Dismissed

Kalavathy v. the State of Kerala

Kerala HC17 May 2016OP/30684/1999

Case brief

AI extract

What is this about?

WP filed by a land assignee challenging a Board of Revenue order cancelling her assignment due to claimed overlap with another assignment. The Court held the original assignment should stand effective as no interference with the 5th respondent's possession was shown, dismissing the petition with observations.

What did the court decide?

Original petition dismissed with observation that cancellation of assignment shall not stand in the way for future rules-based assignment.

Kalavathy Vs the State of Kerala — Land Acquisition | Kerala HC (2016)

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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 K.VINOD CHANDRAN

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TUESDAY, THE 17TH DAY OF MAY 2016/27TH VAISAKHA, 1938

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OP.No. 30684 of 1999 (C)

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PETITIONER(S):

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KALAVATHY, W/O. SANJEEVA RAI, RESIDING AT MARTIKERE HOUSE, BELA, VIA KUMBLA, KASARAGOD

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BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN

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RESPONDENT(S):

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1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM

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2. THE COMMISSIONER OF LAND REVENUE (LR) SECRETARIAT, TRIVANDRUM

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3. THE REVENUE DIVISIONAL OFFICER KASARAGOD AT KANHANGAD

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4. THE SPECIAL TAHILDAR (A), KUMBLA, KASARAGOD

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5. NARAYANA BELICHAPPADA, S/0.KANNA BELICHAPPADA MARATIGURI, BELA VILLAGE AND POST, KASARAGOD.

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R,R5 BY ADV. SRI.M.KRISHNAKUMAR R,R5 BY ADV. SMT.PRABHA R.MENON R,R1 TO R4 BY ADV. GOVERNMENT PLEADER SRI P M SANEER

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THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P NO.30684/1999

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1 : TRUE COPY OF THE FORM OF ORDER OF ASSIGNMENT ON REGISTRY IN L.A. 5/77/BELA.ISSUED BY RESONDENT NO 4

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EXT.P2 : TRUE COPY OF THE PATTA ISSUED BY RESPONDENT NO.4 EXT.P3 : TRUE COPY OF THE ORDER IN A.A. NO.100/87 PASSED BY RESPONDENT NO.3

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EXT.P4 : TRUE COPY OF THE PROCEEDINGS OF THE BOARD OF REVENUE IN D,DIS 32967/LR.J2

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EXT.P5 : TRUE COPY OF THE ORDER OF RESPONDENT NO.4 IN LA 5/77/BELA

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EXT.P6 : TRUE COPY OF THE ORDER IN PROCEEDINGS NO. A.A. 74/93 PASSED BY RESPONDENT NO.3

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EXT.P7 : TRUE COPY OF THE ORDER IN LR.J2-26351/97/D.DIS. (1) PASSED BY RESPONDENT NO.2

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ANNEXURE : REVISED SURVEY SKETCH OF THE PROPERTY INVOLVED IN THE ABOVE ORIGINAL PETITION

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RESPONDENTS' EXHIBITS:

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EXT.R5(1) : TRUE COPY OF THE PROCEEDINGS NO. 17530/63 DATED 29.02.1964 OF THE TAHSILDAR, KASARAGOD

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EXT.R5(2) : TRUE COPY OF THE ASSESSMENT NOTICE DT 10.05.1974 OF THE TAHSILDAR, KASARAGOD

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EXT.R5(3) : TRUE COPY OF the PROCEEDINGS DT 16.3.1965 OF THE TAHSILDAR, KASARAGOD //TRUE COPY//

P.A. TO JUDGE

jma

K. VINOD CHANDRAN, J

- - - - -- - - - - - - - - - - - - - - - O.P No. 30684 of 1999

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Dated this the 17^th day of May, 2016

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The petitioner is aggrieved with the cancellation of

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assignment effected; in proceedings initiated by the 5^th respondent.

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The petitioner was assigned an extent of 1.30 Acres of land in R.S.No.157/part sub-divided in resurvey as R.S.No.157/4,evidenced from the assignment proceedings: Ext.P1. The 5^th respondent was aggrieved by the said assignment of land since it comprised of lands assigned to him earlier. The 5^th respondent was hence, in appeal before the Revenue Divisional Officer.

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The 5^th respondent, as is seen from his counter

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affidavit,was assigned with 4 Acres of land in Survey No. 157/2 as is evidenced by Exts.R5(1), R5(2) and R5(3) in Bela Village. The 5^th respondent was also paying tax for the aforesaid 4 Acres assigned

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to him under the Rules of Assignment of Government Lands for Settlement of Agricultural Labourers. The said assignment was

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O.P No. 30684/1999

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carried out in the year 1963. The impugned assignment of 1.30

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Acres, to the petitioner, was under the Kerala Land Assignment Rules 1974 carried out in the year 1977. Admittedly in 1974 there was a re-survey conducted in which, presumably Survey No. 157 was divided into various parts under Re-survey No. 157. For the purpose of this case, sketch produced by the petitioner along with a verified petition dated 19.06.2006, as Annexure A is also pointed out by the learned Senior Counsel appearing for the petitioner, to advance the contention that the land assigned to the petitioner is not covered by the assignment to the 5^th respondent. It is also argued that the petitioners assignment was far below 4 acres as found from the revenue records. Annexure A is the Revenue Inspector's sketch referred to in Ext.P5 order.

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Looking at the various orders in the original

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petition, it is seen that the appeal filed by the 5^th respondent directed restoration of 1.18 Acres from the land assigned to the

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O.P No. 30684/1999

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petitioner comprised in R.S. No. 157/4 or that available in R.S No. 157/1 A; in favour of the 5^th respondent, by Ext.P3 order. In fact, it is to be noticed that the 5^th respondent who was the appellant had challenged the assignment to the petitioner on the ground that the said properties were already assigned to the 5^th respondent and was in his possession. There was absolutely no requirement for restoration. Ext.P3 on a misunderstanding, the reason for which will be later noticed; found the 5^th respondent to be in possession of only 2.82 Acres in R.S No.157/2 and directed restoration of the balance extent of 1.18 acres from either of the Re-survey numbers afore noticed. This was due to the fact that the S.D. Records prepared showed only 2.82 acres in the name of the 5^th respondent. After noticing the discrepancy in the records, by Ext.P3 appellate order the issue was remanded for fresh consideration by Revenue Divisional Officer (R.D.O). On a revision taken by the petitioner the Board of Revenue refused to interfere with the appellate order and

O.P No. 30684/1999

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affirmed the remand.

In Ext.P3 order of remand the R.D.O. directed

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restoration of 1.82 Acres of land either from the land assigned to

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the petitioner( R.S.No. 157/4) or from R.S No.157/1 lying to the north of 2.82 Acres in R.S.No. 157/2' already in possession of the 5^th respondent and under cultivation by him. From Annexure A sketch it can be seen that R.S. No. 157/1A lies to the north of R.S.No. 157/2 and R.S. No. 157/4 lies to the south west. The issue as it remained for consideration, on remand, was as to whether the respondent should be restored with 1.18 Acres from the north of the properties already in his possession, comprised in R.S No.157/1A or from the properties lying to the south west comprised in R.S 157/4. The 5^th respondent asserted his possession of the properties in Re-survey No.157/4. That issue was considered by the Special Tahsildar as per Ext.P5.

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Ext P.5 found that there was no dispute with respect

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O.P No. 30684/1999

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to 0.26 Acres in R.S No. 157/4A lying to the south-west of 2.82

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Acres which was admittedly in the possession of the 5^th respondent since he was found to have made valuable improvements thereon.

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The Special Tahsildar found that the 5^th respondent is entitled to surrender of 0.26 Acres in R.S 157/4A. The petitioner too consented to the same. Then the issue left was from where the balance 0.92 acres are to be found; for restoring possession of the 5^th respondent. Ext P5 found that the balance 0.92Acres of the 5^th respondent's assignment is from R.S.No. 157/1A lying to the north. That is; to the north of the 2.82 Acres already in the 5^th respondent's possession. The same was challenged by 5^th respondent in an appeal before the R.D.O which ended in his favour at Ext.P6. Ext.P6 was again taken up before the Board of Revenue which cancelled the entire assignment made to the petitioner as per Ext.P7. Ext.P6 & P7 are challenged herein.

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Ext.P6 approached the issue in its proper perspective,

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O.P No. 30684/1999

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which also reveals the misunderstanding in Ext.P3 order. Ext.P6

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found that the 4 Acres in Survey No. 157/part was assigned in favour of the 5^th respondent as per SS 232/63-64. The respondent's assignment was occasioned in the year 1977, before which there was a resurvey undertaken. The issue with respect to whether assignment had to be made from the property in R.S No.157/1A or 157/4 arose only because the properties assigned to the 5^th respondent were found to be shown in the S D record as reduced to an extent of 2.82 Acres. The R.D.O in Ext.P6 clearly found that such a reduction could not have been made by the Surveyor, especially when there is sufficient government land on either side for assignment. It is also pertinent that there is absolutely no records produced by the Government as to any proceedings having been taken against the 5^th respondent for restoration of lands, for any reasons as could be contemplated under the 'Rules for Assignment of Government Lands for Settlement of Agricultural

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O.P No. 30684/1999

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Labourers'. Hence there can be no dispute that the 5^th respondents enjoyment and possession of 4 Acres assigned to him by SS 232/63-64 cannot be interfered with by a fresh assessment made in 1977 in favour of the petitioner.

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Further the fact finding in Ext.P5 itself was that 0.26 acres to the south-west of the 2.82 acres in the possession of the 5^th respondent; was also in his possession and valuable improvements

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were also seen to be made thereon. Annexure A sketch also indicates the 0.26 acres to be in R.S. No. 157/4A and there is available a further extent of 0.92 in R.S.No. 157/4B. The fact that 0.26 acres in the possession of the 5^th respondent, conceded to even by the petitioner; lies to the south-west probablises the case that the balance portion is also comprised in that survey number; especially looking at the lie of the different extents as revealed from the sketch. In such circumstance, there is absolutely no reason why Ext.P6 order should be interfered with.

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O.P No. 30684/1999

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The alternate contention taken by the learned

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Senior Counsel is with respect to assignment of 0.92 Acres of property lying to the north of the property assigned to the 5^th respondent comprised in Re-survey No. 157/1A. Based on an order issued by this Court dated 16.07.2015, the Deputy Tahsildar, Kasaragod has filed an affidavit dated 07.08.2015 in which

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paragraph 5 is extracted herein below.

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“It is submitted that on enquiry and further

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verification of records, an extent of 0.92 Acres

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of dry land is still available, for assignment, in

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Re-survey No. 157/1A of Bela Village, as stated

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in Paragraph 2 of the affidavit, filed by the 4^th

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respondent dated 21.06.2010.”

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0.92 Acres of land in R.S.No. 157/1A, as per the affidavit of the

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Government has not been assigned to anybody. In such circumstance, it is for the Government to consider whether the

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O.P No. 30684/1999

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said property can be assigned or the extent of assignment should

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be 1.3 Acres as has been done earlier by Ext.P1. However, such an assignment cannot, as has been held herein above, interfere with the possession or enjoyment of 4 Acres assigned to the 5^th respondent and comprised in R.S No.157/2 and R.S No.157/4A & 4B. The further assignment to be made to the petitioner shall be made

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in accordance with the rules and to make such assignment, the cancellation made by the Board of Revenue as per Ext.P7 shall not stand in the way of the government.

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Original Petition would stand dismissed, however with

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the above observation. No costs.

Sd/-

jma

//true copy//

P.A to Judge

Kalavathy v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Kalavathy v. the State of Kerala

Case brief

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