Kerala High Court
K.Abdul Vahid vs State Of Kerala on 4 March, 2016
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 4TH DAY OF MARCH 2016/14TH PHALGUNA, 1937
WP(C).No. 30041 of 2008 (B)
----------------------------
PETITIONERS:
----------------
1. K.ABDUL VAHID, VADAKKUMKARA PUTHEN VEEDU
ELAMBRAKODE, MADAVOOR VILLAGE, CHIRAYINKEEZHU
TALUK, THIRUVANANTHAPURAM DISTRICT.
2. M.RAMLA BEEVI, W/O.K.ABDUL VAHID,
VADAKKUMKARA PUTHEN VEEDU, ELAMBRAKODE
MADAVOOR VILLAGE, CHIRAYINKEEZHU TALUK
THIRUVANANTHAPURAM DISTRICT.
BY ADV. SRI.O.V.MANIPRASAD
RESPONDENTS:
------------------
1. STATE OF KERALA, REPRESENTED BY THE
SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT
SECRETARIAT, THIRUVANANTHAPURAM.
2. THE TAHSILDAR, CHIRAYINKEEZHU TALUK,
THIRUVANANTHAPURAM DISTRICT.
3. THE SUPERINTENDENT OF RE-SURVEY,
ATTINGAL, THIRUVANANTHAPURAM DISTRICT.
4. THE VILLAGE OFFICER, MADAVOOR VILLAGE,
CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT.
ADDL.R5:
THE DISTRICT COLLECTOR,
THIRUVANANTHAPURAM
ADDL.R5 IS SUO MOTU IMPLEADED AS PER ORDER OF THIS COURT
DATED 4.3.2016
R1-R4 & addl.R5 BY GOVERNMENT PLEADER SRI.P.V.ELIAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-03-
2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 30041 of 2008 (B)
APPENDIX
PETITIONERS' EXHIBITS:
EXT.P1: PATTA DTD. 29.7.2000 BY WHICH 11.500 CENTS OF LAND WAS
ASSIGNED TO THE 1ST PETITIONER.
EXT.P2: PATTA DTD. 28.5.1998 BY WHICH 43.622 CENTS HAVE BEEN
ASSIGNED TO THE 2ND PETITIONER.
EXT.P3: CERTIFICATE DTD.18.2.2003 ISSUED BY R4.
EXT.P4: RECEIPT DTD. 2.5.1998 SHOWING PAYMENT OF LAND VALUE,
BASIC TAX, ETC.
EXT.P5: RECEIPT DTD. 13.5.1999 ISSUED BY R4.
EXT.P6: CERTIFICATE DATED 17.5.2000 ISSUED BY R4.
EXT.P7: PETITION SUBMITTED BEFORE THE R3 ON 6.2.2003.
EXT.P8: PETITION DTD. 26.7.2003 BEFORE R2.
EXT.P9: APPLICATION DTD. 26.7.2003 SUBMITTED BEFORE R2.
EXT.P10: PROCEEDINGS OF R2 FOR THE ASSIGNMENT OF LAND TO THE 1ST
PETITIONER.
EXT.P11: PROCEEDINGS OF R2 FOR THE ASSIGNMENT OF LAND TO THE 2ND
PETITIONER.
EXT.P12: DECISION TAKEN ON 12.3.1997 BY THE MADAVOOR GRAMA
PANCHAYAT FOR THE ASSIGNMENT OF LAND TO THE 2ND PETITIONER.
EXT.P13: DECISION TAKEN ON 18.4.1998 BY THE CHIRAYINKEEZHU TALUK
ASSESSMENT COMMITTEE.
EXT.P14: DECISION IN THE MEETING HELD ON 8.6.2000 ASSIGNING THE
LAND TO THE 1ST PETITIONER.
EXT.P15: NOTICE ISSUED UNDER RULE 12(1) OF THE KERALA LAND
ASSIGNMENT RULES INVITING OBJECTION AGAINST ASSIGNMENT OF LAND IN
FAVOUR OF THE PETITIONERS.
EXT.P16: NOTICE ISSUED UNDER RULE 12(1) OF THE KERALA LAND
ASSIGNMENT RULES INVITING OBJECTION AGAINST ASSIGNMENT OF LAND IN
FAVOUR OF THE PETITIONERS.
EXT.P17: MAHAZAR AND PLAN DTD. 29.1.2000 AND THE REPORT OF THE
VILLAGE OFFICER DTD. 29.1.2000 WITH RESPECT TO THE ASSIGNMENT OF LAND
TO THE 1ST PETITIONER.
WP(C).No. 30041 of 2008 (B)
::2::
EXT.P18: MAHAZAR AND PLAN DTD. 29.1.2000 AND THE REPORT OF THE
VILLAGE OFFICER DTD. 29.1.2000 WITH RESPECT TO THE ASSIGNMENT OF LAND
TO THE 1ST PETITIONER.
EXT.P19: MAHAZAR AND PLAN DTD. 17.8.1996 WITH RESPECT TO THE
ASSIGNMENT OF LAND TO THE 2ND PETITIONER.
EXT.P20: ORDER GRANTING REGISTRY OF THE LAND TO THE 1ST
PETITIONER.
RESPONDENTS' EXHIBITS: NIL
// TRUE COPY //
P.A TO JUDGE.
ALEXANDER THOMAS, J.
-----------------------------
W.P(C).No.30041 Of 2008
---------------------------------
Dated this the 4th day of March, 2016.
J U D G M E N T
As per Ext.P-1 dated 29.7.2000, the 2nd respondent-Tahsildar, Chirayinkeezhu Taluk, Thiruvananthapuram District, has granted patta to the 1st petitioner in respect of 11.50 cents of land in Sy.No.722-1-7 of Madavoor Village in Chirayinkeezhu Taluk and as per Ext.P-2 dated 28.5.2008, the 2nd respondent-Tahsildar has granted patta to the 2nd petitioner in respect of 43.622 cents of land in the same survey number. The 1st petitioner is the husband of the 2nd petitioner. Ext.P-3 dated 18.2.2003 is the document which evidences payment of assignment charges and land tax by the 1st petitioner in respect of the patta covered by Ext.P-1. Ext.P-4 is the land tax receipt dated 2.5.1998 which evidences payment of land tax and 'tharavila' (land value) by the 2nd petitioner in respect of the land covered by Ext.P-2 patta. Ext.P-5 dated 13.8.1999 evidences payment of charges for issuance of patta to the 2nd petitioner. Ext.P-6 dated 18.2.2003 is the certificate regarding payment of land tax by the 2nd petitioner for the year 2000-01 for the above the ::2::
W.P(C).No.30041 Of 2008 said land covered by Ext.P-2 patta. Thereafter, the revenue authorities concerned have refused to accept land tax from both the petitioners by orally informing the petitioners that the land covered by Exts.P-1 & P-2 pattas are shown in the re-survey records as Government lands but not as pata lands. Thereupon, the 1st petitioner submitted Ext.P-7 representation dated 6.2.2003 before the 3rd respondent- Superintendent of Resurvey, Thiruvananthapuram, for taking necessary steps to ensure that the relevant records in the resurvey correctly show the 1st petitioner's land as patta land and not as Government land. Similar representation was also given by the 2nd petitioner before the 3rd respondent. But, they were informed by the 3rd respondent that he is not in a position to take any effective action on those representations. The 1st petitioner had submitted Ext.P-8 representation dated 26.7.2003 and the 2nd petitioner submitted Ext.P-9 representation dated 26.7.2003 before the 2nd respondent-Tahsildar praying that in view of the assignment proceedings and the pattas issued to the petitioners, necessary directions should be issued to the Village Officer concerned to accept the land tax from the petitioners in respect of the above said land covered by Exts.P-1 & P-2 pattas. Since no further action was ::3::
W.P(C).No.30041 Of 2008 forthcoming from respondents, the petitioners were constrained to institute the instant Writ Petition on 13.10.2008 with the following prayers:
"(i) Issue a writ of mandamus or other appropriate writ, order or direction directing the 2nd respondent to make necessary corrections in thew revenue/resurvey records with regard to the property assigned to the petitioners as per Ext.P1 and P2 showing their names as the owners of the properties;
(ii) Issue a writ of mandamus, order or direction directing the 2nd respondent to consider Ext.P8 and P9 petitions submitted by the petitioners with a further direction to the 4th respondent to receive the basic tax with regard to the properties covered by Ext.P1 and P2; and
(iii) Grant such other relief this Hon'ble court deems fit and proper to grant in the facts and circumstances of the case."
2. The 3rd respondent has filed a counter affidavit dated 30.1.2010 in this case in which the above facts regarding assignment proceedings and issuance of patta have been clearly admitted therein. It is stated in para 3 thereof that resurvey was notified under Sec.6(1) of the Kerala Survey and Boundaries Act, 1964, in Madavoor Village on 13.9.1977 and after completing the field work, notification under Sec.9 (2) under that Act was published on 2.11.1994 and records were published in the Village Office for examining and correcting anomalies. That Sec.13 notification was published on 9.6.1998 and the resurvey records were implemented for revenue administration on 1.8.2000, that patta in the case of the 1st petitioner was issued on 29.7.2000 and that ::4::
W.P(C).No.30041 Of 2008 patta in respect of the 2nd petitioner was issued on 28.5.1998 and that both these pattas have been issued after publication of the above said Sec.9(2) notification and Sec.13 notifications. It is further stated that in the old survey records as well as in the resurvey records, the above said lands of the petitioners covered by the above said pattas are included as forest land/reserved forest. That pattas have been issued in this case in the old survey No.722. Since the land in the possession of the petitioners comes under reserve forest, the 3rd respondent maintained the status and not changed the status of the land as patta land. It is further contended that patta does not by itself confer any title on the petitioners and holding patta of an un-assignable forest land which is not otherwise assignable will not make the petitioners entitled for the same and that there is no legal right for the petitioners to get forest land or any other Government land assigned as a matter of right, etc.
3. Petitioners have filed a detailed reply affidavit dated 16.2.2011 to rebut the averments and contentions raised in the aforesaid counter affidavit. Ext.P-10 is the assignment proceedings issued in favour of the 1st petitioner which led to the grant of Ext.P-1 patta. The 2nd page of Ext.P-10 shows that pursuant to the application ::5::
W.P(C).No.30041 Of 2008 made by the 1st petitioner it has been found in the BTR (Basic Tax Register) that it has been recorded as barren land and that it is included in the list of assignable lands. It is after careful scrutiny of all other aspects, the competent authorities concerned had decided to assign the land to the 1st petitioner as per Ext.P-10. Ext.P-11 is the assignment proceedings issued in favour of the 2nd petitioner which led to grant of Ext.P-2 patta. In Ext.P-11 proceedings also, it is clearly found by all the authorities concerned that the land in question for which assignment was sought by the petitioner is included in the list of assignment lands. It is thereafter on fulfilling all the meticulous formalities, the authorities have recommended for grant of patta in favour of the petitioners. Ext.P-12 is the resolution dated 12.3.1997 of Madavoor Panchayath which has recommended grant of patta in favour of the 1st petitioner. Ext.P-13 is the minutes dated 18.4.1998 of the Land Assignment Committee (LAC) in relation to various lands and item No.14 of Ext.P- 13 minutes is the one in favour of Ext.P-2 issued to the 2nd petitioner.
Ext.P-14 is the resolution dated 8.6.2000 of the Madavoor Grama Panchayath recommending issuance of patta in favour of the 1st petitioner. Ext.P-15 dated 9.2.2000 and Ext.P-16 dated 16.9.1996 are ::6::
W.P(C).No.30041 Of 2008 the notices issued under Rule12(1) of the Kerala Land Assignment Rules in respect of the assignment applications of the petitioners which ultimately led to Ext.P-1 and Ext.P-2 pattas. Exts.P-15 and P-16 would show that necessary notices under Rule 12(1) were issued inviting objections against assignment of land in favour of the petitioners from the public. Ext.P-17 is the mahazar dated 29.1.2000 of the Village Officer concerned in relation to the land covered by Ext.P-1 which led to the assignment proceedings, assignment order and the patta in favour of the 1st petitioner. In Ext.P-17 it is inter alia clearly noted that the land in question (which led to Ext.P-1 patta in favour of the 1st petitioner) is included in the list of assignable lands and it is not forest land and that there are no forest land in the boundaries of that property. Further, it is clearly stated in Ext.P-17 that the 1st petitioner has constructed a building in the land and that he is in possession of the land for more than ten years. Ext.P-17(2) is the plan prepared by the Village Officer concerned in respect of the land covered by Ext.P-1 which clearly shows that the property in question are bounded on all four sides by other private properties. It may be noted that Ext.P-18 is the application submitted by the 1st petitioner which led to the issuance ::7::
W.P(C).No.30041 Of 2008 of patta in favour of the 1st petitioner. In the endorsement of Ext.P-18 application, the Village Officer has certified that the land in question has been in the possession of the petitioner and that he is residing in the building constructed in that land. Ext.P-19 is the mahazar dated 6.6.1996 prepared by the Village Officer in respect of the land for which patta was later granted to the 2nd petitioner as per Ext.P-2. Ext.P-19 mahazar also clearly shows that the land in question is bounded on all four sides by other private properties. Ext.P-19(3) is the plan of the properties in question which shows the exact lie and nature of the property as well as the fact that the property is bounded on all sides by other properties. Ext.P-20 is the assignment order dated 13.7.2000 in relation to 1st petitioner which ultimately led to the issuance of Ext.P-1 patta in his favour.
4. Heard Sri.O.V.Maniprasad, learned counsel for the petitioners and the learned Government Pleader appearing for the respondents.
5. The factual aspects clearly and cogently pleaded by the petitioners need not be reiterated. Even according to the respondents, Sec.9(2) notification under the Kerala Survey and Boundaries Act, 1964, ::8::
W.P(C).No.30041 Of 2008 was published in this case on 2.11.1994 and Sec.13 notification was published on 9.6.1998. The submission of applications for assignment as well as the assignment proceedings, the assignment order and the grant of patta in both these cases have occurred after the publication of aforesaid Sec.9(2) and Sec.13 notifications. This fact is clearly admitted by the respondents in para 3 of the counter affidavit dated 30.1.2010 filed by the 3rd respondent. In Ext.P-10 assignment proceedings (which led to Ext.P-1), it is clearly stated that the competent officers concerned who dealt with the assignment proceedings have examined the BTR whereupon it was found that the land in question is barren land and it is included in the list of assignable lands. Similar findings are also made in Ext.P-11 proceedings in the case for the land covered by Ext.P- 2 patta. In Ext.P-17 mahazar it is clearly stated that the land in question (covered by Ext.P-1) is included in the list of assignable lands and that it is not forest land and that there are no forest lands in the boundaries of that property. It is further recorded therein that the 1st petitioner has been in possession of the property and that he has been residing in the building constructed therein for which Panchayath has also issued demand note. Ext.P-17(2) is the plan prepared by the ::9::
W.P(C).No.30041 Of 2008 Village Officer which also evidences the fact that the property is bounded on all four sides by private properties. Ext.P-19 and the plan attached thereto would also show similar factual aspects as to the land covered by Ext.P-2. It is after meticulous and careful scrutiny of the materials and after notifications and after inviting no objection against assignment of land in favour of the petitioner, assignment proceedings could be issued in favour of the petitioners which led to the assignment orders and ultimately to the grant of pattas to the petitioners as per Exts.P-1 and P-2. These pleadings of the writ petitioners, more particularly, in the reply affidavit has not in any way been controverted in the counter affidavit of the respondents. It is not known under what circumstances the survey authorities have recorded in the olf survey records that the land in question is reserve forest or as to how even resurvey records have shown that the land in question is forest land. The petitioners' counsel vehemently urge that this is a clear case of a mistake committed by the survey authorities concerned in the old survey records as well as in the resurvey records. Prima facie, on a meticulous examination of all the documents produced in this case it can be seen that the authorities concerned however followed the ::10::
W.P(C).No.30041 Of 2008 procedure in all its rigour and meticulous compliance of the several procedural and other crucial aspects of the matter which led to the grant of pattas in this case. In the light of these aspects, it is ordered that the petitioners will be at liberty to file a detailed representation before the additional 5th respondent-District Collector, Thiruvananthapuram, pointing out their grievances. The petitioners can ventilate their grievances in the matter before the 5th respondent- District Collector and produce all the documents produced in this case as well as any other documents which they may have. This shall be done by the petitioners within a period of three weeks from the date of receipt of a certified copy of this judgment. On receipt of such representation along with a certified copy of this judgment, the 5th respondent-District Collector will ensure that necessary enquiry is conducted in the matter through an officer not below the rank of Revenue Divisional Officer calling for the necessary old survey records and resurvey records as well as the originals of entire documents produced in this case for its appraisal and scrutiny and ascertain as to how the old survey records and resurvey records show the land in question as forest land or reserve forest as the case may be. The ::11::
W.P(C).No.30041 Of 2008 Revenue Divisional Officer will also get necessary explanation and details from the 3rd respondent-Superintendent of Resurvey, Thiruvananthapuram and the Taluk Surveyor concerned regarding the entries in the old survey records and the new survey records. The RDO will also conduct a site inspection of the properties of the petitioners and the neighbouring properties and submit a detailed report to the 5th respondent-District Collector, with copy to the petitioners. If the District Collector on such enquiry is convinced that the entries happened to be a mistake and that the petitioners have been granted assignment proceedings in their favour as lands in question are included in the list of assignable lands, then the District Collector will issue necessary directions to ensure that the mistake is corrected and to ensure the reception of the land tax from the petitioners without any further delay. On the other hand, if the District Collector is of the considered opinion that further detailed steps are to be taken in the matter, then he will be at liberty to conduct a joint survey of the land of the petitioners consisting of competent revenue officers and competent forest officers. If such a joint survey is to be done, the same should be done within a period of two months from the date of receipt of a ::12::
W.P(C).No.30041 Of 2008 certified copy of this judgment. Such a joint survey should be conducted with necessary notice to the petitioners and the report of the joint survey should be submitted to the District collector and a copy of the same shall be made available to the petitioners and after granting a reasonable opportunity of being heard to the petitioners either in person or through their authorised representative. The District Collector will thereafter take a final decision in the matter on the request of the petitioners for appropriate remedial action and for reception of land tax from the petitioners. Final orders in this regard shall be passed by the District Collector within a period of two months thereafter or at any rate, within an outer time limit of five months from the date of production of a certified copy of this judgment.
With these observations and directions, the Writ Petition (Civil) stands finally disposed of.
ALEXANDER THOMAS, Judge.
bkn/-