Remanded

T.Abdul Khader Haji v. the Special Tahasildar (L.a) Kasaragod

Kerala HC1 Jul 2016WP(C)/8661/2006

Case brief

AI extract

What is this about?

The High Court set aside an order dismissing the petitioner's revision petition regarding a land assignment. The Court found procedural lapses and a discrepancy in assignment facts warranting remand to the Appellate Authority for a fresh inquiry with proper notice to both parties.

What did the court decide?

Exhibit P10 set aside; matter remanded to Appellate Authority for fresh consideration with specific instructions to verify notice procedures and consider conflicting facts.

T.Abdul Khader Haji Vs the Special Tahasildar (L.a) Kasaragod — 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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FRIDAY, THE 1ST DAY OF JULY 2016/10TH ASHADHA, 1938

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W.P(C).No.8661 of 2006 (F)

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PETITIONER(S):

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T.ABDUL KHADER HAJI, S/O.DIDPA AHAMED, RESIDING AT BEVINJE, CHENGOLA VILLAGE, POST THEKKIL FERRY, KASARAGOD TALUK.

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BY ADV. SRI.P.K.MUHAMMED

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RESPONDENT(S):-

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1. THE SPECIAL TAHSILDAR (L.A), KASARAGOD.

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2. THE REVENUE DIVISIONAL OFFICER, KASARAGOD, AT KANHANGAD.

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3. THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, TRIVANDRUM-33.

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4. SRI.CHOUKKARU, S/O.MADARA, ASAD NAGAR, KUDLU VILLAGE AND POST, KASARAGOD TALUK.

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5. BAPPAN KUTTY, RESIDING AT BERKA, CHENGOLA VILLAGE AND POST, KASARAGOD TALUK.

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W.P.(C) NO.8661 OF 2006-F - 2 -

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*** ADDL.6TH RESPONDENT IMPLEADED:**

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ADDL.R6. CHENGOLA GRAMA PANCHAYAT, REPRESENTED BY THE SECRETARY, CHENGOLA, KASARAGOD.

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***[ADDITIONAL 6TH RESPONDENT IS IMPLEADED AS PER ORDER ON I.A.NO.13891 OF 2007 DATRED 22.10.2007].**

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R1 TO R3 BY SR.GOVERNMENT PLEADER SRI.MANOJ P.KUNJACHAN. R5 BY ADV. SRI.KODOTH SREEDHARAN R6 BY ADV. SRI.S.SANTHOSH KUMAR.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-

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W.P.(C) NO.8661 OF 2006-F

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1	TRUE COPY OF THE ORDER IN L.A.NO.221/1995/CHENGALA PASSED BY THE 1ST RESPONDENT DT.2.8.1996.
EXT.P2	TRUE COPY OF THE NOTICE ISSUED BY THE SECRETARY, CHENGALA GRAMA PANCHAYAT TO THE THAHASILDAR, KASARAGOD DT.20.3.2000.
EXT.P3	TRUE COPY OF THE NOTICE ISSUED BY THE THAHASILDAR, KASARAGOD TO THE 4TH RESPONDENT DT.20.3.2000.
EXT.P4	TRUE COPY OF THE APPEAL MEMORANDUM AA.13/2000 FILED BEFORE THE 2ND RESPONDENT AGAINST EXT.P1 ORDER IN AUGUST, 2000 BY THE PETITIONER.
EXT.P5	TRUE COPY OF THE SALE DEED EXECUTED BY THE 4TH RESPONDENT IN FAVOUR OF THE 5TH RESPONDENT DATED 4.10.1999.
EXT.P6	TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT IN A.A.NO.13/2000 DATED 3.10.2001.
EXT.P7	TRUE COPY OF -D0- PASSED BY -DO- IN LR(J2)40126/2000/ DATED 8.7.2003.
EXT.P8	TRUE COPY OF THE ORDER PASSED BY THE SUB-COLLECTOR, KASARAGOD DT.10.2.2005.
EXT.P9	TRUE COPY OF REVISION PETITION FILED BEFORE THE 3RD RESPONDENT IN LA(J)3416/2005 DATED 28.3.2005 BY THE PETITIONER.
EXT.P10	TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT IN LR(J2)17156/05 DATED 17.2.2006.

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RESPONDENT'S EXHIBITS:-

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-----------------------NIL.

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Vku/[ true copy ]

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K. Vinod Chandran, J

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-------------------------------------W.P.(C) No.8661 of 2006-F

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--------------------------------------Dated this the 01^st day of July, 2016

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JUDGMENT

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The notice issued to the 4^th respondent has not

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been served.

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The challenge in the writ petition is to Exhibit P10

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order of the revisional authority under the Kerala Government Land Assignment Act, 1960 [for brevity “Assignment Act”]. The petitioner claimed that the petitioner was residing in Resurvey No.134/2 of Chengala Village, adjoining which there was a strip of Government land, having an extent of 0.13 cents in Resurvey No134/1A, 1D of Chengala Village, Kasaragod Taluk. The petitioner contended that the only access to reach the petitioner’s property is through the said strip of land. However, no application for assignment is seen to have been given by the petitioner.

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WP(C) No.8661 of 2006

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Be that as it may, the land was assigned to the 4^th respondent by Exhibit P1. The same was challenged by the petitioner before the Revenue Divisional Officer [for brevity “RDO”]; which challenge was allowed as per Exhibit P6. The RDO found that the assignment was made on the day on which the proposals were received by the Tahsildar (LA), Kasaragod, i.e., on 02.08.1996. The land was found to have been assigned without any proper enquiry and the age of the assignee in the application was shown to be 51 years, while in the sale deed, etc. the age was recorded as 75 years. A show cause notice was issued to the assignee for cancellation of assignment, which was not responded to. The appeal, hence, stood allowed, cancelling the assignment. The 4^th respondent, with the 5^th respondent, filed a revision before the Commissioner for Land Revenue, which was disposed of by Exhibit P7. In Exhibit P7, it was specifically noticed trhat the land was required for widening of a road. Only on the ground that the assignment would cause hindrance to the widening of the public road and

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WP(C) No.8661 of 2006 - 3 -

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the accessibility of the respondent from the public road, the matter was directed to be gone into afresh by the RDO after notice to both parties.

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The RDO again considered the issue in Exhibit P8 and found that the land was assigned earlier on misrepresentation of facts. A revision was filed before the Commissioner for Land Revenue, which stood disposed of by Exhibit P9. In Exhibit P9, two contentions were taken; one that the assignment has been made on mis-representation of facts and the other of widening of the road. The finding entered by the Commissioner, in Exhibit P10, is as follows:

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“1. It is completely unfair to have cancelled the assignment of land to the respondent on the ground of misrepresentation of facts, without mentioning what the misrepresentation was. It has to be kept in mind that the assignee was poor scheduled caste person.

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After assigning the land, it was unfair to cancell the same on the ground that the land is required for widening of the road. Revenue Department should have known the fact while processing the file for assignment”.

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WP(C) No.8661 of 2006 - 4 -

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The learned Counsel for the 5^th respondent

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substantially represents the interest in the land especially since the 5^th respondent claims that he is in possession of the land and is a bona fide purchaser from the 4^th respondent. Hence, the fact that the 4^th respondent has not been served would not be relevant. The 5^th respondent, definitely, if the proceedings go against him, would have remedy to proceed against the 4^th respondent.

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It is to be noticed that the possession claimed by the 5^th respondent is disputed by the petitioner. Both are submissions across the Bar and this Court does not see any reason to find possession of the land on either; from the records produced in the writ petition. Looking into Exhibit P10, which is extrtacted hereinabove, the learned Counsel for the 5^th respondent submits that the petitioner had attempted to take possession of the property by initiating proceedings for widening of the road with the help of the Panchayat, which itself discloses his mala fides .

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WP(C) No.8661 of 2006 - 5 -

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This Court would not say anything about the

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finding made by the Commissioner as to the land being required for the widening of the road. If at all the widening was proposed after the assignment was made and the assignment is to be upheld, then necessary acquisition proceedings would have to be taken, if there is no voluntary surrender.

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Exhibit P10 order was from an appeal from Exhibit P8 order. True Exhibit P8 does not contain any reasons;

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ten the Commissioner of Land Revenue ought to have remanded the matter for fresh consideration. This Court is persuaded to observe so, going by the earlier order of the RDO at Exhibit P6. The RDO had considered the appeal first, filed by the petitioner and had found that the assignment proposal was received by the Tahsildar (LA), Kasaragod on 02.08.1996 and orders of assignment was issued on the same day itself. There was also stated to be a discrepancy insofar as the age of the assignee was concerned. When a show cause notice was issued to the assignee at that stage, no response was made. A

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WP(C) No.8661 of 2006 - 6 -

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reading of Exhibit P6 would clearly indicate that no notice under Rule 12(1) of the Kerala Land Assignment Rules, 1964 [for brevity “Assignment Rules”] was published.

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In the aforesaid circumstance, it cannot be said that the finding of the Land Revenue Commissioner in Exhibit P10 is correct. Consequently, this Court would set aside Exhibit P10 and remand the matter for fresh consideration by the Appellate Authority. The Appellate Authority shall issue notice to both sides, specifically looking at Exhibit P6 order of the RDO and verifying whether a notice under Rule 12(1) of the Assignment Rules was made. The observation made by this Court with respect to the factum of the absence of a notice under Rule 12(1) is only on the statements in Exhibit P6 and a proper verification of the files would be necessary. The observations made herein shall not bind the officer, if in fact a notice has been issued.

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Writ petition is allowed. Exhibit P10 is set aside. The decision in appeal shall be taken within a period of six months

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WP(C) No.8661 of 2006

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from the date of receipt of a certified copy of this judgment, with

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notice to the petitioner, the legal representatives of the 4^th respondent, the 5^th respondent and the 6^th respondent.

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Sd/-

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vku/-

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K.Vinod Chandran Judge.

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[ true copy ]

T.Abdul Khader Haji v. the Special Tahasildar (L.a) Kasaragod

Case brief

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What did the court decide?

T.Abdul Khader Haji v. the Special Tahasildar (L.a) Kasaragod

Case brief

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What did the court decide?

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