Allowed

E. Jacob Varghese v. State of Kerala

Kerala HC2 Jul 2012WP(C)/7633/2012

Case brief

AI extract

What is this about?

Petitioners challenged an order holding their land as puramboke following a land acquisition. The High Court quashed the order, ruling that the Civil Court's final judgment in OS 140/07 bindingly established the petitioners' title, preventing the administrative authorities from re-examining the matter. The court directed the second respondent to pass consistent orders within four weeks.

What did the court decide?

Impugned order quashed; 2nd respondent directed to pass orders consistent with findings in OS 140/07 within 4 weeks.

E. Jacob Varghese Vs State of Kerala — Property and Title | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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MONDAY, THE 2ND DAY OF JULY 2012/11TH ASHADHA 1934

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WP(C).No. 7633 of 2012 (D)

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PETITIONER(S):

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1. E. JACOB VARGHESE, AGED 60 YEARS

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S/O.CHACKO KOCHUCHACKO

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ELANJIKKAL KARUKAYIL, NIRANOM VILLAGE

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THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT

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NOW RESIDING AT ELANJIKKAL HOUSE, THURUTHI P.O.

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CHANGANACHERRY, KOTTAYAM DISTRICT.

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2. E.J.JACOB, AGED 62 YEARS,

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S/O.CHACKO KOCHUCHACKO, ELANJIKKAL KARUKAYIL

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NIRANOM VILLAGE, THIRUVALLA TALUK

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PATHANAMTHITTA DISTRICT

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NOW RESIDING AT ELANJIKKAL HOUSE, THURUTHI P.O.

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CHANGANACHERRY, KOTTAYAM DISTRICT

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REPRESENTED BY POWER OF ATTORNEY HOLDER E.JACOB VARGHESE

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S/O.CHACKO KOCHUCHACKO, ELANJIKKAL KARUKAYIL

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NIRANOM VILLAGE, THIRUVALLA TALUK

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PATHANAMTHITTA DISTRICT.

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3. KUMARI SUSANNA E.J., AGED 55 YEARS, D/O.CHACKO KOCHUCHACKO, ELANJIKKAL KARUKAYIL NIRANOM VILLAGE, THIRUVALLA TALUK PATHANAMTHITTA DISTRICT NOW RESIDING AT ELANJIKKAL HOUSE, THURUTHI P.O. CHANGANACHERRY, KOTTAYAM DISTRICT REPRESENTED BY POWER OF ATTORNEY HOLDER E.JACOB VARGHESE S/O.CHACKO KOCHUCHACKO, ELANJIKKAL KARUKAYIL NIRANOM VILLAGE, THIRUVALLA TALUK PATHANAMTHITTA DISTRICT.

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BY SRI. E. JACOB VARGHESE(PARTY IN PERSON)

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tss

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W.P.(C) NO.7633/2012

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RESPONDENT(S):

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1. THE DISTRICT COLLECTOR, PATHANAMTHITTA, DISTRICT COLLECTORATE PATHANAMTHITTA P.O., PIN-689645.

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2. THE SPECIAL TAHSILDAR (L.A.) (N.H.), KOLLAM, OFFICE OF SPECIAL TAHSILDAR, L.A. (N.H.) CIVIL STATION, KOLLAM, PIN-691001.

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BY GOVERNMENT PLEADER SRI.M.MOHAMMED SHAFI

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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tss

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W.P.(C) NO.7633/2012

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APPENDIX

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PETITIONER(S) EXHIBITS

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P1:- COPY OF THE SURVEY MAP (DECREE IN OS.480/1990 OF THE HON'BLE MUNSIFF'S COURT, THIRUVALLA).

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P1(A):-COPY OF THE KICHEETU IS OS.480/1990 OF THE HON'BLE MUNSIFF'S COURT, THIRUVALLA.

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P1(B):- COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT SUBMITTED BEFORE THE VILLAGE OFFICER, NIRANAM.

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P1(C):- COPY OF THE REPLY TO EXT.P1(B).

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P2:- COPY OF THE AWARD NOTICE FROM SPECIAL TAHSILDAR LA,NH, ALAPPUZHA.

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P2(A):- COPY OF THE LETTER DATED 7/9/88 ISSUED BY THE SPECIALTAHSILDAR, LA (NH), ALAPPUZHA.

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P3:- COPY OF THE JUDGEMENT IN OS.140/07 OF THE HON'BLE SUB COURT, THIRUVALLA.

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P4:- COPY OF THE APPLICATION DATED 1/10/2010 SUBMITTED BEFORE THE RESPONDENTS.

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P5:- COPY OF THE ADVOCATE REMINDER NOTICE DATED 16/11/2010.

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P6:- COPY OF THE REPLY LETTER OF 2ND RESPONDENT DATED 16/3/2011.

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P7:- COPY OF THE WPC.11628/11.

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P8:- COPY OF THE COUNTER AFFIDAVIT DATED 16/7/2011 SUBMITTED BY THE 2ND RESPONDENT IN WPC.11628/11.

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P8(A):- COPY OF THE REPLY AFFIDAVIT FILED BY THE PETITIONER TO THE EXT.P8 STATEMENT FILED BY THE 2ND RESPONDENT.

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P9:- COPY OF THE LETTER DATED 18/7/2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

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P9(A):- COPY OF THE PETITION IA.12466/2011 IN WPC.11628/2011.

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P10:- COPY OF THE JUDGEMENT OF THIS HON'BLE COURT DATED 12/8/11 IN WPC.11628/2011(C).

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tss

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W.P.(C) NO.7633/2012

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P11:- COPY OF THE ORDER DATED 29/11/2011 OF THE 2ND RESPONDENT.

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P12:- COPY OF THE CONTEMPT NOTICE DATED 21/12/2011.

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P13:- COPY OF THE POSTAL ACKNOWLEDGEMENT CARD EVIDENCING RECEIPT OF EXT.P12.

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EXT.P14:- COPY OF JUDGEMENT IN OP.10332/92 E DATED 4/9/1992 OF THIS HON'BLE COURT.

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P15:- COPY OF THE REPLY DTD. 30.4.09 ISSUED BY THE VILLAGE OFFICER, NIRANAM.

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P16:- COPY OF THE DECREE DTD. 26.6.2000 IN OS.93/1996 OF THE HON'BLE MUNSIFF COURT, THIRUVALLA.

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P17:- COPY OF THE REPORT DTD. 12.5.08 AND THE PLAN ATTACHED TO ITS SUBMITTED BY THE DISTIRICT SURVEY SUPERINTENDENT, PATHANAMTHITTA TO THE DEPUTY DIRECTOR OF SURVEY, PATHANAMTHITTA, OBTAINED UNDER RIGHT TO INFORMATION ACT.

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P18:- COPY OF THE TAX RECEIPT DTD. 28.5.08 ISSUED BY THE VILLAGE OFFICER, NIRANAM IN RESPECT OF LAND IN RESURVEY NO. 51/21 AND 51/22 (THANDPER NO.8108) TILL 2008-2009.

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P19:- COPY OF THE DECREE DTD. 16.8.2010 IN OS. 140/2007.

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RESPONDENT'S EXHIBITS:-

NIL

//TRUE COPY//

P.A. TO JUDGE

tss

ANTONY DOMINIC, J. ================ W.P.(C) NO. 7633 OF 2012

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===================

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Dated this the 2^nd day of July, 2012

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J U D G M E N T

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Heard the 1^st petitioner, who appeared in person and the learned Government Pleader appearing for the respondents.

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The writ petition has been filed challenging Ext.P11 order. Briefly stated, the case of the petitioners is concerning their entitlement to get compensation in respect of 1.62 Ares of land which was situated in Sy.No.281/10 (R.S.No.51/12) of Niranam Village. According to the petitioners, the land in question was acquired for widening the Kadapra Veeyapuram National Highway link road and that they made Exts.P4 and P5 representations to pay them the admitted compensation and to refer their claim for enhanced compensation. Subsequently they filed WP(C) No. 11628/11. That writ petition was disposed of by Ext.P10 judgment dated 12/8/11 directing that orders shall be passed on the representations filed. It was accordingly that Ext.P11 order was passed. In Ext.P11, it was found that the property having an extent of 1.62 Ares comprised in Sy.No.281/10 (R.S. No.51/12) was a puramboke and that therefore the proceedings initiated

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WPC.No.7633/12

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under the Land Acquisition Act were cancelled. It is also stated that in order to comply with the direction of this Court as contained in Ext.P10, the matter was taken up with the District Collector and that after enquiry, the District Collector also confirmed that the land in question is a puramboke land. Further, reference is also made to the proceedings of the Deputy Director of Survey, Pathanamthitta which also according to the 2^nd respondent confirmed that the land in question is a puramboke land. In other words, on the conclusion that the land in question is a puramboke land, the claim of the petitioner for compensation and reference has been rejected by Ext.P11. It is this oder which is under challenge.

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In my view, the contention of the petitioners that the land is not a puramboke as found in Ext.P11 and it belongs to them is fully covered by the judgment in OS 140/07 rendered by the Sub Court, Thiruvalla. In that suit, 5.52 ares of land comprised in RS No.51/12 of Niranam Village, which includes the aforesaid 1.62 Ares, was plaint schedule item No.1. The claim of the petitioner concerning the aforesaid property has been dealt with by the Court in para 10 to 13 of the judgment, which is extracted

WPC.No.7633/12

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below:

10. The defendants have contended that the plaintiff is not entitled to get compensation for the plaint schedule item No.1 property as it is a puramboke land. I have gone through the entire evidence and circumstance available in this case and find that there is no cogent evidence to hold that the plaint schedule item No.1 property is a purampoke land. On the other hand the evidence adduced by the plaintiffs reveals the fact that the plaint schedule item No.1 property is not a purampoke land, but it is a part of the property described as the 4^th item in Ext.A2 partition deed. Plaintiff has produced Ext.A4 judgment and A5 plan to show that plaintiff is the absolute owner in possession of the plaint schedule item No.1 property. Ext.A9 is the decree in the above suit. The above suit is seen filed by the plaintiffs against three defendants who are the owners in possession of a property situated on the northern adjacent side of plaint schedule item No.1 property. The above suit is seen filed seeking fixation of boundary separating the plaint schedule item No.1 property from the northern adjacent property. The above suit is seen decreed fixing the boundary as per Ext.A5 plan prepared by the commissioner in that suit. Ext.A5 plan also forms part of Ext.A49 decree. As per the above plan the line 'P' 'O' 'N' 'Z' is the boundary separating the plaint schedule item No.1 property and the property of the defendants in that suit. On going through Ext.A4 judgment it can be seen that the Munsiff's court, Thiruvalla has decreed the above suit holding that plaint schedule property (plaint schedule item No.1 property in this suit) is a property which remained after acquisition for the highway from the plaintiff's property.

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The defendants in this case are not parties

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WPC.No.7633/12

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in the above suit. So the Ext.A5 judgment and A49 decree will not bind the defendants. But it is seen that the defendants accepting Ext.A5 judgment and A49 decree corrected the survey numbers of the plaint schedule item No.1 property and the purampoke land. Ext.A23 order dated 20/5/2008 issued by the Survey Deputy Director, Pathanamthitta substantiates the above fact. As per Ext.A23 order the survey number of plaint schedule item No.1 property has been corrected as survey numbers 51/21 and 51/22 and the survey number of the road and purampoke land are corrected as survey numbers 51/12 and 51/20. Ext.A23 order is seen made considering Exts.A11 report dated 12.5.2008 of the Survey Superintendent Pathanamthitta District. It is further seen that Ext.A23 order is seen made as per Ext.A10 (order in WP(C) No. 36879/2007) direction of the Hon'ble High Court and Ext.A4 judgment and A49 decree in O.S.No.480/1990 of the Munsiff Court, Thiruvalla. It is further seen that Ext.A23 order is seen issued after conducting proper inquiry and cite inspection by survey Deputy Director of Pathanamthitta District. So Ext.A23 can be treated as a concrete piece of evidence to hold that plaintiffs have got absolute title and possession over the plaint schedule item No.1 property. It is pursuant to Ext.A23 order mutation was effected in respect of the plaint schedule item No.1 property in favour of the plaintiffs predecessor and he has paid property tax also in his name. Ext.A13 is the property tax receipt issued in favour of the plaintiffs in respect of the plaint schedule item No.1 property.

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11. The defendants has contended that as Ext.A23 order is cancelled as per Ext.A24 order dated 20/9/2008 it cannot be taken into consideration to hold that plaintiff has got title and possession over the plaint schedule item

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WPC.No.7633/12

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No.1 property. The plaintiff has contended that Ext.A24 order cannot be acted upon as it was issued by exercising fraud and undue influence. It is argued on behalf of the plaintiff that Ext.A24 is made by the Deputy Survey Director, Pathanamthitta as per the direction of the District Collector, Pathanamtitta for the purpose of preparing statement of facts in respect of some properties acquired from the plaintiff's predecessor. I have gone through Ext.A24 order and oral evidence of PW2, Deputy Director of Survey and find that there is substance in the above argument put forward by the plaintiff. PW2 had admitted that before passing Ext.A24 order all the plaintiffs have not been given notice. It is admitted that before passing the above order notice was given to first plaintiff only and that the 1^st plaintiff had filed application before the deputy Director of survey seeking an adjournment as he is not able to appear before the Deputy Director of Survey from his place of employment owing to his illness. PW2 has categorically admitted that the Deputy Director of Survey neither sent a reply nor adjourned the hearing as per request of the 1^st plaintiff. Ext.A24 is seen passed by the Deputy Director of Survey on 20/9/08 ie within two weeks, after issuing notice to the first plaintiff. The deputy director of survey has passed Ext.A24 order in a hasty manner that too without hearing on the plaintiff and complying all the formalities. PW2, the Deputy Director of survey has produced the office file which deal with passing of Ext.A24 order and same is marked as Ext.XI, PW2 has categorically stated that in Ext.XI file there is nothing to show that before passing Ext.A24 order the plaint schedule item No.1 property has been measured and necessary documents have been examined. Considering all the above stated evidence, facts, reasons and circumstances I am of the view that Ext.A24 order cancelling Ext.A23 is issued

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WPC.No.7633/12

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without complying the principle of nature justice and without considering necessary documents and hence same cannot be considered for substantiating defendant's case that plaint schedule item No.1 property is a purampoke land.

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12. Another contention put forward by the plaintiffs is that Ext.A7 judgment and A8 decree also prove their case that they have got absolute possession and title over the plaint schedule item No.1 property. Ext.A7 judgment and A8 decree are seen passed in O.S.No.93/1996 of the Munsiff court, Thiruvalla. The above suit was filed against the Block development Officer, Kadapra Village and Govt. of Kerala, by the plaintiff. The said suit is seen filed seeking an injunction against the defendants restraining them from trespassing upon the plaint schedule item No.1 property in this case. The plaint schedule item No.1 property involved in this case is the plaint schedule item No.3 property in that suit. The said suit was decreed in favour of the plaintiff by granting a permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule item No.1 property involved in this case and from completing the construction of a road through the same by metelling and tarring. The above judgment and decree (Ext.A7 and Ext.A8) have not been challenged by the defendants ie they have not filed any appeal against Ext.A7 judgment and A8 decree. It is further seen from Ext.A9 (written statement filed by the defendants in O.S.No.93/1996) that the defendants have not put forward that the plaint schedule item NO.1 property involved in this case is a puramboke land. What is stated by the defendants in the above their written statement (Ext.A9) is that the plaint schedule item No.3 property (plaint schedule item No.1 property in this suit) is a

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WPC.No.7633/12

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bund road which is being used by the public. The act of the defendants in not put forwarding a case that plaint schedule item No.3 property in the above suit (Plaint schedule item No.1 property in this suit) is a purampoke land and in not filing appeal against Ext.A7 judgment and Ext.A8 decree also give an inference that the defendants admit plaintiff's title and possession over the plaint schedule item NO.1 property. So Ext.A7 and A8 judgment can also be taken into consideration to hold that plaintiff's have got title and possession over the plaint schedule item No.1 property. Another important evidence to show that the defendants have admitted plaintiff's title and possession over the plaint schedule item No.1 property is Ext.A38 notice of award issued by the Land Acquisition Officer, Alappuzha in respect of the plaint schedule item No.1 property in favour of the plaintiff's predecessor. Ext.A38 is seen issued in favour of plaintiff's predecessor awarding an amount of Rs.8,290/- as compensation for an extent of 1.62 Ares which forms part of the plaint schedule item No.1 property in this case. PW4 the special Tahsildar Land Acquisition has admitted the above said fact before Court. But he has not produced the relevant records before court even though he was directed to produce the said records. He has produced two office files and same are marked as Ext.X3 and X4. But Exts.X3 and X4 file do not contain anything regarding the award inquiry note on the basis of which Ext.A38 notice of award is issued to the plaintiff. When PW4 is examined he has stated that the above said documents are not seen in the office. The contention of the plaintiff is that if the above said document ie; the file regarding the award inquiry note on the basis of which Ext.A38 notice of award was issued to the plaintiff is produced it will convincingly proves the fact the plaint schedule item NO.1 property is not a purampoke land but the property

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WPC.No.7633/12

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belongs to the plaintiffs. PW4 neither produced the above said documents not file affidavit showing that it is not available in his office. So I am inclined to draw a presumption against the defendants u/s 114(g) of the Indian Evidence Act ie, the defendants are with holding the above said documents as the same is unfavourable to them if they are produced before court. The act of defendants in not producing the above said documents ie, the award inquiry note on the basis of which Ext.A38 notice of award is given, creates strong doubt in their case that plaint schedule item No.1 property is a purampoke land. If the above property is a purampoke land definitely Ext.A38 notice would not have been issued to the plaintiffs. This fact also can be considered to hold that plaintiff's have got title and possession over the plaint schedule item No.1 property. It is admitted that altogether five items of properties were acquired from the plaintiffs. It is admitted by PW4 the special tahsildar (LA) that a reference case as L.A.81/88 was taken in respect of a portion of the property comprised in plaint schedule item NO.1 property ie, the property shown in Ext.A38 notice of award. It is further come out from the oral evidence of PW4 that the said case has not been referred to court even though Ext.A33 order has been passed by the Hon'ble High court. In Ext.A33 order the Hon'ble High Court has observed that the reference in respect of the above said land (1.62 Ares of land comprised in survey No.181/10-3) u/s 32 will stands. According to the plaintiff's even though they had filed protest regarding the amount of award passed in respect of the above property no reference has been made u/s 18 of the Land Acquisition Act. The defendants has not given any explanation as to why no reference in respect of the above said land has been made even though they admit a land Acquisition case as L.D81/1988-89

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WPC.No.7633/12

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is taken in respect of the above property. It is proved from the afore stated evidences and Ext.A2 partition deed that the property shown in land Acquisition case No.LA.81/1988-89 (property shown in Ext.A38) originally belonged plaintiffs predecessor and plaintiffs obtained the same after the death of their predecessor.

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13. In view of the aforesaid evidence, facts, reasons and circumstances I hold that the defendants case that plaint schedule item No.1 property is a purampoke land is liable to be rejected. On the other hand, it is proved from the afore stated evidence and circumstances that plaint schedule item No.1 property belongs to plaintiffs. I find issue No.2 and 3 in favour of the plaintiffs.”

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Respondents 1 and 2 herein and the Executive Engineer, National Highway, Alappuzha were the defendants in OS No.140/07. This judgment has become final. If that be so, the aforesaid findings rendered by the Civil Court, with respondents 1 and 2 also in the party array has become final and it binds them. In such a situation, it was not open to the respondents to have reexamined the matter themselves and come to a finding which is contrary to what was decided by the Civil Court. For that reason itself, Ext.P11 order where 1.62 Ares of land, which is a part of plaint schedule item No.1 dealt with in Ext.P3, has been held to be a puramboke is plainly untenable and has to be quashed.

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WPC.No.7633/12

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For that reason, Ext.P11 is quashed and the 2^nd respondent is directed to pass orders as directed in Ext.P10 judgment of this Court consistent with the findings in Ext.P3 judgment referred to above. This shall be done as expeditiously as possible, at any rate within 4 weeks of production of a copy of this judgment.

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Writ petition is allowed as above.

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ANTONY DOMINIC, JUDGE

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E. Jacob Varghese v. State of Kerala

Case brief

What is this about?

What did the court decide?

E. Jacob Varghese v. State of Kerala

Case brief

What is this about?

What did the court decide?

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