Kerala High Court
Bhaskaran vs State Of Kerala on 10 October, 2018
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940
WP(C).No. 18290 of 2014
PETITIONER/S:
1 BHASKARAN,
AGED 62 YEARS,
S/O.KUNJAN ENOS, T/C N. 3/567,
PARAYATTUKULAVARAMBIL VEEDU, MUTTADA P.O.,
KURAVANKONAM, TRIVANDRUM.
2 THANKACHAN,
AGED 57 YEARS,
S/O.KUNJAN ENOS, PARAYATTUKULAVARAMBIL VEEDU,
MUTTADA P.O., KURAVANKONAM, TRIVANDRUM.
BY ADV. SRI.SABU S.KALLARAMOOLA
RESPONDENT/S:
1 STATE OF KERALA,
DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM, REP. BY ITS SECRETARY - 695 001
2 THE DISTRICT COLLECTOR,
COLLECTORATE,
THIRUVANANTHAPURAM DISTRICT - 695 001.
3 TAHSILDAR,
THIRUVANANTHAPURAM TALUK, TALUK OFFICE,
THIRUVANANTHAPURAM - 695 001.
4 CORPORATION OF THIRUVANANTHAPURAM,
THIRUVANANTHAPURAM, REP. BY ITS SECRETARY - 695 001.
5 THE SECRETARY,
CORPORATION OF THIRUVANANTHAPURAM,
THIRUVANANTHAPURAM - 695 001.
6 THE CIRCLE INSPECTOR OF POLICE,
PEROORKADA CIRCLE, PEROORKADA,
THIRUVANANTHAPURAM - 695 005.
W.P.(C) No.18290 of 2014 2
7 THE VILLAGE OFFICER,
KOWDIAR VILLAGE, KOWDIAR,
THIRUVANANTHAPURAM - 695 003.
8 CHANDRIKA,
MAYOR, CORPORATION OF THIRUVANANTHAPURAM,
THIRUVANANTHAPURAM - 695 001.
BY ADVS.
R1 TO R3, R6 & R7 BY SMT. RAJI T.BHASKER, GOVERNMENT
PLEADER
R4, R5 & R8 BY SRI.N.NANDAKUMARA MENON (SR.)
SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.18290 of 2014 3
JUDGMENT
This writ petition is filed by the petitioners seeking the following reliefs:
"i) Issue a writ of mandamus or any other appropriate writ, order or direction to the respondents 4 to 8 and their men, servant or agent from forcibly evicting petitioners from 14 cents of land comprised in Sy.No.2787 of Kowdiar Village;
ii) Issue a writ of mandamus or any other appropriate writ, order or direction to the respondents 1 to 5 and their men, servant or agent not to make any construction or structure alteration or changes in any manner in the petitioners 14 cents of land comprised in Sy.No.2787 of Kowdiar Village without the process of law;
iii) Issue a writ of mandamus or any other appropriate writ, order or direction to the respondents 1 to 3 to complete the proceedings 1 to 3 to complete the proceedings to assign 14 cents of land comprised in Sy.No.2787 of Kowdiar Village to the petitioners by considering Exhibits P10(a) and
(b) also;
iv) Declare that the petitioners are entitled for damages from the respondents 4, 5, and 7, 8 caused by them; and
v) Issue such other and further orders or directions this Honourable Court deem fit and proper".
2. Material facts for the disposal of the writ petition are as follows:
3. According to the petitioners, they have possessory right over 14 cents of land comprised in Survey No.2787 of Kawdiar Village. The property was obtained by the petitioners from their father, Kunjan W.P.(C) No.18290 of 2014 4 Enos. The said land is in the possession and enjoyment of the 1st petitioner and their predecessors for the past 100 years, and they are remitting land tax from 1965 onwards. Possession certificate is also issued by the 3rd respondent. However, on 11.07.2014, at the leadership of the 8th respondent, some strangers who are the followers of a political party, encroached into the petitioners' property and demolished a part of his residential building and also cut down trees and plantations in the land claiming that the entire property is 'puramboke', and the 4th respondent Corporation alone is having right over the same. After demolishing the building partly, they laid foundation stone in the property for constructing a building allegedly to start an Anganwadi by the Corporation. At the time of encroachment, the 8 th respondent was accompanied by respondents 6 and 7 also, i.e., the Circle Inspector of Police, Peroorkada and the Village Officer, Kowdiar Village. But, no notice was issued to the petitioners either by the Corporation or by any authorities.
4. On 16.07.2014 also, workers allegedly engaged by the Corporation continued the construction work by threatening the petitioners. Therefore, according to the petitioners, the action at the instance of the 8th W.P.(C) No.18290 of 2014 5 respondent is with a malafide intention under the instruction of a political party. Even though petitioners approached the 2nd and 5th respondents, no action is initiated against the miscreants so far.
5. A counter affidavit is filed by the 2nd respondent, denying the allegations and claims and demands raised by the petitioners. Among other contentions, it is stated that, the property situated in Sy.No.2787 of Kowdiar Village was selected by the Corporation in its session held on 29.12.2008, for slum improvement project of KSUDP. Once the plan was launched on 29.05.2014, the City Steering Committee of the Corporation decided to construct an Anganwadi and a work shed in the revenue land vested with the Corporation. However, the petitioners and their associates and henchmen illegally obstructed the revenue and Corporation authorities while the measurement of land was being carried out on 11.07.2014. Hence, the Mayor, Thiruvananthapuram and the officials and Ward Councillors visited the site intending to avert any untoward incident.
6. The claim of the petitioners over 14 cents of land specified above is stoutly denied. A detailed enquiry was conducted in the matter, consequent to the W.P.(C) No.18290 of 2014 6 directions issued in W.P.(C) No.18290 of 2014, relying upon the revenue records and survey records, through the Village Officer and the Taluk Surveyor. The enquiry reveals that an extent of 23 cents comprised in Survey No.2787 of previous Madathuvilakam Village (Present Kowdiar) is 'Kulam Puramboke' as per settlement register. The Thiruvananthapuram Corporation authorities have requested to survey and demarcate and fix boundary for the extent of 23 cents of 'Kulam Puramboke' in Survey No.2787 of Kowdiar Village for the construction of the proposed 'Anganwadi' under the KSUDP Scheme. The Taluk Surveyor had surveyed the land in question, in accordance of survey records and reported that when boundary was fixed in the puramboke land comprised in Survey No.2787, 2.16 Ares was in the illegal possession of the 2nd petitioner, on which a house was constructed and the 2nd petitioner is residing in it. Sixty-five sq. metres is demarcated as Road and 2.16 Ares still remain as 'Kulam' and the remaining 4.34 Ares stand out as not forming part of Kulam. Hence, the entire land is marked as puramboke as per the survey done by the Taluk Surveyors. Therefore, the unauthorized encroachment by the 2nd petitioner is to be evicted in accordance with the provisions of the Kerala Land Conservancy Act. A copy of W.P.(C) No.18290 of 2014 7 the Survey Plan is produced as Ext.R2(a).
7. It is also submitted that, the Village Officer, Kowdiar has reported that, on verification of the records produced by Thankachan, it is seen that one Kunjan Enos has remitted "Kuthakapattam" for an amount of Rs.18.50 as per receipt No.KP 1/70 dated 06.11.1965. Smt. Chellamma, mother of the 2nd petitioner was issued with Record of Rights for an extent of 5 cents as per order dated 03.03.2001 and Record of Rights for 4 cents to Bhaskaran, i.e., the 1st petitioner. As per the Record of Rights dated 03.03.2001, 8 conditions are set forth in G.O.(MS) No.440/99/RD dated 09.11.1999. Among the conditions, the 1st condition is that, the person who possesses puramboke land should not own landed property elsewhere. Condition No.3 states that, Record of Rights does not convey ownership of the puramboke land. Condition No.7 stipulates that, only those who possess the puramboke land before 01.01.1992 are eligible for the Record of Rights, and condition No.8 states that the Taluk Tahsildar will be the designated authority to award Record of Rights. The Special Tahsildar (Land Assignment) is also authorized to award Record of Rights for the land under his jurisdiction.
W.P.(C) No.18290 of 2014 8
8. Condition No.2, in accordance with the Government Order dated 09.11.1999, specifies that, Record of Rights can be issued only to the persons who have constructed house and residing in the road, 'puzha', 'kulam', 'thodu' and canal puramboke. The 1st petitioner, who got Record of Rights as per the order dated 03.03.2001, even though has no house in the kulam puramboke land, he got Record of Rights and is not residing in the above land. Now he is residing at T.C.8/250 in the ownership of his wife, Smt. Vijayamma, in an extent of 01.81 Ares of land comprised in Re-survey No.16, Block No.53 of Thirumala Village. The 1 st petitioner is the brother of the 2nd petitioner and he has got Record of Rights for 4 cents of land. The land is contiguous to the land of the 2nd petitioner. Therefore, it can be seen that, petitioners were enjoying 9 cents of land having Record of Rights. Thus, the 2nd petitioner is the de facto Record of Right holder for 9 cents of land. It is also submitted that, the 1st petitioner has no claim on the land as he has violated condition No.1, since he has other landed property elsewhere. Furthermore, Record of Rights shall be given only to those who reside in the puramboke land of the said Government Order. The Corporation has taken possession of the 14 cents of the W.P.(C) No.18290 of 2014 9 land and not taken the land occupied by the 2nd petitioner.
9. It is further submitted that, the 2nd petitioner is residing in the house constructed in the land allotted to Smt. Chellamma, mother of the 2nd petitioner, as per Record of Rights dated 03.03.2001. The Village Officer, Maranalloor has reported that the 2nd petitioner and his wife are in joint possession of an extent of 0.81 Ares of land comprised in Re-survey No.291/26-2 of Maranalloor Village as per TP.No.3190 of the said Village. A house named 'Girija Bhavan' with Door No.MP/V/1001 of Maranalloor Grama Panchayat stands in the name of Girija, wife of the 2nd petitioner. Smt. Rajamma, mother of Girija is residing in the above house and Sri.Thankachan and Girija are residing at Kowdiar Village as per the report of the Village Officer, Maranalloor.
10. Therefore, according to the 2nd respondent, the 1st petitioner was holding Record of Rights in violation of the conditions set forth in the Government Order dated 09.11.1999. Hence, direction was issued to the Village Officer, Kowdiar to issue notice to cancel the Record of Rights and to resume the Government land. The authority to cancel the Record of Rights is the Revenue Divisional Officer and hence a detailed report was submitted to the W.P.(C) No.18290 of 2014 10 RDO on 09.07.2014 to cancel the Record of Rights issued to the 1st petitioner. Other contentions are also raised.
11. A reply affidavit is also filed by the petitioners, reiterating the stand adopted in the writ petition and disputing the contentions contained in the counter affidavit that petitioners are having other extents of properties, so as to decline the claims raised by the petitioners on the basis of Record of Rights.
12. I have heard learned counsel for the petitioners, learned Government Pleader as well as the learned Standing Counsel appearing for the Corporation. Perused the documents on record and the pleadings put forth by the respective parties.
13. The discussion made above would make it clear that, petitioners have a claim on the properties in question on the basis of Record of Rights issued by the authorities as per the Government Order specified above. Case of the petitioners is that, in 1979, father of the petitioners filed application seeking assignment of land as per the provisions of the Kerala Land Assignment Act. However, the application was not considered, and while so, he passed away, and thereupon, Ext.P10(a) application was submitted by the mother of the petitioners and the petitioners have also submitted an application in the W.P.(C) No.18290 of 2014 11 year 2005.
14. It is also evident that, the respondents are contending that the petitioners are not entitled to make any claim based on the Record of Rights issued, since the same are issued on the basis of certain specific conditions, and contentions are advanced that allegedly petitioners have violated the said conditions, since they are in possession of other properties. Therefore, the contention raised by the parties will show that substantial factual circumstances are to be ascertained by any of the competent officers. It is an admitted fact that the applications filed by the petitioners' father, subsequently by the mother and later by the petitioners are pending consideration before the 3rd respondent as per the provisions of the Kerala Land Assignment Act and the Rules. However, I am of the view, it is only appropriate that the issue is considered by the 2nd respondent, who is vested with ample powers under the Kerala Land Conservancy Act and the Land Assignment Act, after providing opportunity of hearing to the petitioners and the Corporation.
15. Therefore, I dispose of the writ petition, directing the 2nd respondent to consider the application submitted by the predecessor-in-title of the petitioners, W.P.(C) No.18290 of 2014 12 thereafter by the mother of the petitioners and subsequently the petitioners in the years 1979, 1985 and 2005 respectively, at the earliest, and at any rate, within three months from the date of receipt of a copy of this judgment, after providing opportunity of participation to the petitioners and another interested persons and the Corporation of Thiruvananthapuram.
16. An interim order was granted by this Court on 25.08.2014, modifying the earlier interim order granted, not to disturb the possession of the petitioners against 9 cents of property in the specified land. Till a decision is taken, the said interim order will continue to be in force.
The writ petition is disposed of accordingly.
Sd/-
SHAJI P.CHALY JUDGE W.P.(C) No.18290 of 2014 13 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF TAX RECEIPT ISSUED BY 7TH RESPONDENT FOR THE PERIOD 1965.
EXHIBIT P1(A) ENGLISH TRANSLATION OF EXT.P1.
EXHIBIT P2 TRUE COPY TAX RECEIPT ISSUED BY 7TH RESPONDENT FOR THE PERIOD 1995.
EXHIBIT P2(A) ENGLISH TRANSLATION OF EXT.P2.
EXHIBIT P3 TRUE COPY OF LETTER DATED 11.6.1985 OF THE 4TH RESPONDENT.
EXHIBIT P3(A) ENGLISH TRANSLATION OF EXT.P3.
EXHIBIT P4 TRUE COPY OF LETTER DATED 25.3.1985 OF THE CHIEF TOWN PLANNER.
EXHIBIT P5 TRUE COPY OF LETTER DATED 7.4.2000 OF THE 3RD RESPONDENT.
EXHIBIT P5(A) ENGLISH TRANSLATION OF EXT.P5.
EXHIBIT P6 TRUE COPY OF POSSESSION CERTIFICATE DATED 3.3.2001 IN FAVOUR OF IST PETITIONER.
EXHIBIT P6(A) ENGLISH TRANSLATION OF EXT.P6. EXHIBIT P7 TRUE COPY OF POSSESSION CERTIFICATE DATED 3.3.2001 ISSUED BY 3RD RESPONDENT.
EXHIBIT P7(A) ENGLISH TRANSLATION OF EXT.P7. EXHIBIT P8 TRUE COPY OF PHOTOGRAPHS SHOWING DEMOLITION PETITIONERS HOUSE.
EXHIBIT P9 TRUE COPY OF COMPLAINT DATED 14.7.2014 TO 2ND RESPONDENT.
EXHIBIT P9(A) ENGLISH TRANSLATION OF EXT.P9. EXHIBIT P10 TRUE COPY OF COMPLAINT FILED BY THE IST PETITIONER BEFORE THE 5TH RESPONDENT WITH RECEIPT.
EXHIBIT P10(1) ENGLISH TRANSLATION OF EXT.P10.
W.P.(C) No.18290 of 2014 14EXHIBIT P10(A) TRUE COPY OF REQUEST/REMINDER FILED BY PETITIONERS MOTHER BEFORE THE 3RD RESPONDENT. EXHIBIT P10(A)(1) ENGLISH TRANSLATION OF EXT.P10(A).
EXHIBIT P10(B) TRUE COPY OF REQUEST DATED 22.2.2003 FILED BY THE IST PETITIONER. EXHIBIT P11(B)(1). ENGLISH TRANSLATION OF EXT.P10(B).
EXHIBIT P11 TRUE COPY OF MEMO DATED 22.7.12 ISSUED BY THE CORPORATION.
EXHIBIT P12 TRUE COPY OF REPLY DATED 25.7.12 OF THE PETITIONER.
EXHIBIT P13 TRUE COPY OF REPLY LETTER DATED 25.10.14. EXHIBIT P14 TRUE COPY OF REPLY LETTER DATED 22.9.14 ISSUED BY THE CORPORATION.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R2(A) TRUE COPY OF THE SURVEY PLAN.
EXHIBIT R2(B) TRUE COPY OF G.O.(MS) NO.440/99/RD DATED 09.11.1999 EXHIBIT R5(A) THE PHOTOSTAT COPY OF THE VILLAGE SKETCH SHOWING THE LIE OF THE PROPERTY, TRIVANDRUM DISTRICT, KOWDIAR VILLAGE, SURVEY NO.2787.
EXHIBIT R5(B) TRUE PHOTOSTAT COPY OF THE LETTER DATED 28.6.2014 OF THE ADDITIONAL TAHSILDAR, TVM ISSUED BY THE ADDITIONAL TAHSILDAR, TVM, TO THE SECRETARY, THIRUVANANTHAPURAM CORPORATION.
EXHIBIT R5(C) THE PHOTOSTAT COPY OF THE REPORT OF THE TALUK SURVEYOR SENT ALONG WITH EXHIBIT-R5(B) DATED 25.6.2014.
EXHIBIT R5(D) THE PHOTOSTAT COPY OF THE MINUTES OF THE COUNCIL DATED 29.12.2008 NO.3C(17) ISSUED BY THE ADDITIONAL SECRETARY, TRIVANDRUM CORPORATION.
EXHIBIT R5(E) THE PHOTOSTAT COPY OF THE MINUTES OF THE MEETING OF THE STEERING COMMITTEE HELD ON 29.5.2014 AT 3 P.M ISSUED BY THE MAYOR, TRIVANDRUM CORPORATION.
W.P.(C) No.18290 of 2014 15EXHIBIT R5(F) THE PHOTOSTAT COPY OF THE CERTIFICATE NO.A4- 5084/14 DATED 19.7.2014 ISSUED BY THE ASSISTANT SECRETARY, MARANALLOOR GRAMA PANCHAYAT.
EXHIBIT R5(G) THE PHOTOSTAT COPY OF THE CERTIFICATE OF RESIDENCE NO.R8/102936/2014 DATED 23.7.2014 ISSUED IN THE NAME OF SMT. VIJAYAMMA ISSUED BY THE SECRETARY, TRIVANDRUM CORPORATION. EXHIBIT R5(H) THE PHOTOSTAT COPY OF THE RESIDENCE CERTIFICATE ISSUED BY THE PANCHAYAT NO.A4- 5084/14 DATED 19.7.2014 ISSUED BY THE MARNALLOOR GRAMA PANCHAYAT.
EXHIBIT R5(I) THE PHOTOSTAT COPY OF THE VOTERS LIST OF THIRUMALA DIVISION, CORPORATION OF TVM. CONTAINING THE NAME OFTHE IST PETITIONER AND HIS WIFE.
EXHIBIT R5(J) THE PHOTOSTAT COPY OF THE MAHAZER PREPARED BY THE VILLAGE OFFICER, ASSISTANT ENGINEER AND ADDITIONAL SECRETARY TVM CORPORATION. EXHIBIT R5(K) THE PHOTOSTAT COPY OF THE COMPLAINT NO.C7/320/14 DATED 14.7.2014 ISSUED BY THE MAYOR, TRIVANDRUM CORPORATION.
//TRUE COPY// P.S. TO JUDGE St/-