Disposed

Krishnankutty @ Abraham v. State of Kerala

Kerala HC1 Nov 2016WP(C)/10598/2010

Case brief

AI extract

What is this about?

The Court disposed of a writ petition concerning disputed land title. The petitioners claimed ownership via purchase of land previously identified as a pond under an exemption section. The Court held that procedural challenges to the purchase certificate lie with the Appellate Authority under the Kerala Land Reforms Act.

What did the court decide?

Writ petition dismissed with direction that the matter remain before the Appellate Authority under the Kerala Land Reforms Act to decide the title of the un-assessed land.

Krishnankutty @ Abraham Vs State of Kerala — Property and Title | 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 1ST DAY OF NOVEMBER 2016/10TH KARTHIKA, 1938

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WP(C).No. 10598 of 2010 (Y)

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PETITIONER(S):

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1. KRISHNANKUTTY @ ABRAHAM, POOVATHINGAL, MERCY NIVAS, MANISSERY.P.O, OTTAPALAM, PALAKKAD.

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2. SANKARA NARAYANAN, PUTHUPARAMBIL HOUSE, MANISSERY.P.O, VANIYAMKULAM, OTTAPALAM.

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BY ADVS.SRI.VELLAYANI SUNDARARAJU SMT.MEENAKUMARI

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY,, THIRUVANANTHAPURAM.

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2. THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM.

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3. THE DISTRICT COLLECTOR, PALAKKAD.

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4. THE TAHSILDAR, OTTAPALAM TALUK, PALAKKAD.

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BY GOVERNMENT PLEADER SMT VINEETHA HARIRAJ

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-10-2016, THE COURT ON 01-11-2016, DELIVERED THE FOLLOWING:

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K.V.

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WPC NO.10598 PF 2010:

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APPENDIX

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PETITIONERS EXHIBITS:

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P1: COPY OF CERTIFIED COPY OF A REGD.PARTITION DEED EXECUTED VIDE DOCUMENT NO.936/1903 DATED 25.6.1903 OF OTTAPALAM S.R.O.

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P2: COPY OF REG.ACKNOWLEDGEMENT DEED (KAICHEETTU) VIDE NO.834 OF 1908 DATED 13.2.1908 OF S.R.O.OTTAPALAM.

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P3: COPY OF WRITTEN LEASE DATED 23.11.1967 IN SY.NO 2/2 POTHOTTIKULAM TO NARAYANAN EZHUTHASSAN BY THE KARANAVAR OF VARIKKAMANCHERRY MANA.

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P4: COPY OF FORM 'J' JOINT APPLICATION FILED BEFORE THE LAND TRIBUNAL,OTTAPALAM BY BOTH RAVI NAMBOODIRIPAD THE KARANAVAR OF VARIKKAMANCHERRY MANNA AND NARAYANAN EZHUTHASSAN (COPY OBTAINED UNDER SEC.6(1) OF RIGHT TO INFORMATION ACT.

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P5: COPY OF ENQUIRY REPORT OF AUTHORIZED OFFICER IN O.A.709/71 DATED 20.1.1972 UNDER SECTION 105 OF THE LAND REFORMS ACT 1963 (COPY OBTAINED UNDER SEC.6(1) OF RIGHT TO INFORMATION ACT).

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P6: COPY OF PURCHASE CERTIFICATE DATED 26.5.1972 IN O.A.709/71 ISSUED BY LAND TRIBUNAL OTTAPALAM TO NARAYANAN EZHUTHASSAN.

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P7: COPY OF THE CERTIFIED COPY OF REGD. SALE DEED NO 363/79 DATED 8.2.1979 OF S.R.O OTTAPALAM EXECUTED BY NARAYANAN EZHUTHASSAN IN FAVOUR OF T.I.IYYIKUTTY.

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P8: COPY OF REG.SALE DEED VIDE NO.1356/81 OF S.R.O.OTTAPALAM EXECUTED BY T.I IYYUKUTTY IN FAVOUR OF IST PETITIONER AND TWO OTHERS.

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P9: COPY OF THE REGISTERED PARTITION DEED VIDE NO 1588/86 DATED 10.5.86 OF S.R.O OTTAPALAM EXECUTED BY 1ST PETITIONER AND 2 OTHERS.

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P10: COPY OF THE REGISTERED SALE DEED VIDE NO.1850/86 DATED 26.5.86 S.R.O OTTAPALAM EXECUTED IN FAVOUR OF 2ND PETITIONER.

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P11: COPY OF ORDER OF SUB COLLECTOR,OTTAPALAM TO VILLAGE OFFICER,VARIYAMKULAM 11 DATED 5.2.1993.

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P12: COPY OF REPORT OF SUB COLLECTOR,OTTAPALAM DATED 1.3.2000 PERMITTING 4TH RESPONDENT OF W.P.TO REMIT BASIC TAX ON THE PORTION OF HIS PROPERTY.

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P13: COPY OF THE MALABAR LAND REGISTRATION ACT 1895.

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P14: COPY OF THE MADRAS LAND REGISTRATION REGULATION,1802.

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P15: COPY OF JUDGMENT IN WPC.NO 9258/05 OF THIS HON'BLE COURT.

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P16: COPY OF ORDER OF SUB COLLECTOR,OTTAPALAM DATED 29.6.2006.

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P17: COPY OF JUDGMENT OF THIS COURT IN WPC.25198/06 .

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-2-

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WPC NO 10598 OF 2010:

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-2-

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P18: COPY OF LIST DOCUMENT FURNISHED BEFORE THE 2ND RESPONDENT DATED 7.11.009 BY THE PETITIONERS.

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P19: COPY OF ORDER OF 2ND RESPONDENT DATED 19.2.2010.

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P20: COPY OF REPRESENTATION DATED 23.7.2007 TO HON'BLE CHIEF MINISTER OF KERALA BY THE PETITIONER IN WPC.31204/2007.

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P21: COPY OF JUDGMENT IN WPC NO 31204/2007 DATED 1.6.2009 OF THIS COURT.

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RESPONDENTS EXHIBITS: NIL

/TRUE COPY/

P.A.TO JUDGE

K.V.

K. Vinod Chandran, J

---------------------------------------W.P.(C) No.10598 of 2010-Y

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Dated this the 01^st day of November, 2016

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JUDGMENT

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None appears for the petitioner when the matter was

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called for hearing. I have heard the learned Government Pleader and perused the records.

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The 1^st petitioner has 12 cents of land comprised in survey No. 2/2 of Vaniyamkulam-II Village in Ottappalam Taluk, wherein he has constructed a residential house. The 2^nd petitioner has 10 cents of land in the very same survey number. The land is described as “Pothattikulam” in the revenue records which was existing as a pond and which along with its four embankments had a total extent of 34 cents. The land is said to be one owned by the Varikkamencheri Mana; which on the coming into force of the Kerala Land Reforms Act, 1963 [for brevity “KLR Act”], under Section 72B was assigned to the cultivating tenant by Exhibit P6 Purchase Certificate. Exhibits P1 to P5 are documents produced to show that the title existed with the Mana and later was subject to

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WP(C) No.10598 of 2010 - 2 -

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proceedings under Section 72B, which eventually led to the issuance of the Purchase Certificate.

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The petitioners are subsequent assignees of the tenant who acquired the rights over the property as per the Purchase Certificate; which is sought to be substantiated by Exhibits P7 to P9. The land in survey number 2/2 remaining as a pond was un-assessed land (U.A.) and it was so described in the revenue records also. The petitioner had sought for assessment of the land belonging to him which was permitted and he was allowed to remit tax as is seen from Exhibit P11 and P12. Dispute arose when a People's forum filed a writ petition, a public interest litigation, alerting the illegal encroachment into the pond which was alleged to be a Puramboke. A Division Bench of this Court by Exhibit P15 directed the Thahsildar to see that no encroachment is made in the filled up area of the pond.

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Based on Exhibit P15 a representation was filed by the very same forum before the Sub Collector, Ottapalam who passed Exhibit P16. Exhibit P16 found that in the Adangal Register,

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WP(C) No.10598 of 2010 - 3 -

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the Basic Report of the Revenue Department, the details of the land in Survey Number 2/2 having an extent of 34 cents was Un-assessed land marked as tank. It was found that there was no proof to determine the title or ownership of the U.A. tank, on any individual before 26/05/1972; the date of the Purchase Certificate, produced here at Exhibit P6. It was also found that the joint application filed under the KLR Act included the 34 cents as owned by the landlord and leased out to the tenant. In fact that there was nothing to decide the ownership of the said un-assessed land on the landlord and as per Section 4 of the Kerala Land Conservancy Act, 1947 [for brevity “KLC Act”] Puramboke shall mean and include unassessed lands used by the public. On the aforesaid finding it was held that the persons who possessed the 34 cents of unassessed land in survey number 2/2 of Vaniyamkulam Village cannot make any construction in the land nor could change or alter the classification of the land as tank. By Exhibit P15 the matter of issuance of the purchase certificate with respect to the U.A. tank was referred to the Appellate Authority under the KLR Act.

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WP(C) No.10598 of 2010 - 4 -

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A further complaint was raised by the neighbours of the petitioners; which alleged violation of the Kerala Panchayath Raj Act, 1994 [for brevity “KPR Act”] in the construction of the building and also raised the allegation of possession of Puramboke land. The same eventually was considered by this Court from a challenge to the order of the Local Self Government Institutions Tribunal. The violation alleged in the construction of the building was negatived and there was a clear finding that the Local Self Government Institutions Tribunal had found that the building was constructed prior to the coming into force of Section 235 (F) of the KPR Act and hence the allegation was unfounded. With respect to the other allegation of possession of Puramboke land it was found that already the matter was referred to the Appellate Authority under the KLR Act. The said contention was left to be raised after the Appellate Authority decides on the issue.

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Again another public forum moved Exhibit P18 before the Government, which was directed to be considered in Exhibit P-21 judgment. The challenge in the above writ petition is against

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WP(C) No.10598 of 2010 - 5 -

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Exhibit P19 order so passed. Exhibit P19 more or less reiterated the findings in Exhibit P16. It also noticed that the Purchase Certificate issued was under challenge before the Appellate Authority under the KLR Act. It is not clear as to whether the proceedings before the Appellate Authority is concluded or not. In any event Exhibit P19 would not have any bearing on the decision to be taken by the Appellate Authority under the KLR Act. The Purchase Certificate issued under the KLR Act cannot be set aside by orders passed on representations. The Sub Collector, in Exhibit P16 has correctly referred the issue to the Appellate Authority constituted under the KLR Act. The further proceedings would depend upon the order of the Appellate Authority.

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It is also to be noticed that the petitioners are found to be in possession; whether validly or not. If eventually the possession is found to be of Puramboke then necessarily the State would have to take proceedings under the KLC Act, with notice to the petitioners. In this context it is also to be noticed that the petitioners had purchased the land on the basis of the Purchase Certificate

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WP(C) No.10598 of 2010

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issued by the statutory authority and had also made improvements thereon by constructing buildings that too long prior to 1997 as found in Exhibit P17. If at all the petitioners possession is found to be bad, by the Appellate Authority necessarily the petitioners would be entitled to seek for assignment of such lands. In the present writ petition suffice it to notice that the decision of the Appellate Authority would have to be independent of Exhibit P 19 and would have to be based on the title of the land as traced prior to the issuance of the Purchase Certificate.

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The writ petition disposed of with the above observations.

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No Costs.

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Sd/- K.Vinod Chandran Judge

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vku/-

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[ true copy ]

Krishnankutty @ Abraham v. State of Kerala

Case brief

What is this about?

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Krishnankutty @ Abraham v. State of Kerala

Case brief

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