Dismissed

Kanjiramkulam Grama Panchayat v. State of Kerala

Kerala HC19 Oct 2016WP(C)/32835/2007

Case brief

AI extract

What is this about?

Petitioner Panchayat challenged Land Revenue Commissioner's order setting aside District Collector's cancellation of Kuthakapattom. Court upheld Commissioner's order, finding partition among heirs is heritable rights, not alienation, and rent was paid upon notice.

What did the court decide?

Writ petition dismissed; Commissioner's order set aside is upheld; Petitioner to seek cancellation through appropriate proceedings.

Kanjiramkulam Grama Panchayat 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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WEDNESDAY, THE 19TH DAY OF OCTOBER 2016/27TH ASWINA, 1938

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WP(C).No. 32835 of 2007 (H)

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PETITIONER(S):

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KANJIRAMKULAM GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KANJIRAMKULAM, THIRUVANANTHAPURAM.

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BY ADVS.SRI.G.P.SHINOD SRI.MANU V. SRI.RAM MOHAN.G.

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RESPONDENT(S):

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1. THE STATE OF KERALA, REPRESENTED BY ITS REVENUE SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE COMMISSIONER OF LAND REVENUE, OFFICE OF THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM.

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3. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.

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4. SRI. KESAVAN SUBRAMANYAN, KESAVA NILAYAM, POOZHIKUNNU, KARUMAN DESOM.

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5. PONNAMMA SARASWATHY MANNADAPPUVILA VEEDU, KANJIRAMKULAM DESOM.

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6. PONNAMMA KRISHNAMMA, MANNADAPPUVILA VEEDU, KANJIRAMKULAM DESOM.

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7. PONNAMMA SULOCHANA, MANNADAPPUVILA VEEDU, KANJIRAMKULAM DESOM.

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8. PONNAMMA SHILAJA, MANNADAPPUVILA VEEDU, KANJIRAMKULAM DESOM.

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WP(C).No. 32835 of 2007 (H)

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9. MADHAVAN PADMANABHA, THATTARAKKUZHY HOUSE, KEEZHKOLKA DESOM, CHENKAL PAKUTHY. 10. MADHAVAN SUBASHITAN, THATTARAKKUZHY HOUSE, KEEZHKOLKA DESOM, CHENKAL PAKUTHY. 11. MADHAVAN SISHUNATHAN, THATTARAKKUZHY HOUSE, KEEZHKOLKA DESOM, CHENKAL PAKUTHY. 12. VISALAKSHI PRABHAVATHY, THATTARAKKUZHY HOUSE, KEEZHKOLKA DESOM, CHENKAL PAKUTHY. 13. VISALAKSHI LEELA, THATTARAKKUZHY HOUSE, KEEZHKOLKA DESOM, CHENKAL PAKUTHY. 14. VISALAKSHI SAILAJA, THATTARAKKUZHY HOUSE, KEEZHKOLKA DESOM, CHENKAL PAKUTHY. 15. MADHAVAN CHANDRAN, THATTARAKKUZHY HOUSE, KEEZHKOLKA DESOM, CHENKAL PAKUTHY. 16. VISALAKSHI KUMARI SATHI, THATTARAKKUZHY HOUSE, KEEZHKOLKA DESOM, CHENKAL PAKUTHY. 17. VISALAKSHI NIRMALA, THATTARAKKUZHY HOUSE, KEEZHKOLKA DESOM, CHENKAL PAKUTHY. R1-R3 BY GOVERNMENT PLEADER SMT.VINEETHA HARIRAJ R4 BY ADVS. SRI.M.AJAY (IRUMPANAM) SRI.HARISH GOPINATH SRI.R.S.KALKURA SRI.M.S.KALESH SRI.V.VINAY MENON

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 32835 of 2007 (H)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1:	A TRUE DTD.31	COPY OF THE ORDER NO.B1/67834/98 .1.2000 ISSUED BY THE THIRD RESPONDENT.
EXHIBIT P2:	A TRUE 6025/2 SECOND	PHOTOCOPY OF THE ORDER NO.D.DIS 000/IR.J3 DTD.3.8.2002 ISSUED BY THE RESPONDENT.
EXHIBIT P3:	A TRUE	PHOTOCOPY OF THE ORDER NO.67834/1998
EXHIBIT P4:	A TRUE NO.LR. SECOND	PHOTOCOPY OF THE ORDER J3-28562/2005 DTD.26.12.2005 PASSED BY THE RESPONDENT.
EXHIBIT P5:	A TRUE NO.236 RESPON	COPY OF THE ORDER NO.GO(RT) 1/2007/RD DTD.5.6.2007 PASSED BY THE FIRST DENT.

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RESPONDENT(S)' EXHIBITS

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EXT.R4(a): TRUE COPY OF THE JUDGMENT IN OS.NO.124/1994 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, NEYYATTINKARA. EXT.R4(b): TRUE COPY OF THE JUDGMENT DT.15.12.2000 IN CRP.NO.2703/1999. EXT.R4(c): TRUE COPY OF THE ORDER IN REVIEW PETITION NO.27/2001 DTD.15.2.2001. EXT.R4(d): TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR DTD.31.1.2000. EXT.R4(e): TRUE COPY OF THE JUDGMENT DT.3.4.2002 IN OP.NO.20036/2001. EXT.R4(f): TRUE COPY OF THE ORDER DTD.3.8.2002 ISSUED BY THE LAND COMMISSIONER REVENUE. EXT.R4(g): TRUE COPY OF THE PROCEEDINGS OF THE COMMISSIONER OF LAND REVENUE DTD.26.12.2005. EXT.R4(h): TRUE COPY OF THE ORDER G.O.(RT) NO.2361/2007/RD DTD.5.6.2007.

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WP(C).No. 32835 of 2007 (H)

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EXT.R4(i): TRUE COPY OF THE RESOLUTION DTD.3.6.1977 OF THE KANJIRAMKULAM GRAMA PANCHAYATH.

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EXT.R4(j): TRUE COPY OF ORDER DTD.9.12.2010 IN S.L.P.NO.9077/2006 ON THE FILE OF THE SUPREME COURT OF INDIA.

//TRUE COPY//

P.S.TO JUDGE

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K. VINOD CHANDRAN, J.

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W.P.(C) No. 32835 of 2007 (H)

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Dated: 19^th October, 2016

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J U D G M E N T

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The writ petition was heard elaborately on the last occasion and posted today only for a clarification, which has been supplied by the learned Counsel, Sri. Harish Gopinath, appearing for respondents 4 to 17. Smt. Vineetha Hariraj, learned Government Pleader is also present. This Court expresses its profound happiness

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in the Counsel having appeared, despite a boycott called for, fully realising the responsibility cast on an Advocate.

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The petitioner Panchayat is aggrieved with Ext.P4 order passed by the Land Revenue Commissioner.

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W.P.(C) No. 32835/2007

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The brief facts to be noticed are that the

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predecessor of respondents 4 to 17 was granted lease of 65 cents of land comprised in old Survey No. 53/10 of Karumkulam Village as 'Kuthakapattom'. On the death of the original lessee, being one Padmanabhan Kochappy, the legal heirs had entered into a partition deed, based on which proceedings were initiated for violation of conditions of the Kuthakapattom Rules, 1947 ('Rules of 1947' for short), as seen from Form D. In addition to the aforesaid violation, it was also alleged that there was no regular payment of rent as stipulated.

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The proceedings were once remanded and an order was passed by the District Collector dated 16.05.2005, produced as Ext.P3, which cancelled the Kuthakapattom. A reading of Ext.P3 would indicate that one Gomathy and 7 others were actually in possession of the land, which, however, is not of any

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W.P.(C) No. 32835/2007

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consequence insofar as the continuation of Kuthakapattom under the Rules of 1947. In this context it is also to be noticed that respondents 4 to 17 had initiated a suit against the said persons, including the State and the Panchayat as defendants, for mandatory injunction for eviction of the trespassers, based on the possessory title as per the Rules of 1947. The suit was decreed, which judgment is produced at Ext.R4(a). The legal heirs of Padmanabhan Kochappy was found to have valid possession of the land and the mandatory injunction as prayed for was allowed.

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The judgment and decree at Ext.R4(a) was challenged in A.S. No.123/2001, which was rejected, from which judgment a Special Leave to Appeal has been filed, which also, according to the learned Counsel appearing for respondents 4 to 17, has been dismissed as a consequence of non production of proof of service,

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W.P.(C) No. 32835/2007

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as indicated in Ext.R4(j). The learned Counsel for the Panchayat, however, contended that the Special Leave is still pending before the Hon'ble Supreme Court. That, however, is not a matter for consideration before this Court since it is between the alleged encroachers and respondents 4 to 17, who are the legal heirs of the original Kuthakapattom holder.

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In the present case, we are concerned only with the cancellation effected of the Kuthakapattom at Ext.P3, which was overturned by the Land Revenue Commissioner at Ext.P4. The Land Revenue Commissioner has detailed the various proceedings and facts in his order dated 26.12.2005, at Ext.P4, and has found so, at the concluding portion, which resulted in the District Collector's order being set aside:

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“1. The Civil Court had come to the conclusion that the Revision Petitioners had possessory right over the property.

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W.P.(C) No. 32835/2007

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Kuthakapattom was without a time limit. Therefore, there was no question of non renewal of the Kuthakapattom.

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Kuthakapattom due have been paid when notice was issued for payment of the same.

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Though the property vests on the Panchayat as a result of the Panchayat Raj Act, all arguments entered into are binding on the Panchayat as successor in interest.”

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The violation alleged, even according to the District Collector's order, was the execution of a partition deed and the non payment of rent, which are said to be mandatory conditions as per Form D of the Rules of 1947; the violation of which would entail cancellation. The allegation of alienation was only based on the execution of a partition deed between the legal heirs of the original lease holder, after his death, which cannot be said to be alienation of land, especially since

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W.P.(C) No. 32835/2007

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undisputedly the Kuthakapattom rights are heritable [Shahul Hassan Musaliar v. State of Kerala - 2016 (2) KLT SN 58 (C.No.70)] .

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The next ground raised was the non payment of rent, which, on facts, was found to have been paid when notice was issued for payment. The learned Counsel for the Panchayat submits that when the payment is not made within the stipulated time, then, there would be a ground for cancellation. The same has to be accepted, but, however, when payment is made, even prior to the conclusion of the proceedings, definitely there could be no cancellation effected on that ground. The factual finding in Ext.P4, that payments were made on issuance of notice, is accepted by both parties. The payment is also said to have been made in the year 1999, long before Ext.P3 order was passed. This Court does not find any reason to interfere

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W.P.(C) No. 32835/2007

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with Ext.P4 order.

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The contention raised by respondents 4 to 17 that the Collector could not have cancelled the Kuthakapattom granted to the predecessor-in-interest for reason of the Tahsildar being the original authority who granted the lease, would be left open, since the Collector's order has been set aside by the Land Revenue Commissioner, which order is sustained herein. Upholding the order impugned herein the writ petition is found to be devoid of merit and the same is dismissed.

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Respondents 4 to 17 would be entitled to take proceedings in accordance with law for re-possession of the property. The public purpose, urged by the Panchayath, would have to be addressed in appropriate proceedings; in accordance with law, which, if permissible, would be unaffected by the order sustained

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W.P.(C) No. 32835/2007

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herein; which only sets aside the cancellation made on grounds of alienation by reason of execution of partition deed and non-payment of lease rent. Even a fresh proceeding initiated for cancellation, on similar grounds of alienation or non-payment of lease rent, sustainable on subsequent facts and also any other ground, would be unaffected by the order now sustained. No Costs.

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Sd/K.VINOD CHANDRAN, JUDGE

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jjj 15/10/16

Kanjiramkulam Grama Panchayat v. State of Kerala

Case brief

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Kanjiramkulam Grama Panchayat v. State of Kerala

Case brief

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