Allowed

Pathummabi v. the State of Kerala

Kerala HC6 Jan 2022WP(C)/17220/2009

Case brief

AI extract

What is this about?

The Kerala High Court allowed a writ petition seeking quashing of an order rejecting possession certificates for families allottees of land under the Kerala Panchayats Rules, 1972. The court directed the Village Officer to accept property tax and issue certificates. It held that long-term peaceful possession and statutory assignment protect articles 300A rights against subsequent vesting notificat

What did the court decide?

Writ petition allowed; Ext.P9(a) quashed; 5th respondent directed to accept Property Tax and issue Possession Certificates; respondents instructed not to interfere with possession.

Pathummabi Vs the State of Kerala — Land Acquisition | Kerala HC (2022)

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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 N.NAGARESH

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THURSDAY, THE 6^TH DAY OF JANUARY 2022 / 16TH POUSHA, 1943 WP(C) NO. 17220 OF 2009

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PETITIONERS:

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1 PATHUMMABI, W/O.SULAIMAN 11/29, POONKULAM, PIRAYARI P.O., PALAKKAD.

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2 T.H.AOOBACKER S/O. HASANAR 11/31, POONKULAM, PIRAYARI P.O., PALAKKAD.

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3 AISUMMA W/O. LATE SAITHALI 11/30, POONKULAM, PIRAYARI P.O., PALAKKAD.

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4 HAMSA N.M. S/O. LATE SAITHALI 11/34, POONKULAM, PIRAYARI P.O., PALAKKAD.

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5 ASHRAF, S/O. LATE HAMSA 11/34, POONKULAM, PIRAYARI P.O., PALAKKAD.

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6 SHAJAHAN, S/O. LATE HAMSA 11/34, POONKULAM, PIRAYARI P.O., PALAKKAD.

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7 T.M.SAFIYA, W/O. MOHAMMED 11/33, POONKULAM, PIRAYARI P.O., PALAKKAD.

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8 P.P.MOIDHEEN SO. LATE BAPUTTY 11/32, POONKULAM, PIRAYARI P.O., PALAKKAD.

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9 M.MUHAMMED UDUMAN SO. LATE MOITHU 11/35, POONKULAM, PIRAYARI P.O., PALAKKAD.

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10 P.K.JAMEELA WO. ABDUL RAHIMAN 11/36, POONKULAM, PIRAYARI P.O., PALAKKAD.

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11 K.KUNJUMOIDHEEN, S/O. LATE ATHEEN KUTTI 11/37, POONKULAM, PIRAYARI P.O., PALAKKAD.

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12 PATHUMMA, W/O. LATE YAHU 11/41, POONKULAM, PIRAYARI P.O., PALAKKAD.

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13 K.A.HUSSAN, S/O. LATE AHAMMED 11/40, POONKULAM, PIRAYARI P.O., PALAKKAD.

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14 SUHARA, W/O. LATE T.H.MUHAMMED 11/39, POONKULAM, PIRAYARI P.O., PALAKKAD.

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15 KAJAHUSSAIN, S/O. LATE AAYUTTI 11/42, POONKULAM, PIRAYARI P.O., PALAKKAD.

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16 NABEESA, W/O. LATE T.A.SULAIMANAITHALI 11/ , POONKULAM, PIRAYARI P.O., PALAKKAD.

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17 C.M.ABDUL NAZAR, S/O. LATE MAMMOO 11/44, POONKULAM, PIRAYARI P.O., PALAKKAD.

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W.P.(C) No.17220/2009

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18	PATHUMMA, W/O. LATE MUHAMMED 11/ , POONKULAM, PIRAYARI P.O., PALAKKAD.
19	AISUMMA, W/O. LATE P.K.HASSAN
	11/ , POONKULAM, PIRAYARI P.O., PALAKKAD.
20	T.H.HAMSA, S/O. LATE HUSSAN
	11/45, POONKULAM, PIRAYARI P.O., PALAKKAD.
21	HASSAN, S/O. LATE MOHAMMED
	11/48, POONKULAM, PIRAYARI P.O., PALAKKAD.
22	C.HASANAR, S/O. LATE CHERUTTI
	11/ , POONKULAM, PIRAYARI P.O., PALAKKAD.
23	T.M.MANAF, S/O. LATE NABEESA
	11/50, POONKULAM, PIRAYARI P.O., PALAKKAD.
24	RASHEED, S/O. SAINUDHEEN
	11/53, POONKULAM, PIRAYARI P.O., PALAKKAD.
25	PATHUMMA, W/O. LATE P.V.BAVA
	11/53, POONKULAM, PIRAYARI P.O., PALAKKAD.
26	ALI, S/O. LATE P.V.BAVA
	11/53, POONKULAM, PIRAYARI P.O., PALAKKAD.
27	SAID BAVA, S/O. LATE P.V.BAVA
	11/53, POONKULAM, PIRAYARI P.O., PALAKKAD.
28	SHEHABAS, S/O. LATE P.V.BAVA.
	11/53, POONKULAM, PIRAYARI P.O., PALAKKAD.
29	SHABEER, S/O. LATE P.V.BAVA
	11/53, POONKULAM, PIRAYARI P.O., PALAKKAD.
30	ASIF, S/O. LATE P.V.BAVA
	11/53, POONKULAM, PIRAYARI P.O., PALAKKAD.
31	R.MUHAMMEDALI, S/O. LATE HASSAN
	11/51, POONKULAM, PIRAYARI P.O., PALAKKAD.
32	HAJIRA, W/O. SAINDUDHEEN
	11/54, POONKULAM, PIRAYARI P.O., PALAKKAD.
	BY ADVS. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERMENT SECRETARIAT, THIRUVANANTHAPURAM.

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W.P.(C) No.17220/2009

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2 THE SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,,

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THIRUVANANTHAPURAM.

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3 DISTRICT COLLECTOR, PALAKKAD.

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4 DIVISIONAL FOREST OFFICER, PALAKKAD.

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5 VILLAGE OFFICER, PIRAYARI PALAKKAD.

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6 PIRAYARI GRAMA PANCHAYAT KODUNTHARAPULLI, PIRAYARI, PALAKKAD, REPRESENTED BY ITS SECRETARY.

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BY ADVS.

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SRI.U.BALAGANGADHARAN

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SRI.T.P.SAJAN SPL.GP (FOREST)

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.17220/2009

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N. NAGARESH, J.

Dated this the 6^th day of January, 2022

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The petitioners, 32 in numbers, are before this Court seeking to quash Ext.P9(a) and to direct the 5^th respondent to accept Property Tax and to issue Possession Certificate in respect of the properties owned and possessed by the petitioners in Survey Nos.30/9, 10, 11 of Pirayiri Village in Palakkad Taluk.

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The Kerala Panchayats (Providing of House Sites and Houses to the Families of Landless Workers in the Rural Areas) Rules, 1972, contemplated assignment of House Sites to landless workers in Rural areas. The 6^th respondentPanchayat acquired 1 Acre of land in Survey Nos.30/9, 10, 11 in Pirayiri Village in Palakkad Taluk in the year 1972. The

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land was distributed to 25 families. The petitioners are allottees/legal heirs of the pieces of land. The allottees constructed residential houses after obtaining permits from the Panchayat. The Kerala State Electricity Board drew electric line to the colony, after getting executed a Minimum Guarantee Agreement. Kerala Water Authority gave water supply pipe connections to the houses. The Tahsildar issued Pattas to the allottees. The allottees paid purchase price to the Government. Ration Cards were also issued to the families. The Allottees/Assignees are paying Building Tax and Property Tax regularly.

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Long after the families settled in the colony and were leading peaceful life under the shelter statutorily provided to them, the 5^th respondent-Village Officer stopped accepting Property Tax. He refused to issue Possession Certificates also. The petitioners submitted Ext.P7 representation. The Special Secretary to Revenue Department on 25.05.1999 directed the 3^rd respondentDistrict Collector to examine the matter and submit a report.

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In 2009, the 4^th petitioner submitted Ext.P9

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application dated 02.03.2009 to the 5^th respondent for Possession Certificate. The said application was rejected by the 5^th respondent as per Ext.P9(a), alleging that the land after re-survey is found to be Vested Forest. The refusal to issue Possession Certificate to the petitioners is highly illegal, arbitrary and unsustainable, contended the petitioners.

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The 4^th respondent–Divisional Forest Officer resisted the writ petition filing counter affidavit. The 4^th respondent stated that the Government of Kerala has notified 23.7923 Ha. of land in Survey Nos.17/31, 10, 32, 33, 34, 35, 36, 37, 38, 39, 40, 23B, 42, 44, 45, 46, 47, 20/7, 24/10, 25/14, 3A, 28/1, 2, 6, 3B, 29/1, 2, 3, 4, 9, 10, 7, 8, 30/12, 18, 14, 15, 16, 78/10 as VFC item No.162, vide notification No.D-1383/77 dated 18.03.1978 of the Custodian of the Vested Forests under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (Act 26/71). The area was surveyed and demarcated in the year 1977, prior to the date of vesting

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W.P.(C) No.17220/2009

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as per Ext.R4(a) notification dated 18.03.1978.

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In the year 1977, Pirayiri Grama Panchayat identified 1 Acre of land for distribution @ 4 Cents each to 25 landless labour families. But, this 1 Acre was included in the area surveyed for notification referred above. The property mentioned in the writ petition is identified, demarcated and plotted by the Surveyor from Palakkad Forest Division. The petitioners did not produce any sketch of the land to prove their claim. They have not disclosed the clear boundaries of the properties mentioned in the writ petition. The land mentioned in the above writ petition is not private land. The survey of the disputed property reveals that the area is vested forest. The land comes within Ezhanimala Malavaram. Issuance of Patta to the petitioners is therefore illegal, contended the 4^th respondent.

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I have heard the counsel for the petitioners and the Special Government Pleader representing the respondents.

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W.P.(C) No.17220/2009

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The land was purchased by the Panchayat in the year 1972 in exercise of its powers under the Kerala Panchayats (Providing of House Sites and Houses to the Families of Landless Workers in the Rural Areas) Rules, 1972. The said Rules, 1972 have been framed by the Government in exercise of its powers under Section 129 read with Section 58(1) of the Kerala Panchayats Act, 1960.

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The Rules were previously published as required by Section 130(2) of the Kerala Panchayats Act, 1960. The Rules are to apply for providing house sites and houses to the families of landless workers in the rural areas for whom house sites cannot be given under the provisions of any law relating to land reforms or any other scheme regarding assignment of Government land. Rule 4 provides that 50% of the house sites available is to be earmarked for allotment to landless agricultural workers belonging to Scheduled Castes, Scheduled Tribes and converts from those Castes and Tribes. Therefore, the rules are intended to provide land for shelter, to the marginalised sections of the society, who

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cannot be brought under any other statutory or non-statutory Scheme for assignment of land for construction of houses.

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Under Rule 5, the selection and purchase of the

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land for the laying out of house sites shall be made on behalf of the Government, by the Panchayat concerned. Under Rule 5(c), the Panchayat shall publish the list of sites proposed to be selected by it on the notice board of the Panchayat for two weeks. The requisite fund for purchase of land is to be provided by the Government. It is following all the procedures contemplated by the Rules, 1972 that the petitioners or their predecessors were assigned the lands. Now, the petitioners are not being issued with Possession Certificates and there is a refusal to accept Property Tax also from the petitioners.

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The reason advanced by the respondents for non-issuance of Possession Certificates is that subsequently on 18.03.1978, the Government has issued Ext.R4(a) notification dated 18.03.1978, declaring the land in question as vested in the Government as per the Kerala Private

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Forests (Vesting and Assignment) Act. In effect, what is purported to be done by the Government, is to give land to the landless by one hand and take away the land with the other hand.

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The land was purchased by the Panchayat after publishing a prior notification as contemplated by the Rules, 1972. No one including the Forest Department raised any objection to the purchase. The house plots were allotted to the eligible agricultural workers. The allottees paid purchase price. The assignees have constructed residential units in the land after obtaining permits from the local body. The allottees/legal representatives are paying Building Tax and Property Tax.

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They were issued with Ration Cards in those addresses. Electricity and water supply lines were drawn to the colony. For the last about 50 years, the allottees and their families are residing in the land statutorily assigned to them peacefully without any challenge to their property rights. The petitioners are not encroachers on the land.

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They are in possession of the land by operation and implementation of a statutory Scheme, framed under the Kerala Panchayats Act, 1960. In such circumstances, non-acceptance of Property Tax and denial of Possession Certificates to them would infringe their constitutional right under Article 300A of the Constitution of India.

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In the facts and circumstances of the case, the petitioners are entitled to get reliefs in the writ petition. The writ petition is therefore allowed. Ext.P9(a) is quashed. The 5^th respondent is directed to accept Property Tax from the petitioners and issue Possession Certificates to the petitioners as and when applied for. There will be a further direction to the respondents not to interfere with the possession and enjoyment of the petitioners’ properties in Re-Survey Nos.30/9, 10, 11 in Pirayiri Village in Palakkad Taluk.

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N. NAGARESH, JUDGE

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aks/04.01.2022

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Sd/-

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W.P.(C) No.17220/2009

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APPENDIX OF WP(C) 17220/2009

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE PHOTOCOPY OF THE CONSENT LETTER DATED 30.11.1977, ISSUED TO THE 8TH PETITIONER. EXHIBIT P2 TRUE PHOTOCOPY OF THE MINIMUM GUARANTEE AGREEMENT EXECUTED BETWEEN THE 8TH PETITIONER AND THE OTHER ALLOTTEES WITH KSEB, ON 31.03.1990 EXHIBIT P3 TRUE COPY OF THE PATTA ISSUED TO THE 8TH PETITIONER. EXHIBIT P4 TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY THE 5TH RESPONDENT TO THE 8TH PETITIONER. EXHIBIT P5 TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY THE 5TH RESPONDENT TO THE 8TH PETITIONER EVIDENCING THE REMITTANCE OF PROPERTY TAX. EXHIBIT P6 TRUE PHOTOCOPY OF THE BUILDING TAX RECEIPT ISSUED TO THE 8TH PETITIONER. EXHIBIT P7 TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT. EXHIBIT P8 TRUE PHOTOCOPY OF THE LETTER BEARING NO.34385/P2/99/REV DATED 25.05.1999 EXHIBIT P9 TRUE PHOTOCOPY OF THE APPLICATION DATED 01.03.2009 EXHIBIT P9(A) TRUE PHOTOCOPY OF THE ORDER REJECTING EXT.P9.

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RESPONDENT EXHIBITS

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EXHIBIT R6 (a) A TRUE COPY OF THE RELEVANT PAGES OF THE ADANGAL EXTRACT ISSUED BY THE VILLAGE OFFICER PIRAYIRI. EXHIBIT R6 (b) A TRUE COPY OF THE COMMUNICATION DATED 19.08.1988 ISSUED BY THE DISTRICT PANCHAYATH OFFICER

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EXHIBIT R6	(c)	A TRUE COPY	OF COMMUNICATION	DATED
		22.08.1988	ISSUED BY THE	THEN
		EXECUTIVE	OFFICER, PI	RAYIRI
		PANCHAYATH.
EXHIBIT R6	(d)	A TRUE COPY	OF THE RELEVANT PAG	ES OF
		THE NOTIFICAT	ION NO.B1-4165/2011	DATED
		14.06.2011 IS	SUED BY THIS RESPOND	ENT.
R4(a)		COPY OF NOTI	FICATION DT 18.3.19	78 OF
		THE CUSTODIAN	OF THE VESTED FORES	TS.

Pathummabi v. the State of Kerala

Case brief

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Pathummabi v. the State of Kerala

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