Dismissed

K.Raghavan v. the Tahasildar,Kasaragod

Kerala HC12 Apr 2012WP(C)/21178/2006

Case brief

AI extract

What is this about?

High Court dismissed the writ petition challenging the refusal of government land lease renewal. The Court dismissed the plea while directing authorities to consider a future application for the specific portion of land adjoining the petitioner's plot.

What did the court decide?

Writ petition dismissed; Court reserved petitioner's claim for lease of specific land adjacent to his allotted plot for future consideration by authorities.

K.Raghavan Vs the Tahasildar,Kasaragod — Land Acquisition | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

¶4

THURSDAY, THE 12TH DAY OF APRIL 2012/23RD CHAITHRA 1934

¶5

WP(C).No. 21178 of 2006 (U)

¶6

PETITIONER(S):

¶7

(*) K. RAGHAVAN, S/O. KRISHNAN,

¶8

KASARAGOD KASBA KADAPPURAM, BEACH ROAD, KASARAGOD.(DIED.)

¶9

PETITIONERS 2 TO 10:

¶10

SAROJINI, W/O.RAGHAVAN,

¶11

ASHOKAN, S/O.RAGHAVAN,

¶12

LALITHA SURESH, D/O.RAGHAVAN,

¶13

BANU BALAN, D/O.RAGHAVAN,

¶14

KANCHANA GANGADHARAN, D/O.RAGHAVAN,

¶15

PRAKASH, S/O.RAGHAVAN,

¶16

CHITHRA PRASANTHAN, D/O.RAGHAVAN,

¶17

SHAKEELA VENUGOPAL, D/O.RAGHAVAN,

¶18

RAGINI DINESAN,M D/O.RAGHAVAN,

¶19

ALL ARE RESIDING AT KASARAGOD KASABA KADAPRAM, BEACH ROAD, KASARAGOD.

¶20

(*)PETITIONERS 2 TO 10 ARE IMPLEADED AS PER ORDER DATED 24.10.2007 IN I.A.NO.13967/2007.

¶21

BY ADV. SRI.P.K.MUHAMMED

¶22

RESPONDENT(S):

¶23

THE TAHASILDAR, TALUK OFFICE, KASARAGOD.

¶24

DISTRICT COLLECTOR, KASARAGOD.

¶25

WP(C) NO.21178/2006

¶26

¶27

COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM.

¶28

K.C. NANDANAN, S/O. LATE CHATHU KRISHNAN, `SARO', ANANGOOR VIDYANAGAR, KASARAGOD.

¶29

R1 TO R3 BY GOVERNMENT PLEADER SHRI ABDUL SHUKOOR R4 BY ADV. SRI.N.L.KRISHNAMOORTHY R4 BY ADV. SRI.K.LAKSHMINARAYANAN R4 BY ADV. SMT.S.SUJA R4 BY ADV. SMT.SATHYA SHREEPRIYA

¶30

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶31

WP(C) NO.21178/2006

¶32

APPENDIX

¶33

PETITIONERS' EXHIBITS:

¶34

EXT.P1 TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER BY THE RESPONDENT DATED 19.10.1983

¶35

EXT.P2 TRUE COPY OF THE ORDER PASSED BY THE RESPONDENT IN HIS PROCEEDINGS REFERENCE NO.E2-19757/83 DATED 24.10.1983

¶36

EXT.P3 TRUE COPY OF THE ORDER OF GRANT OF LEASE OF THE PETITIONER BY THE RESPONDENT DATED 27.10.1983

¶37

EXT.P4 TRUE COPY OF THE APPLICATION FOR RENEWAL OF LEASE FILED BY THE PETITIONER BEFORE THE RESPONDENT DATED 7.6.2002

¶38

EXT.P5 TRUE PHOTOGRAPH OF THE TEMPLE CONSTRUCTED BY THE PETITIONER IN EXT.P2 PROPERTY

¶39

EXT.P6 TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER BY THE RESPONDENT DATED 26.4.2003

¶40

EXT.P7 TRUE COPY OF THE APPLICATION FOR ASSIGNMENT OF GOVERNMENT LAND SUBMITTED BY THE PETITIONER DATED 15.3.2003

¶41

EXT.P8 TRUE COPY OF THE JUDGMENT IN WP(C) 37799/2003 BY THIS COURT DATED 28.1.2004

¶42

EXT.P9 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 12.11.2004 EXT.P10 TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 20.04.2005 EXT.P11 TRUE COPY POF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 28.11.2005 EXT.P12 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT

¶43

EXT.P13 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED ...............12.2005

¶44

EXT.P14 TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 28.06.2006

¶45

RESPONDENTS' EXHIBITS:

¶46

EXT.R4(a) TRUE COPY OF THE COMPROMISE PETITION DATED 19.08.1984 IN OS NO.89/79 IN IA 1013/84 FILED BEFORE THE SUBORDINATE JUDGES COURT, KASARAGOD.

¶47

EXT.R4(b) TRUE COPY OF THE PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER

¶48

EXT.R4(c) & R4(d) TRUE COPY OF THE JUDGMENT AND DECREE IN OS NO.204/04 BEFORE THE MUNSIFF COURT, KASARAGOD

¶49

EXT.R4(e) TRUE COPY OF THE ORDER OF THE DISTRICT COLLECTOR IN PROCEEDINGS NO.GS-714/03 DATED 28.11.2005

¶50

EXT.R4(f) TRUE COPY OF THE PROCEEDINGS OF THE COMMISSIONER OF LAND REVENUE IN LR J2-55901/05 DATED 28.06.06

¶51

THOMAS P. JOSEPH, J.

¶52

W.P.(C). No.21178 of 2006 --------------------------------------

¶53

Dated this the 12^th day of April, 2012.

¶54

JUDGMENT

¶55

Petitioner preferred an application for renewal of lease of Government land comprised in R.S.No.4/1 of Kasaragod Kasba Village. The Tahsildar, Kasaragod dismissed that application. That order was confirmed by the District Collector, Kasaragod as per order No.G5-714/2003 dated 28.11.2005. The Commissioner of Land Revenue, by Ext.P14, order dated 28.06.2006 refused to interfere with the said order. Petitioner has filed this writ petition under Article 226 of the Constitution to quash Ext.P14, order and to allow his application for renewal of lease or to pass such other order or direction as the circumstances warranted.

¶56

Petitioner claims that he is in possession and enjoyment of 19 cents of Government land in R.S.No.4/1 of Kasaragod Kasba Village since the last 54 years. He claims that he has effected improvements in the said property. He constructed a temple in the said property about 33 years back. He applied for lease of the said property and the 1^st respondent, the Tahsildar, Kasaragod as per Ext.P1, notice dated 19.10.1983 demanded him to pay lease amount for 1983-84 and advance rent for 1984-85. By Ext.P2, petitioner paid the rent demanded in Ext.P1. 1^st respondent passed Ext.P3, order dated 27.10.1983 granting lease of the above said 19 cents in favour of petitioner. Petitioner

¶57

WP(C) No.21178/2006 2

¶58

applied for renewal of the lease as per Ext.P4, application dated 07.06.2002 (notwithstanding that the period of lease granted by Ext.P3, order expired in the year, 1985). Petitioner also made an application to the 1^st respondent for assignment of the said land as per Ext.P7 dated , 15.03.2003.

¶59

Since there was no consideration of Exts.P4 and P7, applications by the appropriate authority, petitioner filed W.P.(C) No.37799 of 2003 and obtained a direction to the 1^st respondent to dispose of Exts.P4 and P7, applications as early as possible.

¶60

1^st respondent by Ext.P9, order dated 12.11.2004 rejected the application for (renewal of) lease and directed the Village Officer to resume the land on execution of a mahazar and eye sketch of the land concerned and immediately report compliance to the Tahsildar.

¶61

Ext.P9, order was ultimately challenged in appeal preferred to the 3^rd respondent, the Commissioner of Land Revenue. By Ext.P10, order the Commissioner of Land Revenue remitted the appeal to the 2^nd respondent , the District Collector, Kasaragod for fresh decision. The 2^nd respondent by Ext.P11, order dated 28.11.2005 dismissed the appeal which was again challenged before the 3^rd respondent, the Commissioner of Land Revenue in appeal. That appeal was dismissed by Ext.P14, order dated 28.06.2006 which is under challenge in this Writ Petition.

¶62

¶63

WP(C) No.21178/2006

¶64

It is contended by the learned counsel that petitioner has been in continuous possession and enjoyment of the land in question since the last several years, effecting valuable improvements and constructing a temple and that the said fact was not taken into account by the authorities concerned. It is also contended by the learned counsel that the 19 cents in R.S.No.4/1 concerning which the applications for renewal/assignment were made, is necessary for the beneficial enjoyment of the property allotted to the share of appellant as per final decree in O.S.No.89 of 1979. Learned counsel contended that in the meantime, the 4^th respondent, brother of petitioner made a claim for lease/assignment of 12 cents which abuts the land allotted to his share as per final decree in O.S.No.89 of 1979, that application was allowed and against which petitioner has preferred an appeal before the Commissioner of Land Revenue. The Commissioner of Land Revenue by letter No.LR(J2)26503/2007 (1) dated 24.03.2009 has held that the Port Trust Authorities had no right to grant lease/assignment of the land in question in favour of the 4^th respondent and relegated petitioner to his remedy before the District Collector, Kasaragod to rectify the procedural irregularity (allegedly) occurred in the order in favour of the 4^th respondent. Learned counsel has given me a copy of the said letter dated 24.03.2009.

¶65

In response, learned counsel for the 4^th respondent contended that petitioner obtained lease of 19 cents in R.S.No.4/1 at a time when the final decree in O.S.No.89 of 1979 was not passed and that grant of lease of 19 cents

¶66

¶67

WP(C) No.21178/2006

¶68

was for the beneficial enjoyment of the entire property on behalf of the family, portions of which were allotted to the 4^th respondent and another brother, Vijayan as per final decree in O.S.No.89 of 1979. Hence petitioner cannot contend that for the beneficial enjoyment of the entire family property, the entire 19 cents in R.S.No.4/1 is required. It is also contended by the learned counsel that it is incorrect to say that petitioner constructed temple in the 19 cents in R.S.No.4/1. According to the learned counsel, the temple is a public temple over which public have a right and they are gaining access to the temple along the road on the western portion of the 19 cents in R.S.No.4/1. It is also contended by the learned counsel that there is a valid order obtained by the 4^th respondent concerning the Government land in R.S.No.4/1 and the said order remains in force. Learned counsel contends that it is not necessary or possible for this Court to go into the correctness of the order in favour of the 4^th respondent since that order is not under challenge in this Writ Petition. A further contention that 4^th respondent has raised is that without making use of that part of Government land in R.S.No.4/1 it is not possible to the 4^th respondent to have ingress and egress from the public road to the plot allotted to him as per final decree in O.S.No.89 of 1979.

¶69

The scope of this Writ Petition is only as regards Ext.P14, order passed by the Commissioner of Land Revenue upholding Ext.P11, order passed by the District Collector confirming Ext.P9, order passed by the Tahsildar.

¶70

¶71

WP(C) No.21178/2006

¶72

It is seen from Ext.P14, order that the Commissioner of Land Revenue has referred to the entire facts and circumstances and the various reports before her. Ext.P14, order states that the lease originally granted by Ext.P3, order dated 24.10.1983 was for the period from 01.04.1983 to 31.03.1984 and that too, for the beneficial enjoyment of the adjacent property held by the petitioner and comprised in R.S.No.4/4. Ext.P14, order further says that after 31.03.1984 (by which time the lease granted as per Ext.P3, order expired) petitioner neither filed any application for renewal of lease nor remitted the rent. It is 19 years after the expiry of period of lease that petitioner chose to prefer Ext.P4, application on 07.06.2002 for renewal of the lease. Petitioner also preferred Ext.P7, application dated 15.03.2003 for assignment of the land. The District Collector reported to the Commissioner of Land Revenue, that when the lease was granted petitioner was in enjoyment of the adjacent property (which is the subject matter of O.S.No.89 of 1979) and that petitioner is not in possession of Government land (obviously since the Village Officer resumed the land pursuant to Ext.P9, order dated 12.11.2004 passed by the Tahsildar. Local inspection conducted by the Subordinate Officers revealed that the 4^th respondent who got 2/3^rd shares in the family property as per final decree in O.S.No.89 of 1979 had objected to the renewal of lease/assignment in favour of petitioner and that the temple situated in the Government land is an old public temple though some renovation work was done in the year, 2003. Appellant had not applied for renewal of lease within time. Hence he was found

¶73

¶74

WP(C) No.21178/2006

¶75

not eligible for renewal. A further fact reported to the Commissioner of Land Revenue is that since the land belonged to the Port Trust Department, their consent was also needed.

¶76

I must notice that Ext.P1, notice issued by the 1^st respondent demanding payment of lease amount and advance rent, payment made by the petitioner as per Ext.P2, and Ext.P3, order dated 27.10.1983 granting lease of Government land in favour of petitioner come before the final decree was passed in O.S.No.89 of 1979 on 20.10.1984. There is therefore justification in the contention of the 4^th respondent that the lease granted in favour of petitioner was for the beneficial enjoyment of the entire family property regarding which the final decree was passed on 20.10.1984.

¶77

A copy of plan prepared by the Advocate Commissioner in the final decree proceedings in O.S.No.89 of 1979 is appended to this Writ Petition. Plots 4/4A and 4/2A in the said plan (Ext.C3 in the final decree proceedings in O.S.No.89 of 1979) are allotted to the petitioner. Plot 4/4A is situated on the immediate east of the northern portion of 19 cents of Government land in R.S.No.4/1. Plot 4/2A is on the further east of plot 4/4A. The 4^th respondent is allotted plot 4/4B situated on the immediate south of plot 4/4A and plot 4/2B on the immediate east of plot 4/4B. Vijayan, another brother of petitioner and the 4^th respondent is alloted plots 4/4C and 4/2C situated on the south of the plots allotted to the 4^th respondent. It is also seen from the said plan that the

¶78

¶79

WP(C) No.21178/2006

¶80

Government land comprised in R.S.No.4/1 is situated on the west of plots 4/4A (alloted to the petitioner), 4/4B (allotted to the 4^th respondent) and plot 4/4C (allotted to Vijayan).

¶81

What I understand from the submission made by the learned counsel for petitioner is that the lease granted in favour of 4^th respondent is concerning the Government land abutting plots 4/4B and 4/4C (in the plan) allotted to the share of 4^th respondent and Vijayan in the final decree in O.S.No.89 of 1979 and that portion of Government land in R.S.No.4/1 on the immediate west of plot 4/4A in the plan (allotted to the petitioner in the final decree) and corresponding to the width of that plot has not been leased to the 4^th respondent or anybody else. I proceed further, on that basis.

¶82

Now that there is no challenge in this writ petition against the order granting lease to the 4^th respondent, it is not necessary to go into that question in this petition. If petitioner intends to challenge the said order, it is open to him to do so as provided under the law.

¶83

So far as Ext.P14, order is concerned, in the light of the facts and circumstances stated in the said order, I do not find reason to interfere.

¶84

Learned counsel for petitioner has requested that in the view this Court has taken with respect to Ext.P14, order, right of petitioner to apply for lease/assignment of that part of Government land in R.S.No.4/1 on the

¶85

¶86

WP(C) No.21178/2006

¶87

immediate west and abutting plot 4/4A allotted to the petitioner in the final decree in O.S.No.89 of 1979 be reserved. Learned counsel contends that it is seen from Ext.C3, plan in the final decree in O.S.No.89 of 1979 that petitioner is gaining access to plot 4/4A through that portion of the Government land situated on the immediate west of the said plot. Though, this is disputed by the 4^th respondent, it is not necessary for me to decide that question in this proceeding in the light of the direction I propose to make in this writ petition.

¶88

Learned Government Pleader appearing for respondents 1 to 3 has contended that this Court may not pass any order directing the authorities to assign/lease the Government land and that the matter may be left open to the decision of the authorities concerned, as per the laws in force. I am inclined to accept that submission of the learned Government Pleader.

¶89

Resultantly this writ petition is dismissed with the following observations:

¶90

i. If petitioner intends to challenge/has already challenged the order granting lease in favour of the 4^th respondent, it is open to him to challenge that order as provided under the law.

¶91

ii. If petitioner is desirous of applying for lease/assignment of that part of the Government land in R.S.No.4/1 abutting plot 4/4A allotted to the petitioner in the final decree in O.S.No.89 of 1979 and situated on the immediate west of plot 4/4A corresponding to the width of the said plot, it is open to the petitioner, if

¶92

¶93

WP(C) No.21178/2006

¶94

he is otherwise eligible and entitled to make a request to the authorities concerned for lease/assignment of that part of the Government land referred to above, in accordance with the law and if any such application is made, it is open to the appropriate authorities to consider that application and pass appropriate orders in accordance with the law in force governing lease/assignment and concerning the Government land concerned.

¶95

iii. In case any such application is preferred by the petitioner, the appropriate authorities shall hear the 4^th respondent and other interested parties if any, also before passing any order on such application.

¶96

iv. So far as those portions of the Government land in R.S.No.4/1 abutting plots 4/4B and 4/4C allotted to the 4^th respondent and Vijayan as per the final decree in O.S.No.89 of 1979 are concerned, I make it clear that it will be open to them also to make similar claims for lease/assignment as the case may be and if any such claims are preferred, the same shall be decided by the appropriate authority as above stated, after hearing petitioner and other persons interested if any, as well.

¶97

¶98

WP(C) No.21178/2006

¶99

v. I make it clear that this Court has not made any indication as to how the application/claim if made is to be disposed of by the authority concerned and that it is entirely within the power of the authority concerned to decide on the entitlement/eligibility of the claimant concerned and with reference to all laws, rules, etc. in force governing such lease/assignment and concerning the land in question.

¶100

All pending interlocutory applications will stand dismissed.

¶101

THOMAS P.JOSEPH, Judge.

¶102

cks

K.Raghavan v. the Tahasildar,Kasaragod

Case brief

What is this about?

What did the court decide?

K.Raghavan v. the Tahasildar,Kasaragod

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Mukundan Vs Nalini Amma

Jaseentha Vs Annie

Kakkoth Hamsa Vs Abdul Rahim (Died)

Louis Vs Rosily

Sarojini Raghavan & Others Vs K.Nandanan

Muhammed Thayyib and Others Vs a.P.Abdul Khader Maulavi and Others