Allowed

K. Purushan, v. the District Collector

Kerala HC22 Jan 2019WP(C)/454/2019

Case brief

AI extract

What is this about?

High Court held State must assign alternate property to petitioner as original grant is waterlogged and unproductive. Court directed assignment of 10-15 cents SC/ST reserved land within 4-5 months, subject to petitioner surrendering defective property.

What did the court decide?

Respondents directed to assign alternate land to the extent of 10-15 cents within 4-5 months, subject to petitioner surrendering the grant under Ext.P1 patta.

K. Purushan, Vs the District Collector — Pension and Retirement Benefits | Kerala HC (2019)

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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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TUESDAY, THE 22ND DAY OF JANUARY 2019 / 2ND MAGHA, 1940

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WP(C).No. 454 of 2019

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PETITIONER/S:

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K. PURUSHAN, AGED 52 YEARS S/O. LATE KRISHNAN, PUSHPALAYAM, MANAKKARA, SASTHAMCOTTA, KOLLAM DISTRICT.

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BY ADVS. SRI.M.V.THAMBAN SRI.ARUN BOSE

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RESPONDENT/S:

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1 THE DISTRICT COLLECTOR, KOLLAM - 691001.

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2 THE TAHSILDAR, KUNNATHUR TALUK OFFICE, KUNNATHUR P.O., KOLLAM, KOLLAM DISTRICT - 690540.

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3 THE DISTRICT SURVEY SUPERINTENDENT, OFFICE OF THE SURVEY SUPERINTENDENT, KOLLAM DISTRICT - 690001.

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4 THE VILLAGE OFFICER, SASTHAMCOTTA VILLAGE, SASTHAMCOTTA P.O., KOLLAM DISTRICT - 690521.

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5 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.

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BY ADV. GOVERNMENT PLEADER

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OTHER PRESENT:

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SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 454 of 2019

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ALEXANDER THOMAS, J .

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W.P(C).No.454 Of 2019

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Dated this the 22^nd day of January, 2019.

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J U D G M E N T

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The prayers in the above Writ Petition

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(Civil) are as follows:

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“(i) To issue a declaration that the respondents are bound to provide alternate cultivable property to the petitioner in lieu of the property covered in Exhibit P1 patta since the said property covered in Exhibit P1 patta has been a wet land submerged very deep in water, which is not cultivatable and cannot be identified, measured or demarcated.

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(ii) To issue a writ of mandamus or any other appropriate order, writ or direction, directing the respondents to provide alternate cultivable property to the property preferably the property lying in Re-survey No.13/29, Block No.13 of Sasthamcotta Village, Kunnathoor Taluk, Kollam District. (iii)To issue such other further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of this case.”

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2. Heard Sri.M.V.Thamban, learned counsel

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for the petitioner and learned Senior Government

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Pleader appearing for the respondents.

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3. The petitioner, who belongs to Scheduled

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Caste community, was earlier assigned property

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having an extent of 25 cents comprised in

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Sy.No.32/1 of Sasthamcotta Village, Kollam Taluk,

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WP(C).No. 454 of 2019

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Kollam Revenue District, as per Ext.P-1 patta issued by the 2^nd respondent under the provisions of the Kerala Land Assignment Rules, 1964, framed under the enabling provisions of the Kerala Land Assignment Act, 1960 in the year 1985. According to the petitioner, it later turned out that the land was almost useless and could not be put to

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any productive use and it is a waterlogged area and the petitioner could not even take steps to survey and measure the property. That on various occasions he had tried his best to sell off the property after the permitted time period. But there was no prospective buyers because the land

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could not be put to any productive use whatsoever.

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4. Despite various requests, the competent revenue / survey officials also could not conduct the survey and measurement of the property stating that it is rather impossible to survey and measure the land, which is fully waterlogged,

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etc. The petitioner was thus constrained to

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approach various Governmental functionaries by filing representations after representations for ensuring the conduct of survey and measurement of the property as evident from representations like Exts.P-3, P-4, P-5, etc. Since repeated requests made by the petitioner had fallen on deaf ears, he was constrained to approach this Court by filing a Writ Petition (Civil) as W.P.(C).No. 19759/2013, which this Court had disposed of as per Ext.P-6 judgment rendered on 5.9.2013 with the direction that the competent respondents, Survey and Revenue officials concerned, should complete the proceedings for causing the measurement and demarcation of the property covered by Ext.P-1 with due prior notice to the petitioner and other interested parties, if any, which should be completed within two months therefrom. No serious efforts whatsoever were taken by the respondents to comply with the judgment in Ext.P-6. Much later, the 2^nd respondent-Tahsildar had informed the petitioner as per Ext.P-7 letter

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dated 17.12.2013 that the competent surveyors have informed that even the efforts to grant sub division survey number to the property was rather difficult and impossible. Thereafter, the petitioner had again approached this Court by filing a Writ Petition as W.P(C).No.14258/2014, which this Court had disposed of by Ext.P-8 judgment dated 5.6.2014. It was pointed out by the respondents before this Court therein that the properties are almost fully waterlogged and it is rather impossible to conduct survey and measurement process. This Court then referred to Rule 7(2) of the Kerala Survey and Boundaries Rules, 1964, framed under the enabling provisions contained in the Kerala Survey and Boundaries Act, which stipulates that, if the property is lying in water logged area, still measurements are to be conducted, after putting up coconut stems underneath water. Therefore, this Court ordered in para 2 of Ext.P-8 judgment dated

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5.6.2014 that it is for the petitioner to

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identify the property involved and to make all arrangements and incur all the expenditure involved in carrying out the survey by providing facilities under Rule 7(2) of the Rules. Accordingly, this Court had disposed of W.P(C).No.14258/2014 as per Ext.P-8 judgment by directing that on the petitioner identifying the property and on making all necessary arrangement at his expense for conducting measurement, then the 2^nd respondent shall make necessary

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arrangements to survey the property of the petitioner and appropriate proceedings shall be completed within a period of three months therefrom. Later, the 1^st respondent-District

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Collector had informed as per Ext.P-9 letter dated 4.12.2014 that the survey and measurement process could not be undertaken on the basis of Ext.P-8 judgment in view of the various problems attached with the property. Hence no survey and measurement process had been taken by the competent authority among the respondents to

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comply with the direction issued by Ext.P-8 judgment. Thus the petitioner was constrained to again approach this Court by filing W.P.(C).No. 30946/2015. This Court as per Ext.P-10 order dated 3.11.2015 in W.P(C).No.30946/2015 had recorded the stand of the respondents that the property of the petitioner could not be measured and demarcated as it is a waterlogged area. Accordingly, this Court directed the R-2 therein (Tahsildar)/R-2 herein to take resort to any effective alternate way to ensure survey and measurement process of the petitioner's property and to file a report before this Court within one

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month. The petitioner, then immediately approached the Tahsildar by filing Ext.P-11 representation before the 2^nd respondent-Tahsildar informing about the specific direction issued in Ext.P-10 order in W.P.(C).No.30946/2015 so as to effectuate its compliance. It appears that even thereafter the competent authority among the respondents concerned have taken the stand that

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it is virtually impossible to conduct survey and measurement process due to very same reasons. This Court had finally disposed of W.P.(C).No. 30946/2015 as per Ext.P-12 judgment dated 8.12.2015 directing the petitioner to make all necessary arrangements for the smooth conduct of survey and measurement and then to report before

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the Tahsildar and that if the petitioner so intimates the 2^nd respondent, then necessary steps shall be taken by the Tahsildar to measure and demarcate the property of the petitioner. Further by way of abundant caution, it was ordered in the penultimate paragraph of Ext.P-12 judgment that if on account of any reason not attributable to the petitioner, the Tahsildar is not carrying out the survey and measurement, then the respondents should necessarily consider as to whether the petitioner could be assigned any other alternate land in lieu of the land covered by Ext.P-1 patta. The petitioner had duly

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intimated about the direction issued by this

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WP(C).No. 454 of 2019

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Court in Ext.P-12 by submitting Ext.P-13 representation dated 21.12.2015 before the 2^nd respondent-Tahsildar. It appears that the respondents-revenue officials again has taken the stand that the property of the petitioner could not be measured and demarcated due to the water logging of the property, etc. It is in the light of these factual averments that the petitioner has filed the instant Writ Petition seeking the aforementioned prayers.

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5. Since the petitioner has been

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constrained to approach at least more than 4 occasions and in view of the earlier directions issued by this Court to consider assignment of

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the land in lieu of the land covered in Ext.P-1 as ordered in Exts.P-10 order and P-12 judgment, this Court had passed a specific order on

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8.1.2019, which reads as follows:

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“The learned Government Pleader will get specific instructions from the 2^nd respondent Tahsildar or from the competent Tahsildar in charge of land assignment in the taluk concerned, as to the availability alternative assignable lands in the proximity of the present property of the

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WP(C).No. 454 of 2019

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petitioner so that at least alternative land having more or less of equal extent as the one covered by Ext.P-1 patta could be allotted to the petitioner in the place of the property covered by Ext.P-1. Written instructions should be submitted by the respondent Tahsildar concerned and statement may also be filed within a week's time.”

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6. Now, the 2^nd respondent-Tahsildar has

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filed a statement dated 16.1.2019 on behalf of the respondents in response to the directions issued by this Court stating that the petitioner should also be blamed for not taking care of the property which resulted in the water logging in

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the property, etc. As regards the direction issued by this Court for alternate assignment of land in lieu of the land covered by Ext.P-1 patta, it is stated as follows in para 3 of the statement as follows:

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“3. It is submitted that there was no restrictions in the extent of land to be assigned during that period in which the petitioner had been assigned the land in question. But due to the acute scarcity of assignable land, now many restrictions are imposed in the extent of land to be assigned. The zero Landless Programme aiming distribution of 1.21 Ares of land to each landless family stands half way without attaining its aim due to the only reason of the unavailability of sufficient assignable land. Now approximate of 1440 applications are pending in this office under this programme itself for want of land. Besides it, many Government lands are lying idle connected with Civil cases over the title of ownership issues. The claimed property is very adjacent to the Sasthamcotta fresh water lake and which is exempted from being assigned due to the

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WP(C).No. 454 of 2019

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environmental problems. Considering the above circumstances, it is humbly submitted that no land equal to the extent of 10.12 Ares in Exhibit P1 patta is available in Kunnathur Taluk for assignment purpose at present.”

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It is stated therein by the 2^nd respondent that approximately 1440 applications are pending in the office of the 2^nd respondent under the Zero Landless Programme for distribution of 1.21 Ares of land to each landless family and many Government lands are lying idle connected with Civil cases over the title of ownership issues. The claimed property is very adjacent to the Sasthamcotta fresh water lake and which is exempted from being assigned due to the environmental problems and that no land equal to the extent of 10.12 Ares in Exhibit P1 patta is available in Kunnathur Taluk for assignment purpose at present.

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7. Having regard to the facts and circumstances disclosed in this petition, this Court is of the considered view that directions already issued by this Court as per Ext.P-10

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WP(C).No. 454 of 2019

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order and Ext.P-12 judgment should be effectuated. It is now clear like the day light that it is rather impossible to even survey and

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measure the property in view of the various problems associated with the said land. The petitioner has stated that he had done his level best to take care of the property and in view of

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the peculiar nature of the land, no productive activity could be carried out in the said property. In the light of these aspects, this Court is of the view that the petitioner cannot be blamed for the present state of affairs. The respondents should have been more careful at the

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time of the initial assignment of land in the year 1985. Ordinarily, the consistent practice is that even prior to the issuance of formal patta, survey and measurement of the property is carried out by the revenue and survey officials and even a survey sketch is attached to the patta. If such measures had been adhered to, then the respondents would then have been

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WP(C).No. 454 of 2019

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convinced that the land is unsuitable for any kind of productive utility. Any person, who is offered by assignment, at that point of time, would not be raising any objections regarding the nature of the land and due to dire necessity, he would have accepted the assignment process. Therefore, the respondents should have made necessary enquiries to ascertain whether the land is productive and fit for assignment. From the facts and circumstances disclosed in this case, it cannot be said that the petitioner should be blamed for the present situation. The consistent requests made by the petitioner before the respondent authorities even to conduct survey and measurement of the property could not be even carried out by them which really shows that the land is highly unfit for any purpose due to the abovesaid aspects. The petitioner belongs to Scheduled Caste community and he is now aged 52 years.

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8. Accordingly, this Court is of the

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considered view that the respondents are obliged in the facts and circumstances of this case to assign and allot alternate land to the petitioner in lieu of the grant of land assignment made to him as per Ext.P-1 patta. However, the same extent of property which comes to about to 25

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cents/10.12 ares need not be assigned as alternate land to the petitioner. The 1^st respondent-District Collector and the 2^nd respondent-Tahsildar will take necessary steps and ensure that atleast 10-15 cents is to be assigned and allotted to the petitioner in lieu of the grant of patta as per Ext.P-1. As far as possible, that land may be within the territorial limits of Kunnathur Taluk. However, it is ordered and declared that the petitioner is entitled for assignment of such alternate land and the discretion is given to respondents 1 & 2 to decide about the actual extent of land which

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may be in the range of 10-15 cents depending upon

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WP(C).No. 454 of 2019

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the availability of land and as far as possible within Kunnathur Taluk. The petitioner will immediately file a representation along with an application for assignment of such land before the 2^nd respondent with copy to the 1^st respondent. The 2^nd respondent will conduct an enquiry to ascertain whether any lands are specifically meant and set apart for persons belonging to SC/ST persons, etc, are available for assignment. The 1^st respondent should also invite the petitioner for a personal hearing and a copy of the report of the 2^nd respondent-Tahsildar on the enquiry as directed hereinabove, should be given to the petitioner in advance. The petitioner's contention should also be duly considered. Thereafter, respondents 1 & 2 will ensure that assignment of alternate land to the extent of 1015 cents is made in favour of the petitioner. This will be subject to the condition that the petitioner will have to surrender the land covered by Ext.P-1 patta. The entire process in

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this regard should be duly completed by respondents 1 & 2 without much delay, preferably within a period of 4-5 months from the date of receipt of a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS, Judge.

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bkn/-

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE EXTRACT OF THE PATTA ISSUED BY 2ND RESPONDENT.
EXHIBIT P2	TRUE COPY OF THE LETTER SENT BY THE 3RD RESPONDENT TO THE PETITIONER DATED 02/05/2009.
EXHIBIT P3	TRUE COPY OF THE REPRESENTATION DATED 21/09/2010.
EXHIBIT P4	TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 19/11/2011.
EXHIBIT P5	TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 24/09/2012.
EXHIBIT P6	TRUE COPY OF THE JUDGMENT DATED 05/10/2013 IN WPC NO.19759/2013.
EXHIBIT P7	TRUE COPY OF THE LETTER DATED 17/12/2013.
EXHIBIT P8	TRUE COPY OF THE JUDGMENT DATED 05/06/2014 IN WPC NO.14258/2014 OF THIS HON'BLE COURT.
EXHIBIT P9	TRUE COPY OF THE LETTER DATED 04/12/2014 ISSUED BY THE DISTRICT COLLECTOR, KOLLAM.
EXHIBIT P10	TRUE COPY OF THE ORDER DATED 03/11/2015 IN WPC NO. 30946/2015 OF THIS HON'BLE COURT.
EXHIBIT P11	TRUE COPY OF THE COVERING LETTER DATED 09/11/2015 OF THE PETITIONER.
EXHIBIT P12	TRUE COPY OF THE JUDGMENT DATED 08/12/2015 IN WPC NO.30946/2015 OF THIS HON'BLE COURT.
EXHIBIT P13	TRUE COPY OF THE REPRESENTATION DATED 21/12/2015 OF THE PETITIONER FILED BEFORE THE 2ND RESPONDENT.

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WP(C).No. 454 of 2019

K. Purushan, v. the District Collector

Case brief

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K. Purushan, v. the District Collector

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