Kerala High Court
P.M.Jacob Santhosh vs The Commissioner Of Land Revenue on 5 November, 2024
1
WP(C).18647/2020
2024:KER:82339
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
WP(C) NO. 18647 OF 2020
PETITIONER/S:
P.M.JACOB SANTHOSH, AGED 54 YEARS
S/O.LATE P.C.MATHEW, POTHADI HOUSE, CHIRAYAM, PANAYIKULAM P.O.,
PIN - 683 511.
BY ADVS.
T.K.AJITHKUMAR (VALATH)
SMT.T.MANASY
RESPONDENT/S:
1 THE COMMISSIONER OF LAND REVENUE
PUBLIC OFFICE BUILDING, MUSEUM ROAD, VIKAS BHAVAN, THIRUVANANTHAPURAM
- 695 001.
2 THE DISTRICT COLLECTOR
ERNAKULAM, CIVIL STATION, KAKKANADU, KOCHI - 682 030.
3 THE REVENUE DIVISIONAL OFFICER
FORT KOCHI, KOCHI- 682001.
4 THE TAHSILDAR, TALUK OFFICE
KANAYANNOOR, KOCHI - 682011.
OTHER PRESENT:
GP SRI. ASWIN SETHUMADHAVAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.9.2020, THE COURT
TODAY DELIVERED THE FOLLOWING:
2
WP(C).18647/2020
2024:KER:82339
JUDGMENT
(Dated this the 5th day of November 2024) In 1969, the petitioner's grandmother, Smt.Plamena filed an application for the assignment of 1 acre 50 cents of land in Sy. No.845/8 of Mulavukad village in Kanayannoor taluk in Ernakulam district under Rule 7(1) of the Kerala Land Assignment Rules, 1964 (for short 'the Assignment Rules, 1964'). Based on Mahazar and the report of the Village officer, Patta was issued as per Ext.P1 dated 21.7.1969. Ext.P5 sketch was also prepared at the time of issuance of Patta. The survey and demarcation charges were paid by late Plamena, as evidenced by Ext.P6. Thereafter, the Smt.Plamena applied for mutation, and the property was included in Thandaper No.715 in the name of Plamena, and a basic tax of 88 paise was also remitted. Ext.P7 is the extract of the Thandaper account register 3 WP(C).18647/2020 2024:KER:82339 where the nature of the land is noted as 'Puthuvalpathivu' (newly cultivated land). The land tax was paid only on 25.7.2001 after the mutation was effected as per Ext.P7. Plamena died intestate; thus, her sons and daughters inherited the property under the Succession Act. The petitioner, his brothers, sons, and daughters of the other deceased sons and daughters of Plamena thus became joint owners and were in possession of the property.
2. While so, the construction of a bridge connecting Ernakulam to Mulavukad was initiated, and proceedings under the Land Acquisition Act,1894 (for short 'the LA Act, 1894') were started. Since, as per the alignment, the property was with the landing face of the bridge, the petitioner's father filed a representation on 26.7.2001 before the 2nd respondent to include the property in the land acquisition proceedings. On 25.7.2001, the land tax arrears up to 2001 and 2002 was remitted. In the 4 WP(C).18647/2020 2024:KER:82339 preliminary notification under section 4(1) of the LA Act, 1894, the property of the petitioner was not included. The petitioner's father approached the various authorities to know the reason for non-inclusion in the land acquisition proceedings, and on enquiry, it was understood that Ext.P1 property was not shown as held by the petitioner's father and other legal heirs, instead it was recorded as 'purambok land'. On 13.8.2001, the petitioner's father submitted a petition before the Superintendent of Survey and Land Records (Resurvey). Thereafter, the petitioner's father approached this court by filing O.P. No.27604/2001, seeking a direction to make necessary corrections in the survey records with respect to Ext.P1 property. By Ext.P9 judgment, this court directed the Superintendent of Survey and Land Records (Resurvey), Ernakulam South, to reconsider the matter within 3 months from the date of receipt of a copy of the judgment. 5 WP(C).18647/2020 2024:KER:82339 Pursuant to the direction, Ext.P10 was issued on 6.3.2010, whereby the entry of Ext.P1 property as purambok was corrected as property of Smt.Plamena.
3. On the basis of the said correction, the petitioner's father made a representation before the Land Acquisition authorities for getting compensation for the property acquired. Since no orders were passed on the representation, the petitioner's father again approached this court by filing W.P.(C) No.11347 of 2010 for a direction to the Special Tahsildar (LA), who was 1st respondent therein, to grant compensation for land acquired. Though the official respondents raised a contention that the assignment itself is bad and a notice has already been issued for cancellation of the same, this court disposed of the Writ Petition, as the government has not taken any steps to modify Ext.P9 judgment, wherein it was held that the title of the petitioner and 6 WP(C).18647/2020 2024:KER:82339 his siblings in respect of the property is clearly admitted. Thus, a direction was issued to the 1st respondent to consider and pass orders on Ext.P15 representation submitted by the petitioner within 2 months from the date of receipt of a copy of the judgment. Aggrieved by Ext.Nos.P12 and P9, the State filed W.A.Nos. 8 of 2014 and 1282 of 2013. Both the Writ Appeals were heard together, and Ext.P13 judgment was passed affirming the judgment in W.P.(C) No.11347 of 2010 and O.P.No.4059 of 2002. However, it was made clear that for awarding compensation on land acquisition, different authorities under the LA Act, 1894 would have to decide the issues independently and uninfluenced by the fact that directions have been issued by this court for effecting changes in the basic tax register. The de facto possession, title, possession, de jure possession, actual extent available at the time of notification and acquisition, etc., have to 7 WP(C).18647/2020 2024:KER:82339 be considered while deciding the eligibility and quantum, if any, for fixation of the compensation.
4. As matters stood, the 4th respondent issued Ext.P14 proceedings dated 31.12.2016, cancelling the assignment to Smt.Plamena and it was declared that the assignee has no title to the land measuring 43.500 cents in Sy No.845 of Mulavukad village. Statutory appeals were filed against Ext.P14 before the 3rd respondent, but the 3rd respondent also dismissed the appeal. Thereafter, a revision was filed before the 1st respondent, and by order dated 21.2.2018, the Revision was also dismissed. The petitioner's father filed W.P.(C) No. 8583 of 2018 before this court, challenging the dismissal of the revision. This court, by judgment dated 9.4.2019, allowed the Petition on the ground that the petitioner was not issued with any notice before the passing of the order other than the notice issued on 28.9.1973. This court 8 WP(C).18647/2020 2024:KER:82339 also directed reconsideration of the issues afresh after hearing the petitioner and other legal heirs. In compliance with the direction, notices were issued to the petitioner and the other legal heirs and Ext.P16 order is passed on 5.8.2019 cancelling Ext.P1 patta. A statutory appeal was filed before the 3rd respondent, which also ended in Ext.P17 order dated 9.1.2019. Challenging the same, a statutory revision was filed before the 1st respondent under Rule 21(8) of the Kerala Land Assignment Rules, 1964 (for short 'the Assignment Rules, 1964') and by Ext.P19 confirmed the order cancelling the Patta. The petitioner challenges Ext: Nos.P16, 17 and 19 in this Writ Petition.
5. A counter affidavit is filed by the 4th respondent contending that the Writ Petition is not at all maintainable in law or on facts. It is true that a patta was issued on 21.7.1969 for an extent of 43.500 cents of puzha purambok land comprised in 9 WP(C).18647/2020 2024:KER:82339 block No.2 Re.Sy.No.31/25 (old Sy.No. 845/8) of Mulavukadu village in favour of late Plamena. The said assignment was made based on a mistake of facts and also on misrepresentation of facts. When the said fact was noticed, a notice under Rule 8(3) of the Assignment Rules, 1964, was issued on 31.7.1973 to the parties asking why the patta shall not be cancelled. The said notice was received, but no reply was filed by Smt.Plamena. When Land Acquisition proceedings were initiated, the Special Tahsildar (LA) GCDA, having convinced of the fact that the land in question is puzha purambok, based on site inspection and scrutinising the village records, published a notification on 9.8.2001 under section 4(1) of the LA Act, treating the land as puzha purambok. The legal heirs of Smt.Plamena approached the Village Officer Mulavukadu and, being unaware of the validity of the patta and the notice issued under Rule 8(2) of the 10 WP(C).18647/2020 2024:KER:82339 Assignment Rules, 1964, accepted the tax. The 4th respondent cancelled the Patta under 8(3) of the Assignment Rules, 1964, for the reason that Smt.Plamena had no eligibility at the time of issuing Patta and Smt. Plamena and her legal heirs failed to comply with the conditions in Rule 8(2) of the Assignment Rules, 1964. The Appeal, as well as the Revision filed against cancellation, were gone into detail by the concerned authorities and were dismissed, confirming the order of cancellation. Therefore, prayed that the Writ Petition be dismissed.
6. The respondents have produced, through a memo, the notice issued on 31.7.1973 under Rules 8(2) and 8(3) of the Assignment Rules,1964, to show cause why the land assigned on Registry, should not be cancelled. The said letter is addressed to Smt.Plamena and to be served through Village Officer, Mulavukad.
11WP(C).18647/2020 2024:KER:82339
7. Heard the counsel, Shri.T.K.Ajithkumar for the petitioner and the Government Pleader, Sri.Aswin Sethumadhavan for the respondents.
8. It is true that on an application filed by the petitioner's grandmother, Ext.P1 patta was issued in the name Smt. Plamena on 21.7.1969, though as per Ext.P7, the Thandaper was changed in the name of Smt.Plamena and a tax of 88 paise was received. Basic tax in respect of the property was not remitted thereafter till 25.7.2001. The petitioner's father filed O.P.No.4059 of 2002 to rectify the erroneous classification of his mother's property as per records of Mulavukad village. This court, considering Ext.P7 Thandaper register in the name of Smt.Plamena, held that Shri.P.C.Mathew, son of Smt.Plamena and his siblings are the titleholders of the property. Therefore, a direction was issued to reconsider the correction of resurvey 12 WP(C).18647/2020 2024:KER:82339 records, and by Ext.P10, the property was brought into the name of Smt.Plamena. Based on Ext.P10, the petitioner's father made a claim for compensation for the land acquired, and since it was rejected as the property was not included in the notification, he approached this court, and this court held that Smt.Plamena is entitled to compensation in view of Ext.P9 judgment. In the appeal filed against Ext.Nos.P9 and P12, a division bench of this court confirmed the judgments and a clarification was made that in respect of awarding of compensation, the authorities have to decide the issue independently and uninfluenced by the fact that this court has issued directions for effecting changes in the basic Tax Register. It was thereafter that the 4th respondent took up the matter and, after issuing notice, cancelled Ext.P1 patta, which was confirmed in Ext.Nos.P17 and P19.
9. Ext.P8 is the tax receipt issued on 25.7.2001 in respect of 13 WP(C).18647/2020 2024:KER:82339 17.20 ares of property in Survey No.845/8, which according to the petitioner, is the property obtained as per Ext.P1 patta. As on the date of acceptance of the basic tax, the property was shown as purambok in the revenue records. Ext.P7 is the extract of the Thandaper account in the name of Smt. Plamena, wherein the entry noted is that the extent of 43.500 cents is noted as puthuvalpathivu. As the basic tax was paid, Shri.P.C.Mathew moved this court with O.P. No.4059 of 2002 for a mandamus directing the Superintendent of Survey and Land Records (Resurvey), Ernakulam South, to make necessary corrections in the resurvey records in respect of 43.500 cents of land in Sy.No.845/8 in Mulavukad village showing the petitioner's mother as the Thandaper holder and that the petitioner and other legal heirs are the present owners and occupants of the said land. This court, by Ext.P9 judgment, set aside the proceedings of the 14 WP(C).18647/2020 2024:KER:82339 Deputy Director of Survey and Land Records and directed reconsideration in the light of the fact that the property is included in the Thandaper No.715 in the name of the Smt.Plamena. It is thereafter, on 6.3.2010, only the entries of the property in the revenue records as purambok have been corrected as the property of Smt.Plamena. After correcting the revenue records, the petitioners paid land tax on 24.3.2010 as per Ext.P11. The 4th respondent, after issuing notice to the petitioners, as per the directions in Ext.P15 judgment, found that though the patta was issued in the name of Smt.Plamena, since the property was not put to use for agricultural purposes invoking Rule 8(2) of Assignment Rules 1964, a notice was issued on 31.7.1973 to the parties to show cause why the patta should not be cancelled for 3 reasons; (i) Mulavukad village officer has not mentioned the eligibility and other legalities 15 WP(C).18647/2020 2024:KER:82339 which entitled the applicant for getting the land assigned on Registry, (ii) Though the land was assigned for agricultural purposes, the land should have been utilised for agricultural purposes within a period of one year as laid down in Rule 8(2) of the Assignment Rules 1964. But the applicant or the legal heirs had not utilised the land for any agricultural purposes, and
(iii) The Tahsildar had the reason to believe that the land was assigned by influencing the revenue department and was a mistake of facts.
10. Though the petitioner denies the receipt of the said notice, this court directed reconsideration after issuing fresh notice as per Ext.P15 judgment. After issuing fresh notice, the 4th respondent heard the petitioner and Ext.P16 order was passed, cancelling the patta issued to predecessors- in interest of the petitioner. The reason for cancelling the patta is that there is no 16 WP(C).18647/2020 2024:KER:82339 evidence forthcoming that the property was put to agricultural use after the issuance of the patta. It was only in the year 2001 that, for the first time, the basic land tax was paid, even though the patta was issued in 1969. When the village office received the basic tax in 2001, the property was noted in the Revenue Records as purambok. It is without conducting any enquiry that the tax receipt was accepted. Once a patta is issued as per Rules 22(3) and 22(7), the document should be verified, and after site inspection, invoking Rule 36 of the Kerala Survey and Boundaries Rules, 1964 (for short 'the Survey Rules, 1964), the Taluk Surveyor has to make a sketch and submit the same before the Tahsildar. The Tahsildar has to examine the sketch and then forward it to the Superintendent of Survey and Land Records. The Survey Superintendent has to examine the sketch and then forward it to the Village Officer and the basic tax register. Only 17 WP(C).18647/2020 2024:KER:82339 then, the Village Officer can accept the basic tax in respect of a property where patta was issued. So, the acceptance of tax by the Village Officer on 25.7.2001 does not comply with the Survey Rules, 1964, and the same cannot be taken as a document to substantiate that the property belongs to Smt.Plamena.
11. Moreover, when the land acquisition proceedings were initiated against the property, the Tahsildar (LA) specifically noted that the property is lying as puzha purambok and, therefore, the property was not included in the Section 4(1) Notification. At the time of notification, Smt.Plamena and none of the legal heirs were in actual possession of the land. No subdivision was done by the Survey Assistant Director. It is true that in Ext.P9, this court has held that since the property is included in thandaper No.715 in the name of Smt.Plamena, the title of Shri.P.C.Mathew and his siblings is admitted. Thereafter, 18 WP(C).18647/2020 2024:KER:82339 when this court also pronounced Ext.P12 judgment based on the findings entered in Ext.P9 judgment, it was ordered that the Special Tahsildar (LA) is liable to pay compensation for the land acquired from Smt.Plamena. However, when Writ Appeals were filed against both these judgments, the Division bench of this court confirmed the judgments in Ext.Nos.P9 and P12, it was made clear that for awarding compensation of land under the LA Act, the authorities are free to decide the issue regarding title, possession, de facto possession, dejure possession, and actual extent available at the time of notification and acquisition. Thus, the question whether the patta which is issued to Smt.Plamena was cancelled or not, was left open.
12. The 4th respondent, after a detailed consideration of the contentions of the petitioners and the official respondents by Ext.P16 proceedings, came to the definite conclusion that though 19 WP(C).18647/2020 2024:KER:82339 the land was issued with patta, Smt.Plamena or her legal heirs did not do any agricultural activities in the said land or had any possession over the land. The appeal filed against Ext.P16 was also considered at length by the 3rd respondent. The 3rd respondent specifically noted that the patta was issued in 1969, and for the first time in 2001, just before the land acquisition proceedings were initiated for the acquisition of the land, the basic tax was paid. There is also no evidence to show that Smt.Plamena or her legal heirs have ever cultivated in the said land.
13. Rule 8(3) of the Assignment Rules, 1964 prescribes that the Registry shall be liable to be cancelled for contravention of the provisions in sub-rule 1 or sub-rule 2. Sub Rule 2 to Rule 8 directs the member of the family or the successor-interest shall reside in the land if it is granted as a house site or shall personally 20 WP(C).18647/2020 2024:KER:82339 cultivate the same if it is granted for cultivation within a period of one year from the date of receipt of the patta. In this case, there is no evidence forthcoming from the side of the petitioner that he, along with his family, have ever cultivated the land that was given to them for agricultural purposes. This was fortified by the fact that the land tax was paid only in the year 2001 that, too, just before when the Section 4(1) notification for land acquisition was published. The Special Tahsildar (LA) GCDA, while initiating the land acquisition proceedings, after site inspection, found that the land in question has not been in possession and enjoyment of late Plamena or her legal heirs at any point of time. Moreover, the husband of the original applicant, the late Jacob, was running a ration shop and out of the 8 children, 4 had Government jobs, and 2 were running business. So, when the annual income is taken to become 21 WP(C).18647/2020 2024:KER:82339 eligible for patta, the annual income prescribed as Rs.30,000/- as per rule 7(1) of the Assignment Rules, 1964, would cross in the case of the petitioner. On that score also late Plamena was ineligible for the grant of patta. It is without taking into consideration this fact that the patta was issued. Against the dismissal of the appeal by the 3rd respondent, the petitioner has filed a Revision before the 1st respondent, and by Ext.P19, all the contentions raised by the petitioner were repelled, and the cancellation of the patta by the 4th respondent was upheld. The 1st respondent also found that there is violation of Rul 8(2) of the Assignment Rules, 1964. When 3 authorities have concurrently found on facts that though patta was issued in 1969 for agricultural purposes, the land has not been cultivated by the grantee, this Court under Article 226 of the Constitution of India, cannot reverse the finding of facts. I have gone through 22 WP(C).18647/2020 2024:KER:82339 extensively through Ext.Nos.P16, P17 and P19, and I am of the considered opinion that the authorities have clearly found that there is violation of provisions of Rule 8(2) of the Assignment Rules, 1964. In such circumstances, no interference is warranted; therefore, the Writ Petition is dismissed.
Sd/-
BASANT BALAJI, JUDGE dl/ 23 WP(C).18647/2020 2024:KER:82339 APPENDIX OF WP(C) 18647/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY PATTA ISSUED IN SY.NO.845 OF MULAVUKADU VILLAGE DATED 21/07/1969.
EXHIBIT P2 TRUE COPY OF THE APPLICATION FOR THE ASSIGNMENT BEFORE 15/11/1967.
EXHIBIT P3 THE TRUE COPY OF THE MAHASSAR IN SURVEY NO.845 DATED 04/03/1969.
EXHIBIT P4 THE TRUE COPY OF REPORT SENT FROM MULAVUKADU VILLAGE DATED 04/03/1969.
EXHIBIT P5 THE TRUE COPY OF THE SKETCH OF THE LAND IN SURVEY NO.845,PART.
EXHIBIT P6 THE TRUE COPY OF THE REMITTANCE OF LAND VALUE AND SURVEY CHARGES DATED 06/10/1969.
EXHIBIT P7 THE TRUE COPY OF THE THANDAPER 715. EXHIBIT P8 THE TRUE COPY OF RECEIPT OF VILLAGE TAX DATED 25/07/2001.
EXHIBIT P9 THE TRUE COPY OF THE JUDGMENT OF THE HONBLE HIGH COURT IN OP NO.4059/02 DATED 23/10/2009.
EXHIBIT P10 THE TRUE COPY OF PROCEEDINGS OF THE SURVEY SUPNDT DATED 06/03/2010.
EXHIBIT P11 THE TRUE COPY OF LAND TAX RECEIPT DATED 24/03/2010. EXHIBIT P12 THE TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT IN W.P.C.NO.11347/2010 DATED 19/11/2013. EXHIBIT P13 THE TRUE COPY OF THE COMMON JUDGMENT IN W.A.NO.1282/2013 AND W.A.NO.8/2014 DATED 30/11/2015.
EXHIBIT P14 THE TRUE COPY OF THE FORMER ORDER OF CANCELLATION OF ASSIGNMENT BY TAHSILDAR, KANAYANNOOR DATED 31/12/2016. EXHIBIT P15 THE COPY OF THE JUDGMENT OF HON'BLE HIGH COURT IN W.P.C.NO.8583/2018 DATED 09/04/2019.
EXHIBIT P16 THE TRUE COPY OF THE PROCEEDINGS OF THE TAHSILDAR, KANAYANNOOR CANCELLING ASSIGNMENT DATED 05/08/2019. 24 WP(C).18647/2020 2024:KER:82339 EXHIBIT P17 THE APPELLATE ORDER OF THE R.D.O., FORT KOCHI DATED 09/01/2020.
EXHIBIT P18 THE TRUE COPY OF THE REVISION PETITION NO.LR-J3-3100 DATE 18/01/2020.
EXHIBIT P19 THE TRUE COPY OF THE REVISION ORDER OF THE LAND REVENUE COMMISSIONER DATED 04/08/2020.
EXHIBIT P20 THE RELEVANT EXTRACT OF KERALA VILLAGE MANUAL, PARAGRAPH 266 REGARDING CALCULATION OF FAMILY INCOME. EXHIBIT P21 THE RELEVANT EXTRACT OF REVENUE GUIDE 2018 SHOWING THE ORDER OF LAND REVENUE COMMISSIONER.
EXHIBIT P22 THE TRUE COPY OF THE FIRST PAGE OF SSLC BOOK OF THE SON SHOWING DATE OF BIRTH.
EXHIBIT P23 THE TRUE COPY OF THE REVENUE DEPARTMENT CIRCULARS VIDE CIRCULAR NO.57671/P1/89/RD DATED 31/05/1990 AND CIRCULAR NO.37321/P1/90/RD DATED 14/09/1990.
EXHIBIT P24 THE TRUE COPIES OF THE CORRELATION STATEMENT OF MULAVUKAD VILLAGE.
EXHIBIT P25 THE RELEVANT EXTRACT OF THE BOOK "A GLOSSARY OF JUDICIAL AND REVENUE TERMS AND OF USEFUL TERMS OCCURRING IN OFFICIAL DOCUMENTS BY H.H.WILSON, EDITION 2020. EXHIBIT P26 THE RELEVANT EXTRACT OF THE ENGLISH MALAYALAM DICTIONARY BY ABHAY DEV PUBLISHED BY NATIONAL BOOK STALL. EXHIBIT P27 THE REPLY RECEIVED FROM KANAYANNOOR TALUK OFFICE UNDER RTI DATED 05/05/2020.
EXHIBIT P27(A) THE APPEAL REPLY RECEIVED FROM KANAYANNOOR TALUK OFFICE UNDER RTI DATED 10/07/2020.
EXHIBIT P27(B) THE REPLY RECEIVED FROM KANAYANNOOR TALUK OFFICE UNDER RTI DATED 11/08/2020.
EXHIBIT P28 THE REPLY RECEIVED FROM THE R.D.O.OFFICE FORT KOCHI DATED 03/02/2020.
EXHIBIT P28(A) THE APPEAL REPLY RECEIVED FROM R.D.O. OFFICE FORT KOCHI DATED 25/05/2020.