respondents to complete survey of the lands as per Exts.P16 and P18 immediately and also a writ of mandamus commanding the 1st respondent to take immediate steps to return the properties covered by Exts.P1 to P12 to the petitioners, after completing the survey, expeditiously.
6. A counter affidavit has been filed on behalf of the 2nd W.P.(C).No.27655 of 2007 8 respondent contending, inter alia, that by Ext.P20 agreement dated 11.7.1877 (known as the First Poonjat Concession), the then Chief of Poonjar Edavagai granted a lease without limit of time to late Mr.J.D.Munro of a tract of land known as Anchunad and Kannan Devan Hills, later carried out as the revenue village of Kannan Devan Hills. Mankulam Village was formerly a part of Kannan Devan Hills Village. By a Royal proclamation dated 24.9.1899, the rights of the Poonjar Edavagai over the said tracts were vested in the Government of Travancore. Therefore, the lands are Government lands and persons in possession are only lessees under the Government. Government of Kerala, being successor of the former Government of Travancore, was vested with the right, title and interest of the lessor. Later the Government found that a large extent of agricultural lands in Kannan Devan Hills Village had not been converted into plantations and such lands are not required for the purpose of existing plantations. Accordingly, the Government decided to resume such lands for distribution for cultivation and purposes ancillary thereto. Consequent to this, Kannan Devan Hills (Resumption of Lands) Act, 1971 was enacted, the validity of which W.P.(C).No.27655 of 2007 9 was upheld by the Hon'ble Apex Court in SLP(C)No.44 of 1974 filed by KDHP Company. The Land Board was authorised to examine the restoration of possession of lands in certain areas after giving the applicant an opportunity of being heard and after such enquiry as it deems necessary. After reserving such extent of lands, the possession of which was vested in the Government towards the promotion of agriculture (other than lands which have been restored under Section 4 of the Act), the Government decided to distribute the balance extent of land for agricultural purpose. Accordingly, an extent of 5189 acres of land was set apart for assignment on registry to agriculturists and agricultural labourers. An extent of 1756 hectare of land has been distributed in 2227 cases so far. Assignment proceedings are later stayed by this Court in Ext.R2(a) interim order dated 12.12.2005 in W.P.(C)No.32000/2005. Regarding the title claimed by the petitioners on the strength of Exts.P1 to P12 sale deeds executed by Sri.Chandra Mohana Menon of Poonjar Kovilakam, the 2nd respondent would contend that, the aforesaid documents are legally null and void since the right over the land in question had already been alienated by the Poonjar W.P.(C).No.27655 of 2007 10 Kovilakam to Mr.J.D.Munro, the predecessor in interest of the KDHP Company, by Ext.P20 document dated 11.7.1877. As per the Village records, the Survey Nos.77/1 and 75/1 of Mankulam Village were in the name of KDHP Company, a major portion of which was later resumed by the Government consequent on the enactment of Kannan Devan Hills (Resumption of Lands) Act. Therefore, the 2nd respondent would contend that, the petitioners are trying to grab the Government land with the support of illegal documents. The Kannan Devan Hills (Resumption of Lands) Act was enacted by the Government, in order to distribute the unutilised portion which are not required for the plantation purpose. The Land Board passed Ext.P13 order dated 29.03.1974 by which an extent of 70522.12 acres of land was ordered to be taken over, out of which an extent of 5189.88 acres of land was set apart for assignment. The specific stand taken by the 2nd respondent in the counter affidavit is that, the petitioners have no right or possession over the land covered by Exts.P1 to P12 sale deeds and the said land has already been taken over by the Government and distributed to the landless agriculturists or set apart for afforestation.
W.P.(C).No.27655 of 2007 11
7. The petitioner has filed a reply affidavit contending that, by Ext.P20 agreement dated 11.7.1877 (First Poonjat Concession), Kerala Varma Valiya Raja, the then Poonjar Chief, granted a large extent of land called 'Kannan Tevan Anchantu Mala' by stating specific boundaries to Mr.J.D.Munro, with the exception of such property that are used by the tenants for agriculture, public utility, water supply and other purposes, subject to certain conditions for a consideration of Rs.5,000/- and subject to an annual rent of Rs.3,000/-, for Coffee cultivation. Relying on Ext.P20, the petitioners would contend that, the then Chief of Poonjar Edavagai transferred to Mr.J.D.Munro only the lands described therein and it was not a transfer of the entire area of 'Kannan Tevan Anchantu Mala'. Later, by Ext.P21 agreement dated 18.09.1899 entered into between Rohini Thirunal Kerala Varma Raja, the then Chief of Poonjar Koyikkal, and the Travancore Government, the ownership of the land described in the First Poonjat Concession had been transferred to the Government of Travancore. However, the land which has been set apart for the cultivating tenants and such other lands which are excluded from Ext.P20 had not been included in Ext.P21 agreement, W.P.(C).No.27655 of 2007 12 which specifically describes the four boundaries of land which has been transferred to the Government of Travancore and it has been stated therein that the northern boundary of the land is Munnar- Anakkulam Road. The petitioners would contend that, one of the boundaries of their land is Munnar-Anakkulam Road, and therefore, the ownership of the land covered by Exts.P1 to P12 sale deeds is specifically excluded from the purview of Ext.P20 First Poonjar Concession dated 11.7.1877 and Ext.P21 agreement dated 18.09.1899. As such, the land covered by Exts.P1 to P12 sale deeds was never vested with the Government of Travancore. If the property covered by Exts.P1 to P12 documents are covered by Ext.P21 agreement, neither the Government of Travancore nor the District Registrar of Kottayam would have effected registration of Ext.P22 settlement deed No.2971/1970 dated 07.12.1970 by which 5000.52 acres of land has been transferred in the name of Sri.Chandra Mohana Menon by his father Sri.Avittam Thirunal P.Rama Varma Valiya Raja. Since the petitioners were holding the land in question on the basis of Exts.P1 to P12 registered sale deeds they are not encroachers as alleged and they ought not to have been W.P.(C).No.27655 of 2007 13 evicted and that, they are entitled for resumption of the said land.
8. I heard the arguments of the learned counsel for the petitioners and also the learned Special Government Pleader appearing for the respondents.
9. The Kannan Devan Hills (Resumption of Lands) Act, was made to provide for the resumption of lands other than plantations in the Kannan Devan Hills Village in the Devicolam Taluk of Kottayam District and for the distribution of such lands for cultivation and purposes ancillary thereto. A reading of preamble of the Act would show that the lands comprising the entire revenue village of Kannan Devan Hills in Devicolam Taluk of Kottayam District had been given on lease by the then Poonjar Chief to late Mr.J.D.Munro on 11.7.1877, for coffee cultivation and that, the right, title and interest of the lessor had been assumed by the former Government of Travancore. By such assumption, the lands have become the property of the former Government of Travancore and the Government of Kerala have become the successor to the former Government of Travancore. A large extent of agricultural lands in that village has not been converted into plantations or utilised for W.P.(C).No.27655 of 2007 14 purposes of plantation and such lands are not required for the purpose of the existing plantations. Therefore, the Government considered that such agricultural lands should be resumed for the distribution thereof for cultivation and purposes ancillary thereto. As per sub-section (2) of Section 1, the Act shall be deemed to have come into force on the 21.1.1971 and going by sub-section (3) of Section 1, it applies to the land comprising the revenue village of Kannan Devan Hills in the Devicolam Taluk of Kottayam District.
10. Clause (e) of Section 2 of the Act defines lesseee' to mean a person in possession of any land situated in the Kannan Devan Hills Village in the Devicolam Taluk of the Kottayam District, who has derived the right to such possession by means of a document executed by late Mr.J.D.Munro or any person claiming through him or any person claiming under or through any of the successors-in-interest of the said Mr.J.D.Munro. Clause (f) of Section 2 defines 'plantation' as any land used by a person principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon (hereinafter referred to as 'plantation crops'). Section 3 of the Act deals with vesting of possession of certain lands. As per sub-section W.P.(C).No.27655 of 2007 15 (1) of Section 3 of the Act, notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day the possession of all lands situated in the Kannan Devan Hills Village in the Devicolam Taluk of the Kottayam District shall stand transferred to and vest in the Government free from all encumbrances and the right, title and interest of the lessees and all other persons including rights of mortgagees and holders of encumbrances, in respect of such lands, shall stand extinguished. Sub-section (2) of Section 3 provides that, nothing contained in sub-section (1) shall apply in respect of the lands enumerated in clauses (a) to (d) of sub-section (2) of Section 3 of the Act namely, plantations, other than plantations belonging to trespassers; buildings, other than buildings belonging to trespassers, and lands appurtenant to, and necessary for the convenient enjoyment or use of such buildings; play grounds and burial and burning grounds; and lands in the possession of the Central Government or any State Government or the Kerala State Electricity Board. Going by sub-section (3) of Section 3, nothing contained in W.P.(C).No.27655 of 2007 16 sub-section (1) shall apply in respect of so much extent of land held by a lessee under his personal cultivation as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto.
11. Section 4 of the Act deals with restoration of possession of lands in certain cases. As per sub-section (1) of Section 4, where the person in possession of a plantation considers that any land, the possession of which has been vested in the Government under sub- section (1) of Section 3 is necessary for any purpose ancillary to the cultivation of plantation crops in such plantation or for the preparation of the same for the market; or being agricultural land interspersed within the boundaries of the area cultivated with plantation crops, is necessary for the protection and efficient management of such cultivation; or is necessary for the preservation of an existing plantation, he may, within sixty days from the date of publication of the Act in the Gazette, apply to the Land Board for the restoration of possession of such land.
12. Section 6 of the Act deals with demarcation of boundaries. Going by sub-section (1) of Section 6, as soon as may W.P.(C).No.27655 of 2007 17 be after the appointed day, the Collector shall cause the boundaries of each parcel of land, the possession of which has vested in the Government under sub-section (1) of section 3, to be demarcated. As per sub-section (2), as soon as may be after the demarcation of the boundaries of a parcel of land under sub-section (1), the Collector shall publish a notification in such manner as may be prescribed specifying the extent, identity and such other particulars as may be prescribed of such land. Section 7 of the Act deals with decision of disputes regarding vesting. Going by sub-section (1) of Section 7, if any question arises as to whether the possession of a parcel of land or a portion of a parcel of land has been vested in the Government under sub-section (1) of Section 3, such question shall be referred by the Collector to the Land Board for decision. As per sub-section (2) of Section 7, as soon as may be after the receipt of a reference under sub-section (1), the Land Board shall, after giving the persons interested an opportunity of being heard and after such inquiry as it deems necessary, decide the question and such decision shall be final. Sub-section (3) of Section 7 provides further that, notwithstanding the reference of a question to the Land Board under W.P.(C).No.27655 of 2007 18 sub-section (1), the Collector may, if he is satisfied that the possession of such parcel of land or portion has been vested in the Government under sub-section (1) of Section 3, cause the boundaries of such parcel of land to be demarcated as if the possession thereof has been vested in the Government under that sub-section. Going by the Proviso to Section 7, if the Land Board decides that such parcel of land or portion has not been vested in the Government under sub-section (1) of Section 3, the Collector shall, as soon as may be, restore possession of such parcel or portion, as the case may be. Section 8 of the Act provides that, notwithstanding anything contained in any law for the time being in force, or in any contract or other document, no compensation shall be payable for the extinguishment under sub-section (1) of section 3 of the right, title and interest of the lessees or other persons or of the rights of mortgagees or holders of encumbrances.
13. Section 9 of the Act deals with assignment of lands. As per sub-section (1) of Section 9, the Government shall, after reserving such extent of the lands, the possession of which has vested in the Government under sub-section (1) of section 3 (other than lands, W.P.(C).No.27655 of 2007 19 the possession of which has been restored under section 4), as may be necessary for purposes directed towards the promotion of agriculture or the welfare of the agricultural population to be settled on such lands, assign on registry the remaining lands to agriculturists and agricultural labourers in such manner, on such terms and subject to such conditions and restrictions, as may be prescribed. Section 10 of the Act deals with eviction of persons in occupation on the appointed day. Going by sub-section (1) of Section 10, the Collector or any officer authorised by him in that behalf may summarily evict any person in occupation of any land, the possession of which has vested in the Government under sub- section (1) of Section 3. As per sub-section (2) notwithstanding anything contained in any other law for the time being in force, the Collector or the officer authorised under sub-section (1) may, for the purposes of that sub-section, use such force as he deems necessary. Similarly, Section 11 of the Act deals with trespass after the appointed day. Going by sub-section (1) of Section 11, it shall not be lawful for any person to enter upon any land, the possession of which has vested in the Government under sub-section (1) of section W.P.(C).No.27655 of 2007 20 3, so long as it is in the possession of the Government, with intent, to occupy such land or to cut or remove any trees standing thereon, without the permission of the Collector or any officer authorised by the Collector in that behalf. As per sub-section (2), without prejudice to any penalty under sub-section (4), the Collector or any officer authorised by him in that behalf may summarily evict any person who contravenes the provisions of sub-section (1) and may confiscate or demolish any building, shed or other structures put up on such land. Going by Section 12 of the Act, the Land Board and the Collector shall, for the purpose of exercising any power conferred by or under the Act, have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 in respect of the matters ennumerated in clauses (a) to (f) of sub-section (1) of Section 12.
14. A Constitution Bench of the Apex Court in Kannan Devan Hills Produce Company Ltd. v. State of Kerala (1972 (2) SCC
218) had occasion to consider whether the Kannan Devan Hills (Resumption of Lands) Act is within the legislative competence of the State of Kerala and whether the said Act is protected from W.P.(C).No.27655 of 2007 21 challenge under Article 31A of the Constitution of India, and if so, to what extent. After elaborate consideration of the issues, the Apex Court concluded that the State Legislature was competent to enact the aforesaid Act and that it is not repugnant to the Tea Act, 1953. Coming to the second issue, namely whether the Kannan Devan Hills (Resumption of Lands) Act is protected from challenge under Article 31A of the Constitution of India, the Apex Court concluded that the said legislation is protected from challenge by Article 31A of the Constitution of India.
15. In Kannan Devan Hills Produce Company's case (supra) the Apex Court noticed that, Mr.J.D.Munro obtained the First Pooniat Concession from Punhatil Kayikal Kerala Varma Valiya Raja, on 11.7.1877, which recited that, an application was made for the grant of the property for coffee cultivation. The Concession conveyed the properties in consideration of Rs. 5,000/-. It was further stipulated in the Concession that, Mr.J.D.Munro shall clear and remove the jungles, and reclaim the waste lands within the said boundaries, and cultivate them with coffee up to the year 1058 and from the year 1059, pay the Rent Collector a yearly rent at the rate of 3,000 W.P.(C).No.27655 of 2007 22 British Rupees. His Highness the Maharaja executed a deed of ratification, dated 28.11.1878, by which the Government ratified the First Pooniat Concession dated 11.7.1877. That deed of ratification laid down the terms and conditions in regard to Government assessment and other matters under which the Government permitted the grantee to hold the land. These terms and conditions were declared in the deed to be independent of any rents or payments due to the Poonjar Chief under the grantee's agreement with him.
16. On 2.8.1886, the agreement called the Second Pooniat Concession was entered into modifying the previous deed of ratification. By this time a company called the North Travancore Land Planting and Agricultural Society, Ltd. had acquired the rights in the said land from Mr.J.D.Munro. The Land Revenue Manual (Vol.3, Part 1 Revised Edition 1936, Page 7) summarises the main provisions. Para (1), (2), (6), (10) and (11) reads thus;
"(1) Assessment of one-half of a British Rupee per annum on every acre of land, other than grass land, which is opened up for the purpose of cultivation or otherwise.
(2) Assessment of two annas and eight pies per annum on every W.P.(C).No.27655 of 2007 23 acre, of grass land brought under cultivation or taken up for homesteads and farmsteads, or reserved as shooting reserves or for the grazing of cattle or for any other purposes. (6) The Society may use and appropriate to its own use within the limits of the Concession all timber except teak, cole-teak, blackwood, ebony (Karunthaly) and sandalwood, but should not fell any timber beyond what is necessary for clearing the ground for cultivation or for building, furniture and machinery, within the limits of the grant. No unvalued timber or articles manufactured therefrom should be carried outside, the limits of the grant except in conformity with the rules of the Forest and Customs Depart- ments for the time being in force.
(10) The land is to be held in perpetuity as heritable or transferable property but every case of transfer of the grant by the Society should be immediately made known by the Society to the Government.
(11) On the discovery by the Society of any useful or valuable mines, minerals or treasures within the limits of the grant, the same should at once be communicated to the Government and the Society should, in respect to such mines, minerals and treasures, abide by the decision of the Government."
17. A Royal Proclamation was made on 24.9.1899. In the Land Revenue Manual (Vol.3 Part 1 Revised Edition 1936, page 9) it is stated that, this Proclamation was the outcome of an arrangement W.P.(C).No.27655 of 2007 24 made by the Government, with the Poonjar Chief for the surrender of certain proprietary rights which he had been exercising over the tract known as Anjanad and Kannan Devan Hills. The Royal Proclamation made on 24.9.1899 recites as follows;
"Whereas we deem it expedient to clearly declare the position of this State in respect of the tract known as Anjanad and Kannan Devan Hills, we are pleased to declare as follows; (1) The tract known as Anjanad and Kannan Devan Hills is an integral portion of our territory and all rights over it belong to and vest in us.
(2) The inhabitants of the said tract and all others whom it may concern are hereby informed and warned that they are not to pay any taxes, rents or dues, or make any other payment to the Poonjar Chief or his representatives or to any person other than an officer of our Government authorised in this behalf, in respect of anything in, upon or connected with the said tract, with the exception, however, of a payment of rupee three thousand per annum from the successors in interests of the late Mr.J.D.Munro of London and Peermade now being paid to the said Chief in virtue of a Lease deed executed by the said Chief in favour of the said late Mr.J.D.Munro on the 11th July, 1877, and which we are pleased to permit the said Chief to continue to receive. (3) The lands within the said tract will be dealt with by our Government in the same manner as lands in other parts of our W.P.(C).No.27655 of 2007 25 territory with such modifications as the circumstances and conditions of the said tract may require and all taxes, rents and dues hitherto paid, and that may hereafter be imposed by our Government shall, with the exception of the sum of rupees three thousand aforesaid, be paid by the, occupants of lands within the said tract whose occupation has been or may be recognized or confirmed by our Government, and of such portions of the said tract as may from time to time hereafter, with the permission of our Government, be occupied, to the officers of our Government who may be authorised in this behalf."
18. The Preamble of the Kannan Devan Hills (Resumption of Lands) Act, 1971 reads as follows;
"Whereas the lands comprising the entire revenue village of Kannan Devan Hills in the Devicolam Taluk of the Kottayam district had been given on lease by the then Poonjar Chief to late Mr.John Daniel Munro of London and Peermade on the 11th day of July, 1877, for coffee cultivation;
And Whereas the right, title and interest of the lessor had been assumed by the former Government of Travancore; And Whereas by such assumption the lands have become the property of the former Government of Travancore; And Whereas the Government of Kerala have become the successor to the former Government of Travancore; And Whereas large extent of agricultural lands in that village has not been converted into plantations or utilised for purposes of W.P.(C).No.27655 of 2007 26 plantation and such lands are not required for the purposes of the existing plantation;
And Whereas the Government consider that such agricultural lands should be resumed for the distribution thereof for cultivation and purposes ancillary thereto."
19. After referring to the Preamble of the Act, the Apex Court noticed that, in the preamble the State claims that the right, title and interest of the Poonjar Chief had been assumed by the former Government of Travancore and the lands had become the property of the former Government of Travancore and now the Government of Kerala and that the object is to resume agricultural lands for distribution for cultivation and purposes ancillary thereto. The Apex Court noticed further that, what Section 3 of the Act vests in the Government is not only agricultural lands but all lands situated in the Kannan Devan Hills Village in the Devicolam Taluk of the Kottayam district. It extinguishes the rights of the lessees and other persons and vests the lands in the State subject to some exceptions which are contained in sub-sections (2) and (3) of Section 3. Section 4 of the Act proceeds on the basis that certain lands, which have vested in the State under Section 3, may be necessary for the W.P.(C).No.27655 of 2007 27 efficient carrying on of the plantation. A procedure is laid down by which the Land Board shall determine, the extent of land necessary for purposes mentioned in Section 4 (a), (b) and (c) to be specified in the application of the landholder, and direct restoration of possession. Section 5 of the Act alleviates the rigour of Section 4 by giving the Collector power to remove the hardship, if any, on the management of the plantation on the vesting of any land under sub- section (1) of Section 3. Section 8 of the Act provides that no compensation shall be payable for the extinguishment under sub- section (1) of Section 3 of the right, title and interest of the lessees or other persons or of the rights of mortgagees or holders of encumbrances.
20. Coming to the second issue, namely whether the Kannan Devan Hills (Resumption of Lands) Act, 1971 is protected from challenge under Article 31A of the Constitution of India, the Apex Court formulated three points for consideration, namely (1) Do the lands acquired fall within the expression 'janmam right' in Article 31A(2)(a)(i) of the Constitution of India; (2) If not, do they fall within the expression 'estate' as defined in Article 31A(2) of the W.P.(C).No.27655 of 2007 28 Constitution of India; and (3) If not, do any of the lands fall within the lands described in Article 31A(2)(a)(iii) of the Constitution of India.
21. Dealing with the first point, the Apex Court observed that, there is no doubt that the Poonjar Raja was a Janmi when the First Concession was granted to the predecessor in interest of the KDHP Company and if nothing had transpired after that the whole lands would have fallen within the expression 'Janmam right'. But the Royal Proclamation dated 24.9.1899 changed the situation. The Poonjar Chief surrendered certain rights which he had been exercising over the tract known as Anjanad and Kannan Devan Hills. The the Apex Court considered the effect of this surrender, with reference of its previous judgment in Kavalappara Kottarathil Kochuni v. State of Madras (1960 (3) SCR 887), wherein the nature of 'Janmam right' has been examined and also the Travancore Land Revenue Manual Volume 4, Mr. Kunhiraman Nair's Memo on Land Tenures, etc., and observed that, on the material placed before the Court it is difficult to resist the conclusion that the lands in dispute fall within the expression 'Janmam right'. If, as stated in Travancore W.P.(C).No.27655 of 2007 29 Land Revenue Manual Volume 4, there are no lands that do not belong to a Janmi and the Sircar becomes a Janmi by gift, escheat, confiscation or otherwise, the effect of the Royal Proclamation of 1899 must be that the Sircar became the Janmi.
22. The Apex Court then proceeded to deal with the second point, assuming that the lands do not fall within 'Janmam Right'. The Apex Court noticed that, as per the Travancore Land Revenue Manual, Volume 3, Revised Edition, 1936, 'Registered Lands' include, inter alia, 'Pandaravaka lands' and 'Janmam lands'. Regarding 'Pandaravaka lands', it is stated therein that, Pandaravaka or Sircar lands are lands of which the State is the landlord or the Janmi and whatever rights which vest in the ryots are derived from the Sircar. Kanan Devan Hills Concession is dealt with under this heading, i.e., 'Pandaravaka lands'. 'Jenmam land' is defined in the Jenmi and Kudiyan Regulation' V of 1071 as land (other than Pandaravaka. Sripandaravaka, Kandukrishi or Sircar Devaswom land, recognised as such in the Sircar accounts) which is either entirely exempt from Government tax or if assessed to public revenue, is subject to Rajabhogam only, and the occupancy right in which is created for a W.P.(C).No.27655 of 2007 30 money consideration (Kanom) and is also subject to the payment of Michavaram or customary dues and the payment of the renewal fees. This definition is intended for the purposes of the Regulation, which regulates the relations between Janmis and their Kanapattom tenants. A Janmi has not only Kanapattom tenants but has other tenants as well holding on Adima Anubhogam, Thiruvulam and similar other tenures and the Regulation is not concerned with the latter class of tenants in whose case the ordinary law of landlord and tenant is applicable. Revenue law, on the other hand, makes no distinction between a Kanapattom tenant and a non Kanapattom tenant if he holds under a Janmi recognised in the revenue accounts. Hence for revenue purposes, janmam lands are lands that are entered in the revenue accounts under the heads of Devaswomvaka, Brahmamaswomvaka and Madampimarvaka, i.e., to say a land to be classed as Janmom land should have been recognised as such in the revenue accounts. The mere circumstance that a land belongs to a janmi does not bring it under janmom tenure and conversely the mere fact that janmom land is absolutely transferred to a non janmi does not any the less detract from its original character. Janmom W.P.(C).No.27655 of 2007 31 lands are allodial properties and the proprietary right in them is considered as inherent in the individual and not derived from the State. The Apex Court observed that, the State grants like Kannan Devan Hills Concession and Ten square Miles Concession and Munro Lands, were treated under the heading 'Pandaravaka Lands', i.e., lands belonging to the Sircar. After referring to its previous judgment in Purushothaman Nambudiri v. State of Kerala (1962 Supp. (1) SCR 753), wherein the Apex Court considered the case of Pandaravaka lands from the erstwhile State of Cochin, and held by majority that, the holders of land held as Pandaravaka verumpattom were proprietors of the lands and hold the lands subject to the liability to pay the assessment to the State, and therefore Pandaravaka verumpattom could be regarded as local equivalent of an estate under clause (2) of Article 31A of the Constitution. Therefore, the Apex Court observed that, if it is held that the land does not fall within the expression 'Janmam right' it may possibly be covered by its decision in Purushothaman Nambudiri's case (1962 Supp. (1) SCR 753), but as arguments were not addressed on this point, the Court did not expressed its final opinion. W.P.(C).No.27655 of 2007 32
23. The Apex Court then proceeded to deal with the third point, namely, if the lands acquired by the impugned Act are an estate, is the impugned Act a law for effecting agrarian reforms. The Apex Court after noticing that, Section 9 of the Kannan Devan Hills (Resumption of Lands) Act, 1971 envisages three purposes, namely, (1) reservation of lands for promotion of agriculture; (2) reservation of land for the welfare of agricultural population; and (3) assignment of remaining lands to agriculturists and agricultural labourers, proceeded to consider whether the first two purposes fall within the concept of agrarian reforms. After referring to its previous judgments in Deputy Commissioner and Collector, Kamrup v. Durga Nath Sarma (1968 (1) SCR 561), P. Vajravelu Mudaliar v. Special Deputy Collector, Madras (1965 (1) SCR 614), Ranjit Singh v. State of Punjab (1965 (1) SCR 82), etc., the Apex Court observed that, out of the three purposes, the first two are covered by the expression 'agrarian reform' and the legislation is protected from challenge by Article 31A of the Constitution of India.
24. The learned counsel for the petitioners would contend that, by Ext.P20 First Poonjat Concession the then Chief of Poonjar W.P.(C).No.27655 of 2007 33 Edavagai transferred to Mr.J.D.Munro only the lands described therein and it was not a transfer of the entire area of 'Kannan Tevan Anchantu Mala'. Later, by Ext.P21 agreement dated 18.9.1899 entered into between Rohini Thirunal Kerala Varma Raja, the then Chief of Poonjar Koyikkal and the Travancore Government, the ownership of the land described in the First Poonjat Concession alone had been transferred to the Government of Travancore. However, the land which has been set apart for the cultivating tenants and such other lands which are excluded from Ext.P20 had not been included in Ext.P21 agreement dated 18.9.1899, which specifically describes the four boundaries of land which has been transferred to the Government of Travancore. Therefore, the learned counsel for the petitioners would contend that, 5000.52 acres of land which has been transferred in the name of Sri.Chandra Mohana Menon by his father Sri.Avittam Thirunal P.Rama Varma Valiya Raja, vide Ext.P22 settlement deed No.2971/1970 dated 07.12.1970 has not been included in Ext.P21 agreement and as such, the lands covered by Exts.P1 to P12 sale deeds never vested with the Government of Travancore.
W.P.(C).No.27655 of 2007 34
25. As noticed by the Apex Court in Kannan Devan Hills Produce Company's case (supra), the Royal Proclamation made on 24.9.1899 was the outcome of an arrangement made by the Government, with the Poonjar Chief for the surrender of certain proprietary rights which he had been exercising over the tract known as Anjanad and Kannan Devan Hills. The said Royal Proclamation recites that, the tract known as Anjanad and Kannan Devan Hills is an integral portion of the territory of Government of Travancore and all rights over it belong to and vest in it. The inhabitants of the tract Anjanad and Kannan Devan Hills and all others whom it may concern are informed and warned by the said Royal Proclamation that, they are not to pay any taxes, rents or dues, or make any other payment to the Poonjar Chief or his representatives or to any person other than an officer of the Government of Travancore authorised in this behalf, in respect of anything in, upon or connected with the said tract, with the exception, however, of a payment of Rs.3,000/- per annum from the successors in interests of the late Mr.J.D.Munro now being paid to the said Chief by virtue of a lease deed executed by the said Chief in favour of the said late Mr.J.D.Munro on the W.P.(C).No.27655 of 2007 35 11.7.1877, and which Government of Travancore are pleased to permit the said Chief to continue to receive.
26. The Royal Proclamation made on 24.9.1899 (a proclamation made subsequent to Ext.P21 agreement dated 18.9.1899) makes it explicitly clear that, the lands within the tract Anjanad and Kannan Devan Hills will be dealt with by the Government of Travancore in the same manner as lands in other parts of its territory with such modifications as the circumstances and conditions of the said tract may require and all taxes, rents and dues hitherto paid, and that may hereafter be imposed by the Government of Travancore shall, with the exception of the sum of Rs.3,000/- aforesaid, be paid by the occupants of lands within the said tract whose occupation has been or may be recognized or confirmed by the Government of Travancore, and of such portions of the said tract as may from time to time thereafter, with the permission of the Government, be occupied, to the officers of the Government of Travancore, who may be authorised in this behalf. The Government of Kerala, the successor to the former Government of Travancore, noticed that large extent of agricultural lands in that W.P.(C).No.27655 of 2007 36 village has not been converted into plantations or utilised for purposes of plantation and such lands are not required for the purposes of the existing plantation and that, such agricultural lands should be resumed for the distribution thereof for cultivation and purposes ancillary thereto. The Preamble to Kannan Devan Hills (Resumption of Lands) Act, 1971 states that, lands comprising the entire revenue village of Kannan Devan Hills in the Devicolam Taluk of the Kottayam district had been given on lease by the then Poonjar Chief to late Mr.J.D.Munroe on the 11.7.1877, for coffee cultivation, and the right, title and interest of the Poonjar Chief had been assumed by the former Government of Travancore and the lands had become the property of the former Government of Travancore and now that of the Government of Kerala. As noticed by the Apex Court in Kannan Devan Hills Produce Company's case (supra), what Section 3 of the Act vests in the Government is not only agricultural lands but all lands situated in the Kannan Devan Hills Village in the Devicolam Taluk of the Kottayam district and it extinguishes the rights of the lessees and other persons and vests the lands in the Government of Kerala subject to some exceptions which are W.P.(C).No.27655 of 2007 37 contained in sub-sections (2) and (3) of Section 3. The specific stand taken in the counter affidavit filed by the 2nd respondent is that, Mankulam Village was formerly part of the Kannan Devan Hills Village and that, as per survey records Survey Nos.77/1 and 75/1 of Mankulam Village were in the name of KDHP Company, a major portion of which was resumed by the Government consequent on the enactment of Kannan Devan Hills (Resumption of Lands) Act. Therefore, it prima facie appears that there is no merit in the contention raised by the learned counsel for the petitioners that, the lands covered by Exts.P1 to P12 sale deeds never vested with the Government of Travancore.
27. It is on the strength of Exts.P1 to P12 sale deeds, the petitioners are contending that they have title and ownership over the lands in question comprised in Survey Nos.75/1 and 77/1 of Mankulam Village. But, they were forcefully evicted in the year 1978 in connection with the eviction proceedings initiated during the year 1974-78, in order to evict the encroachers from the land vested in the Government in terms of Ext.P13 order passed by the Land Board. The learned counsel for the petitioners would contend that, W.P.(C).No.27655 of 2007 38 as on the date of execution of Exts.P1 to P12 sale deeds the petitioners were cultivating tenants under Poonjar Kovilakom, in respect of the the respective lands held under their possession.
28. Going by the averments in the Writ Petition, the 1st petitioner is a Society registered under the Societies Registration Act, which was formed in order to promote group farming and to protect the interest and welfare of the agriculturists in Kottayam district and that, petitioners 2 to 11 are its members. Though the learned counsel for the petitioners would contend that, as on the date of execution of Exts.P1 to P12 sale deeds the petitioners were cultivating tenants under Poonjar Kovilakom, the case pleaded by the petitioners in Paras.13 and 15 of the Writ Petition is that, after purchase of the properties covered by Exts.P1 to P12 sale deeds, they have been cultivating in the respective lands. While so, Kannan Devan Hills (Resumption of Land) Act, 1971 was enacted for resumption of lands, other than plantations in Kannan Devan Hills Village in Kottayam district and for distribution of lands for cultivation and for purposes ancillary thereto and that, they were forcefully evicted from their registered holdings in the year 1978, W.P.(C).No.27655 of 2007 39 after destroying their houses and crops on a mistaken impression that they are encrochers of lands in Kannan Devan Hills Village.
29. In the Writ Petition, the petitioners have absolutely no case that they were cultivating tenants of lands covered by Exts.P1 to P12 sale deeds as on the date of execution of those documents. It is pertinent to note that, Exts.P2 to P6 and P8 to P10 sale deeds were executed in December, 1970. Similarly, Exts.P7 and P11 sale deeds were executed in January, 1971 and Exts.P1 and P12 sale deeds were executed in December, 1971. Further, going by the avernments in Para.1 of the Writ Petition the 1st petitioner society was registered only in the year 1971, with a registration number 'IV/150/1971' of the SRO, Kottayam. Therefore, even the registration of the 1st petitioner society was much after the execution of Exts.P2 to P11 sale deeds in favour of petitioners 2 to 10 and others, who are stated to be the members of the said society.
30. Going by the recital in Ext.P1 sale deed, much prior to the execution of the said documents, fifty persons, who are stated to be the members of the society were doing agricultural activities in their respective holdings, having an extent of 5 acres each, as cultivating W.P.(C).No.27655 of 2007 40 tenants. Similarly, the recital in Exts.P2 to P12 sale deeds are also to the effect that, the respective vendees were doing agricultural activities in their respective holdings as cultivating tenants. But, the petitioners have no such case in the Writ Petition.
31. Going by the avernments in the Writ Petition, the petitioners were forcefully evicted from their registered holdings in the year 1978, after destroying their houses and crops on a mistaken impression that they are encrochers of lands in Kannan Devan Hills Village. The petitioners have absolutely no case that, they were cultivating tenants in respect of the land covered by Exts.P1 to P12 as on the date of First Poonjat Concession. They have also no case that the lands covered by Exts.P1 to P12 were plantation, which was exempted from vesting under clause (a) of sub-section (2) of Section 3 of Kannan Devan Hills (Resumption of Land) Act, 1971. If, as contended by the petitioners, they were forcefully evicted from their registered holdings in the year 1978, they could have moved the 2nd respondent under sub-section (1) of Section 7 of the Act, seeking reference of their dispute regarding such vesting to the Land Board for decision. There is nothing on W.P.(C).No.27655 of 2007 41 record to indicate that, prior to 1996 the petitioners moved any complaint or representation, either before the Government or before the 2nd respondent, raising a dispute against the vesting of their registered holdings covered by Exts.P1 to P12 sale deeds. There is not even a scrap of paper to show that, the petitioners were cultivating tenants or persons in possession or ownership of the properties covered by Exts.P1 to P12 sale deeds, at any point of time prior to their alleged forceful eviction in the year 1978. Further, the petitioners have also no case that, after execution of Exts.P1 to P12 sale deeds they have effected mutation of their respective holdings under the Transfer of Registry Rules, 1966. Mutation of a property in the revenue record does not create or extinguish title, nor has it any presumptive value of title. It only enables the person, in whose favour the mutation is entered, to pay the land revenue in question. But, in a case in which there is not even a scrap of paper to indicate possession of the property in question, the absence of mutation is a circumstance justifying this Court drawing an adverse inference on the question of possession.
32. Therefore, the pleadings and materials on record makes it W.P.(C).No.27655 of 2007 42 explicitly clear that there is serious factual disputes as to the identity of the land covered by Exts.P1 to P12 sale deeds and as to whether the petitioners where in possession of the said land in the year 1978 when they were alleged to have been evicted in connection with the eviction of encroachers in terms of Ext.P13 order passed by the Land Board. The observation made by the 2nd respondent in Ext.P14 report is not at all sufficient to resolve the said factual dispute. Admittedly, the petitioners who were alleged to have been evicted in the year 1978 had not availed the statutory remedy provided under Sub-section (1) of Section 7 of the Kannan Devan Hills (Resumption of Lands) Act, 1971 which provides for reference of disputes regarding vesting of land to the Land Board for decision. In addition to this, the materials on record indicate that the 1st petitioner made representations regarding the alleged eviction before the respondents only in the year 1996. In such circumstances, the petitioners are not entitled for the reliefs prayed for in this writ petition and it is for them to avail the statutory remedy available under Sub-section (1) of Section 7 of the Act by seeking reference of their dispute regarding vesting of land to the Land Board for W.P.(C).No.27655 of 2007 43 appropriate decision, if so advised.
In the result, the writ petition fails and the same is dismissed. No order as to costs.
Sd/-
ANIL K.NARENDRAN, JUDGE skj/jv