Disposed

K.J. Alaxender v. R. Girija

Kerala HC19 Mar 2018Con.Case(C)/2036/2016

Case brief

AI extract

What is this about?

Alternative land assignment resolved a dispute over land retained for bus stand development. The court closed contempt proceedings, recording unrestricted alienation of the replacement land. It disposed of the connected writ petition with directions for inspection, demarcation, removal of encroachment and monitoring of the original land's use.

What did the court decide?

Unrestricted alienation undertaking recorded; inspection, demarcation, encroachment removal and monitoring directed to safeguard exclusive bus stand use of the original land.

K.J. Alaxender Vs R. Girija — Municipal and Town Planning | Kerala HC (2018)

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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 ALEXANDER THOMAS

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MONDAY, THE 19TH DAY OF MARCH 2018 / 28TH PHALGUNA, 1939

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Con.Case(C).No. 2036 of 2016

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(AGAINST THE JUDGMENT IN OP.NO.21189/2001 DATED 31/3/2016)

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PETITIONER/PETITIONER IN OP:

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K.J.ALAXANDER, AGED 77 YEARS, S/O.LATE K.C.JOHN, KOIKKAPARAMBIL HOUSE, KOZHENCHERRY MURI, KOZHENCHERRY VILLAGE, PATHANAMTHITTA DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER S.N.PILLAI, AGED 79 YEARS,S/O.NARAYANA PILLAI, CHAITHANYA, KARUKACHAL, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT.

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BY ADVS.SRI.D.KISHORE SMT.MINI GOPINATH SMT.MEERA GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA)

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RESPONDENT(S):

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1. SMT. R.GIRIJA,

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(AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER), DISTRICT COLLECTOR,PATHANAMTHITTA-689 645

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2. SATHEESH KUMAR,

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(AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER), TAHSILDAR, KOZHENCHERY -689 641

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3. S.M.VIJAYANAND, (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER), CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM -695 001

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R1 TO R3 BY SPL.GOVERNMENT PLEADER SRI. MOHAMMED ANSAR BY SRI.THOMAS ABRAHAM,SC KOZHENCHERY GRAMA PANCHAYAT

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THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 19-03-2018, ALONG WITH WP(C).NO.35298 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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6/4/2018

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Con.Case(C).No. 2036 of 2016

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEXURE 1 TRUE COPY OF THE JUDGMENT DATED 31/3/2016 IN OP.21189/2001 OF THIS HONOURABLE COURT.

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ANNEXURE II TRUE COPY OF THE SALE DEED DATED 23/5/2017

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RESPONDENT'S ANNEXURES:

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ANNEXURE R1(a) TRUE COY OF THE CANCELLATION ORDER DATED 10/12/1996 ANNEXURE R1(b) TRUE COPY OF THE LETTER NO.C5/10357/16 DATED 17/12/2016 OF THE SECRETARY, KOZHENCHERRY GRAMA PANCHAYAT ANNEXURE R1(c) TRUE COPY OF THE AGREEMENT EXECUTED ON 16/10/2016 ANNEXURE R1(d) TRUE COPY OF THE LETTER NO.A7-14772/92 DATED 26/5/2017 ANNEXURE R1(e) TRUE COPY OF THE LETTER NO.B3-214/17 DATED 13/6/2017 ANNEXURE R1(f) TRUE COPY OF THE LETTER NO.C3-2715/17 DATED 29/5/17 ANNEXURE R1(g) TRUE COPY OF THE LETTER NO.B3-1495/17 DATED 16/6/2017 ANNEXURE R1(e) & R1(f) FILED ALONG WITH COUNTER AFFIDAVIT DATED 17/1/2018 ANNEXURE R1(e) TRUE COPY OF THE PROCEEDINGS NO.B3-214/17 OF THE TAHSILDAR, THIRUVALLA DATED 08/01/2018 ANNEXURE R1(f) TRUE COPY OF THE PATTA NO.LA/1/01/18/KADAPPRA ISSUED TO THE PETITIONER.

/TRUE COPY/

P.A.TO JUDGE

sts 6/4/2018

ALEXANDER THOMAS, J.

C.O.C.No.2036/2016 in O.P.No.21189/2001

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W.P.(C).No.35298 of 2016

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Dated this the 19th day of March, 2018.

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J U D G M E N T

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C.O.C.No.2036/2016

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The aforementioned Contempt of Court Case arises out of the non-compliance of the specific directions issued by this Court in the judgment dated 31.3.2016 finally disposing of O.P.No.21189/2001 filed by the present petitioners. The said Writ Petition was filed by the petitioner to mainly challenge the impugned Ext.P-8 proceedings dated 10.12.1996 issued by the respondent-Thahsildar, Kozhenchery, cancelling Ext.P-2 patta dated 9.5.1967 assigning land to the petitioner under the Kerala Land Assignment Act and the Land Assignment Rules framed thereunder. This Court as per elaborate consideration and after hearing both the respondents, viz, the respondent-State Revenue authorities as well as respondent Kozhenchery Grama Panchayath, had finally disposed of the said Original Petition by allowing the prayers therein with the following directions:-

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C.O.C.No.2036 Of 2016, etc.

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(i) It is declared that the impugned Ext.P-8 cancellation order is plainly illegal and ultravires the provisions contained in the KeralaGovernment Land Assignment Act, 1960 and Kerala Land Assignment Rules, 1964 and that it is highly arbitrary, unreasonable, perverse and improper.

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(ii) Respondents 2 to 4 will take serious endeavours and consider whether alternate land as suggested above could be assigned to the petitioner in lieu of Ext.P-2 land. It should also be specifically considered whether it is feasible to assign alternate land as pointed out in Ext.P-26. The entire steps in the matter of consideration and finalisation of assignment of alternate land to the petitioner in lieu of Ext.P-2 should be completed by respondents 2 to 4 within a period of 6 months from the date of production of a certified copy of this judgment. In the eventuality of assignment of such alternate land to the petitioner within the above time limit, then the petitioner need not be given restoration of possession of Ext.P-2 land and then that land could be given to the 1st respondent Panchayat for its developmental activities.

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(iii)(a) In case alternate land in lieu of Ext.P-2 is not assigned and granted to the petitioner within the aforestated period of 6 months, then Ext.P-8 and all consequential proceedings arising therefrom will stand automatically rescinded and set aside. In such eventuality, respondents 2 to 4 shall then forthwith restore possession of Ext.P-2 land to the petitioner and respondents 2 & 3 will take the assistance of the Taluk Surveyor concerned to demarcate and fix the boundary of the land covered by Ext.P-2 so that there is no dispute regarding the identity and boundaries of the said property. In such eventuality the process in this regard shall be completed within a period of one month from the date of expiry of earlier stipulated period of 6 months.

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(iii)(b) In the eventuality covered by direction (iii)(a) (supra), the petitioner will be at liberty to then submit an application for grant of building permit in accordance with the provisions contained in the applicable Rules before the 1st respondent-Grama Panchayath and the same shall be considered and decision taken thereon in accordance with law within a period of 6 weeks from the date of receipt of such application. It is made clear that in such eventuality, the 1st respondent shall not unnecessarily harass or victimise the petitioner and shall take a decision on the request for building permit of the petitioner in accordance with law. If the officials of the 1st respondent-Panchayath unnecessarily harasses the petitioner in that regard, this Court will be constrained to take a very serious view in the matter.

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C.O.C.No.2036 Of 2016, etc.

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The present Contempt of Court case arises out of the noncompliance of the directions issued in the said Original Petition by this Court as per judgment rendered on 31.3.2016. After issuance of notice, the learned Special Government Pleader (Revenue) appearing for the respondent-State Revenue authorities concerned, on the basis of instructions from the Revenue authorities concerned, more particularly, the District Collector, Pathanamthitta and the Thahsildar, Kozhencherry, submitted before this Court that the said authorities would certainly comply with the direction No.(ii) of the above said judgment in the Original Petition by allotting equivalent alternative land to the petitioner so that they will not have any obligation to obey the main direction to restore the said land. The said submission was made by the respondent-State Revenue authorities concerned with the objective so that the land, which was originally assigned to the petitioner should be given for the development of the Panchayath Bus Stand, which is being run by the Kozhenchery Panchayath. Since alternative land was not available in the vicinity of the Kozhenchery Bus Stand, it was submitted by the Revenue authorities concerned that alternative land will be allotted to the petitioner in Kadappra Village in Thiruvalla Taluk and that considering the lesser value in the newly

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C.O.C.No.2036 Of 2016, etc.

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offered alternative land area, an extent of 14.217 cents of land will be allotted to the petitioner in lieu of Ext.P-2 patta land coming to an extent of 5.924 cents in Kozhencherry Taluk in Pathanamthitta District. It was also undertaken by the Revenue authorities concerned that since the petitioner was initially assigned Ext.P-2 land as early as on 9.5.1967, in recognition of his service rendered to the Indian Air Force, the present alternative land, which is being offered thereof is in lieu of the direction issued by this Court as stated above and that the ordinary rule of restricting alienation for freshly assigned land will not be applicable to the newly allotted alternative land inasmuch as the petitioners restrictive period of alienation has expired long ago based on Ext.P-2 patta. The petitioner had insisted that restrictive limit for alienation, which could be ordinarily imposed on the freshly assigned land should not be applicable to his case as his desire was to construct residential building in Kozhencherry town, where his close relatives are residing and that if he is allotted the alternative land in Kadappra Village in Thiruvalla Taluk, he has no plan to settle in that place and the only option for him to sell that land and purchase other land in Kozhencherry so as to set up a residential building to settle there. The petitioner, who is a former personnel of the Indian Air Force, is now

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C.O.C.No.2036 Of 2016, etc.

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aged more than 80 years. Since the respondent-Revenue authorities had agreed for assignment of land as stated herein above with the specific undertaking and assurance that the petitioner can sell the newly assigned land at any time as per his wish, the petitioner had agreed to accept the said offer made by the State Revenue authorities and more so, in deference to the wish expressed by this Court that the matter should be compromised amicably so as to drop the Contempt proceedings.

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Accordingly, this Court had passed a detailed order dated 4.12.2017 in this Contempt proceedings. It may be relevant to note that the total extent of the original assigned land in Ext.P-2 patta in Kozhenchery Village is 5.924 cents and going by the equivalent values of the land shown for Kadappra Village as per the details provided by the Thahsildar, Kozhencherry, and District Collector, the corresponding proportionate area of land value in the proposed property in Kadappra Village in Thiruvalla Taluk, would come to 14.217 cents as the fair value of the originally assigned land in Kozhencherry was found to be 240% higher than that of the fair value of the newly proposed land in Kadappra Village. Accordingly, this Court passed a detailed order dated 4.12.2017 in this Contempt proceedings which reads as follows:

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C.O.C.No.2036 Of 2016, etc.

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'This Contempt Petition arises out of non-compliance of the directions issued by this Court in the judgment rendered on 31.3.2016 in the Writ Petition filed by the petitioner herein as O.P.No.21189/2001. The above Original Petition was finally disposed of as per Anx.I judgment dated 31.3.2016 rendered by this Court with the following directions issued on pages 48 and 49 thereof, which read as follows:

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“(i) It is declared that the impugned Ext.P-8 cancellation order is plainly illegal and ultravires the provisions contained in the Kerala Government Land Assignment Act, 1960 and Kerala Land Assignment Rules, 1964 and that it is highly arbitrary, unreasonable, perverse and improper.

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(ii) Respondents 2 to 4 will take serious endeavours and consider whether alternate land as suggested above could be assigned to the petitioner in lieu of Ext.P-2 land. It should also be specifically considered whether it is feasible to assign alternate land as pointed out in Ext.P-26. The entire steps in the matter of consideration and finalisation of assignment of alternate land to the petitioner in lieu of Ext.P-2 should be completed by respondents 2 to 4 within a period of 6 months from the date of production of a certified copy of this judgment. In the eventuality of assignment of such alternate land to the petitioner within the above time limit, then the petitioner need not be given restoration of possession of Ext.P-2 land and then that land could be given to the 1st respondent Panchayat for its developmental activities.

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(iii)(a) In case alternate land in lieu of Ext.P-2 is not assigned and granted to the petitioner within the aforestated period of 6 months, then Ext.P-8 and all consequential proceedings arising therefrom will stand automatically rescinded and set aside. In such eventuality, respondents 2 to 4 shall then forthwith restore possession of Ext.P-2 land to the petitioner and respondents 2 & 3 will take the assistance of the Taluk Surveyor concerned to demarcate and fix the boundary of the land covered by Ext.P-2 so that there is no dispute regarding the identity and boundaries of the said property. In such eventuality the process in this regard shall be completed within a period of one month from the date of expiry of earlier stipulated period of 6 months.

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(iii)(b) In the eventuality covered by direction (iii)(a) (supra), the petitioner will be at liberty to then submit an application for grant of building permit in accordance with the provisions contained in the applicable Rules before the 1st respondent-Grama Panchayath and the same shall be considered and decision taken thereon in accordance with law within a period of 6 weeks from the date of receipt of such application. It is made clear that in such

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C.O.C.No.2036 Of 2016, etc.

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eventuality, the 1st respondent shall not unnecessarily harass or victimise the petitioner and shall take a decision on the request for building permit of the petitioner in accordance with law. If the officials of the 1st respondentPanchayath unnecessarily harasses the petitioner in that regard, this Court will be constrained to take a very serious view in the matter.

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The petitioner is an ex-service man, who was assigned patta (as per Ext.P-2 in the O.P.) in land assignment proceedings in LA No.123/1967 dated 9.5.1967 in respect of 5.924 cents of dry land in Sy.Nos.281/6-1, 281-6-2 and 281/6-3, of Kozhencherry village, Kozhencherry taluk, Pathanamthitta district in accordance with the provisions contained in Rule 7(2)(i) of the Kerala Land Assignment Rules, 1964. Since the respondents have not complied with either of the two alternative directions issued in the above judgment, the petitioner was constrained to institute the above contempt of court case.

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During the course of consideration of this contempt petition on various occasions, the respondents, more particularly the District Collector, Pathanamthitta, on the basis of the affidavits filed by that officer, had pointed out to this Court that the respondents were not in a position to comply with the direction to restore the 5.924 cents of originally assigned land, as it is situated very close to the Kozhencherry bus stand and as the said land is required for the development of the said bus stand and that the respondents are fully prepared to allot alternative land to the petitioner. Thereafter, it was appraised to this Court by the Special Government Pleader (Revenue) on the basis of the affidavits filed by the District Collector, that they could not identify any suitable alternative land for allotment to the petitioner, which is situated close by to the originally assigned land in Kozhencherry village and that alternative land is available for allotment/assignment to the petitioner in Kadappra village, Thiruvalla Taluk, Pathanamthitta district, which is more than above 30 kilometers away from the originally assigned land in Kozhencherry village.

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In response to the said affidavits filed by the respondent District Collector, the petitioner had filed an affidavit dated 14.3.2017 stating that the specific alternative direction issued by this Court in the above judgment was to allot alternative land which is situated at least within the distance of 5-8 kilometers from the originally assigned land, etc. and that the present alternative land pointed out in Kadappra Village in Thiruvalla Taluk is more than 25 kilometers from the present location, but that as a compromise to resolve the issues, he would be prepared to accept allotment of alternative land of about 20 to 25 cents in the eastern portion of the proposed property in Kadappra village, Thiruvalla Taluk, taking note of the high value of the originally assigned land of 5.924 cents, which is situated in the heart of Kozhencherry town.

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C.O.C.No.2036 Of 2016, etc.

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Thereafter, this Court had directed the District Collector to ascertain the fair value and market value of the originally assigned land and that of the alternative land, now newly proposed in Kadappra village in Thiruvalla Taluk, etc. In compliance with these directions, the District Collector has filed an affidavit dated 21.6.2017 along with Anx.R-1(d) therein, stating the fair value and market value of the private land adjacent to the alternative land proposed in Block No.3, survey No.62/1 in Kadappra village in Thiruvalla Taluk, as follows:

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“Block Sy. No. Notified fair value per Are. In Present Market value No. rupee in rupees 3 217/5-6 Rs. 1,25,000/Rs. 5,00,000/-”

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The fair value and market value of the private land near to the originally assigned land in survey Nos.281/6-1, 281/6-2, 281/6-3 of Kozhencherry village was also furnished in the said affidavit. But the learned Spacial Government Pleader (Revenue) fairly pointed out that the said figure quoted in page 2 of the affidavit dated 21.6.2017 of the District Collector was made without taking into consideration the facts and figures mentioned in the last paragraph of Anx.R-1(d) report dated 26.5.2017 submitted by the Tahsildar, Kozhencherry, wherein it is shown that the fair value of the land, which is near to the originally assigned land in Kozhencherry village, comes to Rs. 3 lakhs per Are and that the said figure can be taken as the fair value per Are of the land near to the originally assigned land in Kozhencherry village. So it is clearly admitted by the respondent authorities that the fair value of the land nearby to the proposed land in Kadappra village in Thiruvalla taluk comes to Rs.1,25,000/- per Are, whereas the fair value of the land near to the originally land in Kozhencherry village, Kozhencherry Taluk comes to Rs. 3 lakhs per Are. So the fair value of the originally assigned land in Kozhencherry village, Kozhencherry Taluk, is 2.4 times (240%) higher than that of the fair value of the newly proposed land in Kadappra village in Thiruvalla Taluk. The total extent of the originally assigned land in Kozhencherry village comes to 5.924 cents and therefore the corresponding proportionate area of land going by value in the proposed property in Kadappra village in Thiruvalla Taluk, would come to 14.217 cents (viz., 5.924 cents x 240/100 = 14.217 cents). The learned Special Government Pleader (Revenue) on the basis of the instructions of the District Collector and the other Revenue officials, has submitted that the said facts and figures borne out from Anx. R-1 (d) report of the Tahsildar, Kozhencherry Taluk, could be taken as the basis for finding out the proportionate area of land in the proposed property situated in Kadappra village in Thiruvalla Taluk. However, Sri.D.Kishore, learned counsel appearing for the petitioner, on the basis of the instructions of his party initially insisted that he would be satisfied only if the alternative land allotted in Kadappra village comes to at

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C.O.C.No.2036 Of 2016, etc.

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least 20-25 cents as it is far away from the originally assigned land in Kozhencherry and that the specific alternative direction issued by this Court is for assignment of alternative land, which is situated at least which a range of 5-8 kilometers from the originally assigned land, which is situated in the heart of Kozhencherry town. Further it is pointed out by the petitioner that he was born and brought up in Kozhencherry and that he wanted to construct a new residential unit in the originally assigned land and that he has no close relatives or family friends in the newly proposed place at Kadappra village, which is more than 30 kilometers away from Kozhencherry, etc.

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In order to resolve this impasse, this Court had impressed upon the learned counsel for the petitioner to persuade the petitioner to accept 14.217 cents of land in Kadappra village as an alternative land in order to put a quietus to all controversies, etc. On the basis of the instructions of the petitioner, Sri.D.Kishore, learned counsel appearing for the petitioner submitted that since this Court has made a suggestion, the petitioner is willing to accept the same, though with great reluctance in full deference to the wishes of this Court to put an end all controversies. But he would further point out that the originally assigned land was assigned to him as per Ext.P-2 as early as on 9.5.1967 and that the restriction regarding the 10 years period of alienation of that property has expired long ago and that if the respondent authorities treat the present allotment/assignment of land in Kadappra village as a new assignment with the restriction against alienability of the said land for another 12 years, etc. then the petitioner is not interested to accept the said offer as he does not intend to build any residential unit in that new place and he wants to sell off that property in order to buy another alternative property in Kozhencherry for setting up his residential unit and he cannot be subjected to the restriction that he should wait for another 12 years to alienate the land and that as he is a senior citizen, who is now nearing 80 years of age, he is not interested to wait for the period of long 12 years for alienability of the land, etc. and that he is willing to accept the said offer of assignment of alternative land of 14.217 cents in Kadappra village, if it is treated as if it were assigned on 9.5.1967 in the place of the originally assigned land, etc. so that he need not suffer the restriction of having to wait for a another long period to sell off the said land. Further that the petitioner has no close relatives or family friends in Kadappra village and therefore, he should not be made to face any hurdles regarding the alienability of the said land and that subject to this condition, he would reluctantly accept the suggestion of the court to accept 14.217 cents of alternative land in Kadappra village, etc. The said submission made on behalf of the petitioner appears to be fair and reasonable. It was in recognition of the petitioner's former service as a Indian Air Force personnel

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C.O.C.No.2036 Of 2016, etc.

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that the respondent authorities had assigned 5.924 cents of land as per the land Assignment proceedings, L.A.No.123/1967 dated 9.5.1967 and the restrictive period of alienability of the said land has expired long ago.

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It is evident from Ext.P-25 military service certificate issued by the Indian Air Force that the petitioner (whose date of birth is 4.3.1938) will complete the age of 80 years in just 3 months' time and it will be highly unjust and arbitrary to insist that he should again be asked to wait for more than a decade to enjoy alienability of the land, only for enabling the respondents to get over the contempt proceedings. Since the respondents are not complying with any of the two specific alternative directions issued in the judgment and the present proposal to allot another plot of land situated about 25-30 kms. away, the respondents cannot be permitted to take advantage of their own wrong. The learned Special Govt. Pleader (Revenue) on the basis of the instructions of the respondents, has submitted fairly that the respondents will not stand in the way in this Court issuing just and reasonable directions in this matter, in order to resolve the issues and that the respondents will comply with any such directions of this Court in this matter, so as to close the Contempt Proceedings.

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The alternative direction issued by this Court in the judgment was to allot/ assign alternative land, which is situated within close distance of 5-8 kilometers from Kozhencherry town. The present proposal made by the respondents is not in consonance even with the said alternative direction and therefore, in order to close the contempt proceedings in a manner which is just and fair to the petitioner, it is only proper that the said alternative assignment of land to be made in favour of the petitioner should be treated as if it was in place of the original assignment made on 9.5.1967 and that therefore, there should not be any further restriction on the right of the petitioner to alienate the said land proposed to be allotted in Kadappra village in order to enable him to sell the said land for purchasing alternative land in Kozhencherry town for setting up his residential unit, as his close relatives and family friends are all based in Kozhencherry and it will be highly unfair and unjust to insist that an a senior ex-service man who has honourably served the Nation's defence forces and that too, in India-China war, 1962, India-Pakistan wars of 1965 and 1971. So the petitioner should not be made to wait for another long period of 12 years for enjoying the right of alienation. Since the original assignment of land was made as early as in 1967, he had acquired the right to alienate the said land long ago in 1977 itself. If the alternative land was assigned in Kozhencherry in full consonance with this Court's judgment, then the petitioner could have settled in his place by setting up a residential unit. Since the new proposal made by the District Collector is of alternative assignment of land in a very far off place, where the petitioner has not any close relatives or friends, it is

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C.O.C.No.2036 Of 2016, etc.

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only fair and just that the abovesaid submission made by the petitioner is accepted.

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Accordingly it is ordered that the District Collector, Pathanamthitta and the Tahsildar, Kozhencherry Taluk, Kozhencherry shall forthwith take steps to allot/assign 14.217 cents of land in the eastern portion of the property, which has a total extent of about 41 cents of land situated in Kadappra village in Thiruvalla taluk in lieu and exchange of his Ext.P-2 land. This assignment should be made immediately and for this, no further permission or orders are required from the State Government or any such other officers, who are higher than the District Collector. The said alternative assignment/allotment of land to the petitioner in Kadappra village should be treated as if it was in place of the original assignment made in favour of the petitioner as early as on 9.5.1967 as per Ext.P-2 and any restrictive period of alienation of the property should be treated to have ended in terms of the conditions of assignment made for the original assigned land as per Ext.P-2 proceedings dated 9.5.1967 and this aspect should be specifically made clear in the proceedings of the Revenue officials concerned to be issued for the alternative land. The petitioner will be having the full freedom and right to sell the said alternative land coming to 14.215 cents in Kadappra village, Thiruvalla Taluk, at any time, if he so wishes to do. The proceedings in that regard for assignment/allotment of the alternative land of 14.215 cents of land in the eastern portion of the said proposed property in Kadappra village should be duly completed by the District Collector, Pathanamthitta and the Tahsildar, Kozhencherry Taluk, Kozhencherry, within two weeks from the date of receipt of a certified copy of this order. The District Collector should ensure that the said land is duly identified and demarcated with the assistance of the Taluk Surveyor and in the presence of the petitioner or his authorised representative.

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The learned Special Government Pleader (Revenue) will ensure that the copies of this order are immediately forwarded to the District Collector, Pathanamthitta and the Tahsildar, Kozhencherry Taluk, without any further delay for immediate compliance. The allotment should be made in such a manner that the land is situated on the eastern side of the property with the further condition that it should have road access in front of the property. Thereafter, the District Collector should file an affidavit reporting compliance of the abovesaid directions and a copy of the proceedings in that regard issued for alternative assignment/ allotment of land in Kadappra village should also be produced as annexure along with that said affidavit to be filed by the District Collector, Pathanamthitta.'

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C.O.C.No.2036 Of 2016, etc.

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Thereafter, the District Collector has sworn to an affidavit dated 16.1.2018 producing therewith Ext.R-1(e) land assignment proceedings dated 8.1.2018 and Ext.R-1(f) proforma patta. It was specifically endorsed in Ext.R-1(f) dated 8.1.2018 that Ext.R-1(e) has been issued in compliance with the order regarding the undertaking made by the authority in terms of the order dated 4.12.2017 passed in the Contempt proceedings. Ext.R-1(e) assignment proceedings No.B3-214/14 dated 8.1.2018 issued by the Thahsildar, Thiruvalla, assigning the above said

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14.217 cents of land in Kadappra Village reads as follows:

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"തതിരുവല്ല തഹസതിൽദദാരുടടെ നടെപടെതിക്രമമ (ഹദാജർ: ശശദാഭനചന്ദ്രൻ)

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ബതി.3-214/17 തതീയതതി: 08/01/2018

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വതിഷയമ: ശകേരളദാഭൂമതി പതതിവവ് നതിയമമ 1960- ശകേദാഴശഞ്ചേരതി തദാലൂകതിൽ, ശകേദായതികപറമതിൽ വതീടതിൽ, ശതീ.ടകേ.ടജ. അലകദാണ്ടർകവ് ബഹ. ശകേരള ഹഹശകദാടെതതിയുടടെ സതി.സതി.(സതി)2036/16-ആമ നമർ ശകേസതിടല ഉത്തരവവ് പ്രകേദാരമ പടയമ അനുവദതിചവ് ഉത്തരവദാകുന്നതവ് സമബനതിചവ്.

¶93

സൂചന: 1. ബഹ. ശകേരള ഹഹശകദാടെതതിയുടടെ 04/02/2017-ടല സതി.സതി. (സതി)2036/16-ആമ നമർ ശകേസതിടല ഉത്തരവവ് 2. ബഹ. ജതില്ലദാ കേളക്ടറുടടെ 14/12/2017 ടലയുമ, 06/01/2018 ടലയുമ സതി.10-48502/97-ആമ നമർ കേത്തവ്.

¶94

¶95

ശകേദാഴശഞ്ചേരതി തദാലൂകതിൽ, ശകേദാഴശഞ്ചേരതി വതിശല്ലജതിൽ, ശകേദായതികപറമതിൽ, ശതീ.ടകേ.ടജ. അലകദാണ്ടർകവ് ശകേദാഴശഞ്ചേരതി

¶96

::13::

¶97

C.O.C.No.2036 Of 2016, etc.

¶98

വതിശല്ലജതിൽടപ്പെട വണ്ടതിശപ്പെട എന്ന സ്ഥലത്തവ് സർടവ്വെനമർ 281/6-ൽ 5.924 ടസനവ് സ്ഥലമ ഉൾടപ്പെട്ടുവരുന്ന ഭൂമതിയവ് 1967-ടല ലദാൻഡവ് അഹസൻടന്മെനവ് പ്രകേദാരമ പടയമ നൽകേതിയതിരുന്നതദാണവ്. 2001-ൽ ശകേദാഴശഞ്ചേരതി തഹസതിൽദദാരുടടെ ഉത്തരവവ് പ്രകേദാരമ ടപദാതുവതികേസനത് ത നദായതി ടെതി സ്ഥലങ്ങൾകവ് നൽകേതിയതിരുന്ന പടയമ റദവ് ടചയ്യുകേയുമ, സർകദാർ ശകേദാഴശഞ്ചേരതി പഞ്ചേദായത് ത ടന വതികേസനത് ത നദായതി വതിടവ് നൽകേതിയതിരുന്നതുമദാണവ്. എന്നദാൽ ഈ നടെപടെതിടയ ശചദാദദമ ടചയവ് ശതീ.ടകേ.ടജ. അലകദാണ്ടർ, ശകേദായതികപ്പെറമതിൽ എന്നയദാൾ ഒ.പതി.21189/01-ആമ നമരദായതി ബഹ.ഹഹശകദാടെതതിയതിൽ ശകേസവ് ഫയൽ ടചയ്യുകേയുമ, അതതിടന അടെതിസ്ഥദാനത് ത ൽ ടെതിയദാനവ് ശകേദാഴശഞ്ചേരതി ബസവ് സദാനതിടന 05 മുതൽ 08 കേതി.മതീ. ചുറ്റളവതിനുളതിൽ 6.8 ടസനവ് സ്ഥലമ നൽകേണടമന്നവ് ഉത്തരവദായതിട്ടുളതുമദാണവ്. വതിധതിനദദായത് ത ൽ പരദാമർശതിചതിട്ടുളതുമ പതതിവതിനവ് അനുശയദാജദമദായതുമയ സ്ഥലമ ടെതി.പ്രസദാവതിച ചുറ്റളവതിനുളതിൽ ലഭദമല്ലദാതതിരുന്ന സദാഹചരദത് ത ൽ തതിരുവല്ല തദാലൂകതിൽ, കേടെപ്ര വതിശല്ലജതിൽ ശബദാകവ് 3-ൽ, റതീസർശവ്വെ 62/1 ൽടപ്പെട 40 ടസശനദാളമ ഭൂമതി ലഭദമദാടണനമ ബഹ. ജതില്ലദാ കേളക്ടർ ശകേദാടെതതിയതിൽ ശബദാധതിപ്പെതിചതിട്ടുളതുമദാണവ്.

¶99

ബഹ. ശതീ.ടകേ.ടജ. അലകദാണ്ടർ ശകേരള ഹഹശകദാടെതതി മുൻപദാടകേ ഫയൽ ടചയ സതി.സതി.(സതിവതിൽ)2036/16-ആമ നമർ ശകേസതിടല വതിധതിനദദായത് ത ൽ, ടെതിയദാനവ് കേടെപ്ര വതിശല്ലജതിടല ശബദാകവ് 3, റതീ സർടവ്വെ 62/1 ൽടപ്പെട 14.217 ടസനവ് സ്ഥലമ പതതിചവ് നൽകുവദാൻ ഉത്തരവദായതിട്ടുളതദാണവ്. ടെതി ഉത്തരവവ് പ്രകേദാരമ ശതീ.ടകേ.ടജ. അലകദാണ്ടറുടടെ

¶100

പവർ ഓഫവ് അശറ്റദാർണതി ശഹദാൾഡറദായ ചങ്ങനദാശശ്ശേരതി തദാലൂകതിൽ, കേറുകേചദാൽ, ഹചതനദ വതീടതിൽ, ശതീ.എസവ്.എൻ. പതിള എന്ന കേകതി അശപക സമർപ്പെതിചതിരുന്നതുമ, ബഹ.ശകേദാടെതതി ഉത്തരവതിടല നതിർശദശപ്രകേദാരമ പ്രസ് ത ു സ്ഥലമ ശതീ.ടകേ.ടജ. അലകദാണ്ടർ ശകേദായതിപ്പെറമതിലതിടന പവർ ഓഫവ് അശറ്റദാർണതി ശഹദാൾഡറദായ ശതീ.എസവ്.എൻ. പതിളയുടടെ സദാന്നതിദദത് ത ൽ അളന്നവ് പടയ ശബദാദദടപ്പെടെതിത് ത യതിട്ടുളതദാണവ്. നടെപടെതികേൾ പൂർത് ത കേരതിചതിട്ടുളതുമദാണവ്.

¶101

ശമൽ സദാഹചരദത് ത ൽ തതിരുവല്ല തദാലൂകതിൽ കേടെപ്ര വതിശല്ലജതിൽ, ശബദാകവ് 3 ൽ, റതീസർടവ്വെ 62/1 ൽടപ്പെട 14.217 ടസനവ് സ്ഥലമ ശകേദാഴശഞ്ചേരതി വതിശല്ലജതിൽ, ശകേദായതിപ്പെറമതിൽ വതീടതിൽ ശതീ.ടകേ.ടജ. അലകദാണ്ടറുടടെ ശപരതിൽ പതതിചവ് നൽകുന്നതതിനവ് ഇതതിനദാൽ ഉത്തരവദാകുന.”

¶102

Ext.R-1(f) proforma patta issued by the said Thahsildar under Rule 9(2) of the Land Assignment Rules in respect of the land coming to an extent of 14.217 reads as follows:

¶103

::14::

¶104

C.O.C.No.2036 Of 2016, etc.

¶105

“ APPENDIX II FORM of PATTA |See Rule 9(2)|

¶106

Number: LA/01/185/KADAPRA Taluk: THIRUVALLA Village: KADAPRA Pattadar: K.J.ALEXDANDER, KOIKAPARAMPIL

¶107

KOZHENCHERRY

¶108

The amount of tax as per this patta should be paid to the Village Officer or the Village Assistant according to the rate mentioned below and receipt obtained therefor.

¶109

Station: THIRUVALLA Sd/Date Tahsildar

¶110

AS PER ORDER IN CC(CIVIL) NUMBER 2036/16 DATED 4.12.2017 OF HONOURABLE HIGH COURT

¶111

Kist Amount

¶112

Rs. P.

¶113

Survey Number BLOCK NUMBER: 3, SURVEY NUMBER: 62/1 2. Sub division Number

¶114

Wet or dry: DRY Acre (Hectares) Cents (Ares) 14.217 CENTS 5.75 ARES 4. Area 14.217 CENTS (5.75 ARES) 5. Tax 6%

¶115

DECLARATION

¶116

I declare that I shall bind myself to the conditions specified below.

¶117

Sd/-

¶118

Assignee S.N.Pillai Power of Attorney K.J.Alexander”

¶119

When the matter has been taken up for consideration on 17.1.2018,

¶120

learned counsel for the petitioner had made some submission on which the Special Government Pleader (Revenue) and the Standing Counsel for the respondent Panchayath have sought time to get instructions and

¶121

said order reads as follows:

¶122

::15::

¶123

C.O.C.No.2036 Of 2016, etc.

¶124

“Sri.D. Kishore, learned counsel for the petitioner submits on the basis of the instructions from his party that the petitioner is prepared to accept the offer made by the State Revenue authorities concerned as per Annexures R1(e) and R1(f), provided the State and Panchayat concerned withdraw their respective Writ Appeals which have been preferred to challenge the judgment in the present Original Petition, O.P. No.21189 of 2001. Sri.D. Kishore, learned counsel for the petitioner further submits that the above said submission has been made by the petitioner as he is having serious apprehension that in case the present offer is accepted by him and Contempt Case is closed, the State authorities and the Panchayat may further proceed with the Writ Appeals and that may place him in a detrimental position and that there should be clarity about the finalisation of the disputes between the parties which arose out of O.P. No.21189 of 2001.

¶125

Further Sri.D. Kishore, counsel for the petitioner submits that the State and the local Panchayat have taken the stand that they had preferred the Writ Appeals mainly to the main direction No.(ii) of the judgment dated 31.03.2016 in the OP and that they do not have any grievance against the alternate direction No.(iii) of that judgment. That the petitioner would accept the present offer in compliance with direction No.(iii) and that he will not press for direction No.(ii), for which the State and the Panchayat should withdraw their Writ Appeals, so that there is a complete quietus to the litigative proceedings pending for a long time and that the petitioner who is aged about 80 years, should not subjected to the tensions of litigation in this issue, any further.

¶126

Sri.K.J.Mohamed Anzar, learned Special Government Pleader (Renevenue) and Sri.Thomas Abraham, learned Standing Counsel appearing for the Kozhencery Panchayat submit that a week's time may be given to them to get instructions from their respective parties regarding the submission now made by the petitioner. Accordingly, at the request of both sides, list this matter on 01.02.2018.

¶127

Handover copy of this order to both sides and also to Sri.Thomas Abraham, learned Standing Counsel appearing for the Kozhenchery Panchayat om connected W.P.(C) No.35298 of 2016.”

¶128

Later, when the matter was taken up for consideration,

¶129

learned Special Government Pleader appearing for the State Revenue authorities as well as Thahsildar, Kozhenchery and the learned Standing

¶130

::16::

¶131

C.O.C.No.2036 Of 2016, etc.

¶132

Counsel for Kozhenchery Grama Panchayath have submitted that since the petitioner is fully accepting the offer of the alternative land as per Exts.R-1(e) and (f) in compliance with the direction in the judgment in the Original Petition, the respondent authorities concerned and the respondent Kozhenchery Panchayath are willing to withdraw W.A.No.2378/2016 (filed by the State) and W.A.No.2335/2016 (filed by the Kozhenchery Panchayath) inasmuch as the Writ Appeals have become infructuous since the petitioner is fully satisfied with the direction No.(ii) and that the only grievance which constrained them to file Writ Appeals was regarding the main direction No.(i). As the petitioner agreed that he is not pressing for main direction No.(i) and he is fully satisfied with the direction No.(ii), it is now submitted by Sri.K.J.Mohammed Anzar, learned Special Government Pleader appearing for the respondent Revenue authorities and Sri.Thomas Abraham, the learned Standing Counsel for Kozhenchery Grama Panchayath that the said authorities have already withdrawn W.A.Nos.2378/2016 and 2335/2016 in the light of the subsequent developments. Learned Special Government Pleader appearing for the respondent Revenue authorities and the learned Standing Counsel for Kozhenchery Grama Panchayath have also made available copies of the separate judgments dated

¶133

::17::

¶134

C.O.C.No.2036 Of 2016, etc.

¶135

1.3.2018 in W.A.No.2378/2016 (filed by the State) and W.A.No.2335/2016 (filed by the Kozhenchery Panchayath), whereby the Writ Appeals have been withdrawn. The judgment dated 1.3.2018, dismissing W.A.No.2378/2016, reads as follows:

¶136

'This appeal is filed by the State against the judgment of the learned Single Judge in O.P.21189/01. The grievance is mainly confined to direction (ii) in the judgment, which reads as under:

¶137

“ (ii) Respondents 2 to 4 will take serious endeavours and consider whether alternate land as suggested above could be assigned to the petitioner in lieu of Ext.P-2 land. It should also be specifically considered whether it is feasible to assign alternate land as pointed out in Ext.P-26. The entire steps in the matter of consideration and finalisation of assignment of alternate land to the petitioner in lieu of Ext.P-2 should be completed by respondents 2 to 4 within a period of 6 months from the date of production of a certified copy of this judgment. In the eventuality of assignment of such alternate land to the petitioner within the above time limit, then the petitioner need not be given restoration of possession of Ext.P-2 land and then that land could be given to the 1^st respondent Panchayat for its developmental activities.”

¶138

However, it is pointed out by the learned counsel for the writ petitioner that during the pendency of the appeal, the Government have issued order dated, 5.2.2018 implementing the aforesaid directions and that with the order issued, the grievance of the writ petitioner has been redressed.

¶139

In view of the above, nothing survives in this writ appeal to be considered. Writ appeal is accordingly closed.'

¶140

The judgment dated 1.3.2018, dismissing W.A.No.2335/2016, reads as

¶141

follows:

¶142

“Learned counsel for the appellant seeks permission to withdraw

¶143

the writ appeal. I.A.275/2018 has also been filed to this effect. Permission sought for is granted and the writ appeal is dismissed as withdrawn.”

¶144

In the light of these aspects, Sri.D.Kishore, learned counsel

¶145

for the petitioner in this Contempt case would submit on the basis of

¶146

instructions of his party that the Contempt of court Case may be closed

¶147

::18::

¶148

C.O.C.No.2036 Of 2016, etc.

¶149

and this Court may specifically direct the respondent authorities concerned that they shall not in any manner interfere with the right of the petitioner to sell Exts.R-1(e) and (f) land at any time. Sri.K.J.Mohammed Anzar, learned Special Government Pleader appearing for the revenue authorities concerned would submit on the basis of instructions that the said aspects have already been undertaken by them, which has been reflected in the order and Exts.R-1(e) and (f) and the respondents also want to give complete quietus to this case. The said undertaking made by the respondent Revenue authorities concerned that the petitioner is having liberty to sell Exts.R-1(e) and (f) land at any time as per his choice is recorded and the petitioner will not be curtailed on the alienation of the land since the same has been issued only in lieu of Ext.P-2 patta land which was originally assigned in 1967 and its restrictive period against alienation has expired long ago. However, it is ordered that if the Revenue authorities violate the above undertaking giving freedom to the petition for alienation then he will be at liberty to institute Contempt of Court proceedings.

¶150

::19::

¶151

C.O.C.No.2036 Of 2016, etc.

¶152

Before parting with this case, this Court would place on record its deep appreciation for the consensual approach made by Sri.D.Kishore, learned counsel for the petitioner as well as Sri.K.J.Mohammed Anzar, learned Special Government Pleader appearing for the respondent Revenue authorities and Sri.Thomas Abraham, learned Standing Counsel appearing for the respondent - Panchayath. This Court would certainly appreciate the said fair stand shown by the State Revenue authorities and Kozhenchery Grama Panchayath in giving a quietus to the litigative proceedings, which have been pending for a very long time. Moreover, the original land was assigned to the petitioner in recognition of his yeoman services rendered to the Indian Air Force and the petitioner has now crossed the age of 80.

¶153

In the light of these aspects, the above Contempt of Court Case will stand disposed of as closed.

¶154

W.P.(C).No.35298/2016

¶155

The above Writ Petition has been filed by the petitioner

¶156

in the aforementioned C.O.C.No.2036/2016 who was also the petitioner in O.P.No.21189/2001. The prayers in this Writ Petition

¶157

::20::

¶158

C.O.C.No.2036 Of 2016, etc.

¶159

are as follows:

¶160

“a. Call for the records leading to the passing of Exhibit P2 and quash the same to the extent it directs the allotment of the petitioner's property comprised in Survey No.281/6-1, 281/6-2 and 281/6-3 of Kozhencherry village to strangers without resorting to the acquisition proceedings as contemplated under Section 178 of the Kerala Panchayat Raj Act, by issuing a writ of certiorari or any other appropriate, writ, order or direction.

¶161

b. issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents 1 and 2 not to allot any portion of the petitioner's property comprised in Survey No.281/6-1, 281/6-2 and 281/6-3 of Kozhencherry Village to strangers or from encroaching in to the petitioner's property or from implementing Exhibit P2 as regards the property of the petitioner, otherwise than through procedure established by law, as per the mandate of Article 300A of the Constitution of India.”

¶162

8. Heard Sri.D.Kishore, learned counsel for the petitioner,

¶163

Sri.K.J.Mohammed Anzar, learned Special Government Pleader appearing respondents 3 to 5, Sri.Thomas abraham, the learned Standing Counsel for Kozhenchery Grama Panchayath for R-1 & R-2 and Smt.Sreedevi Kylasanath, learned counsel appearing for additional R-6.

¶164

The petitioner herein had earlier filed O.P.No.21189/2001, which was finally disposed of as per judgment dated 31.3.2016 as already mentioned above in detail while disposing C.O.C.No.2306/2016. The present Writ Petition has been filed on 2.11.2016 at a time when the judgment dated 31.3.2016 in

¶165

::21::

¶166

C.O.C.No.2036 Of 2016, etc.

¶167

O.P.No.21189/2001 was not complied with by the respondent-State authorities concerned. The petitioner's grievance is that in spite of the directions issued by this Court in the judgment dated 31.3.2016 in O.P.No.21189/2001, the respondent authorities have not only shown non-compliance of the direction in that judgment but had also taken steps to allot the land to additional R-6, etc. Respondents 1 & 2, Kozhenchery Grama Panchayath have already filed their counter affidavit dated 15.1.2017. The main submission in their counter affidavit is that the land originally assigned to the petitioner has not been assigned to any other person and further that additional R-6 has been temporarily permitted by the Kozhenchery Grama Panchayath to make a boat shed in a property, which is close to the property assigned to the petitioner and that it is only a temporary arrangement and in that process, there is no allotment or encroachment into the land originally assigned to the petitioner. Further, Sri.K.J.Mohammed Anzar, learned Special Government Pleader appearing for official respondents 3 to 5 as well as Thahsildar and Sri.Thomas Abraham, learned Standing Counsel appearing for respondents 1 & 2 would submit on the basis of instructions from their respective parties that in view of the order passed today by this Court in C.O.C.No.2306/2016, the land originally

¶168

::22::

¶169

C.O.C.No.2036 Of 2016, etc.

¶170

assigned to the petitioner will be utilised by the Kozhencherry Panchayath only for the purpose of development of the Panchayath Bus Stand being run by the Panchayath and not for any other purposes. The petitioner's counsel would welcome that undertaking made by the respondent-State Revenue authorities and the respondent - Panchayath. The said undertaking made by the respondent - Panchayath and the State Revenue authorities are recorded. However, Sri.D.Kishore, learned counsel for the petitioner would raise an apprehension that by the past conduct of the elected committee of the Panchayath, there is all possibility that there could be misuse and that the land, which was initially assigned to the petitioner may not be utilised for the betterment and development of Kozhenchery Bus Stand and this Court may issue necessary directions so that such misuse is not done later.

¶171

10 Accordingly, it is ordered that the 4th respondent - District Collector, Pathanamthitta, will depute 5th respondent, Thahsildar, Kozhencherry Taluk to make site inspection of the land in question and it should be ensured that the land, which was originally assigned to the petitioner (which is now sought to be used by the Panchayath for the development of the Panchayath Bus stand) is not in any manner be used

¶172

::23::

¶173

C.O.C.No.2036 Of 2016, etc.

¶174

or occupied by any other person. The 4th and 5th respondents should also ensure that the land is properly identified and demarcated with necessary identification stones and with the assistance of Taluk Surveyor so that there is no encroachment of land on that land by any person so that the said land is utilised for the development of the Bus Stand. If there is any encroachment by additional R-6, then the 4 th respondent-District Collector, 5th respondent - Thahsildar and the Secretary of the Kozhenchery Grama Panchayath should ensue that such encroachment is removed. Kozhenchery Grama Panchayath may ensure that necessary steps are taken for the immediate use of that land for the betterment of Kozhenchery Bus Stand, within 1 year or so. Until this process is over, the Thahsildar should give report once in 3 weeks to the District Collector with a copy to the Kozhenchery Grama Panchayath to ensure that the land is not being misused in any manner and the land remain free from encroachment, until the Panchayath completes the process of development of the property for the benefit of the Kozhenchery Bus Stand. The District Collector, should have a vigilant supervision in this regard. Learned Special Government Pleader and the learned Standing Counsel would undertake that their respective parties would adhere to the said direction in letter and spirit so that

¶175

::24::

¶176

C.O.C.No.2036 Of 2016, etc.

¶177

public interest for the betterment of the Panchayath is adequately taken care of. If there is any violation of these directions, then any person who is a voter in Kozhencherry Grama Panchayath or who pays land tax, Panchayath building tax or profession tax in that Panchayath, will be at liberty to initiate Contempt of Court proceedings.

¶178

With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.

Sd/-

Bkn/-

// True copy //

P.A to Judge.

K.J. Alaxender v. R. Girija

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K.J. Alaxender v. R. Girija

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