Shanmughan M.P. Vs State of Kerala

2 THE LAND REVENUE COMMISSIONER, OFFICE OF THE LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, MUSEUM, PLAYAM P.O. THIRUVANANTHAPURAM, DISTRICT 695 033.

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3 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, FORT KOCHI , KOCHI P.O. ERNAKULAM DISTRICT, 682 001.

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4 THE TAHSILDAR, ALUVA TALUK OFFICE, FIRST FLOOR, MINIS CIVIL STATION, CIVIL STATION ROAD, PERIYAR NAG, ALUVA, ERNAKULAM 683 101.

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GP – ADV.NIMA JACOB

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BY ADVS. GOVERNMENT PLEADER V.RAJENDRAN (SR.) SOHAIL MOHAMMED ANSARY AMEENA.R JOHN K.K.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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“CR”

VIJU ABRAHAM, J.

- - - - Dated this the 6^th day of March, 2025

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JUDGMENT

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The petitioner has approached this Court challenging Exts.P3, P4, P5 and P7 orders and seeking for a consequential direction to the 4^th respondent to issue patta to the petitioner in respect of 4½ cents of property in Sy.No.138/1/7 of Mattoor Village, Aluva Taluk.

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The brief facts necessary for the disposal of the writ petition are as follows:

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The petitioner is in possession of 22½ cents of property in Sy.No.138/1/7 of Mattoor Village, Aluva Taluk, which was in the possession of the petitioner and his predecessor in interest from 1950 onwards. Out of the 22½ cents of property, the petitioner's

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father obtained patta for 18 cents of property and the remaining 4½ cents of property is in the possession of the father of the

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petitioner from 1950 onwards. Several trees were planted in the remaining 4½ cents of the property and after the death of the petitioner's father in 2001, he is in possession of the above said property. By Ext.P1, Patta was issued by the 4^th respondent with respect to 18 cents of properties in Sy.No.138/1/7 of Manickamangalam Village on 18.11.1961. Later the property covered by Ext.P1 patta was gifted to the petitioner by his father as per Ext.P2 Gift deed executed on 19.04.1988. The petitioner is also in possession of the 4½ cents of property which is lying contagious to the property covered by Ext.P1 Patta. Though a suit was filed for declaration of title with respect to the above-said 4½ cents of property claiming adverse possession, the same was dismissed. It is contended that the petitioner requires the abovesaid 4 ½ cents of property for the beneficial enjoyment of the property. Thereupon the petitioner made an application under the Kerala Land Assignment Act 1960, to assign 4½ cents of property belonging to the Government to the petitioner. The said application was dismissed as per Ext.P3 order dated 03.04.2018, holding that the petitioner is not entitled for the land as the 4½

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cents appurtenant is not necessary for the protection or beneficial enjoyment of registered holding. Aggrieved by Ext.P3 order the petitioner has preferred an appeal before the 3^rd respondent which was rejected as per Ext.P4. Further, a revision was preferred before the 2^nd respondent which also ended up in dismissal as per Ext.P5 order. Though the petitioner preferred further revision before the 1^st respondent, finding that the said revision is not maintainable, the writ petition filed as W.P.(C)No.75/2020 seeking early disposal of the said revision petition was withdrawn as per Ext.P6. While so, Ext.P7 notice was issued as per the provisions of the Land Conservancy Act, 1957 to evict the petitioner from the above-mentioned property. It is in the above-mentioned circumstance that the petitioner has approached this Court.

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The main contention raised by the petitioner is that the 4½ cents of land lying contiguous to the property covered by Exts. P1 and P2 belonging to the petitioner is absolutely necessary for the beneficial enjoyment of the property. It is further contended that going by Section 6(2) of the Kerala Land Assignment Rules, 1964 the authority competent to assign land for

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beneficial enjoyment is the Revenue Divisional Officer. But Ext.P3 order was issued by the 4^th respondent Tahsildar, who is an incompetent authority to issue the same and therefore, Ext.P3 is liable to be interfered with. It is further submitted that the appellate as well as the revisional order confirming Ext.P3 order issued by the Tahsildar - an incompetent authority, is illegal and arbitrary and therefore, liable to be interfered by this Court.

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A detailed statement has been filed by the 4^th respondent wherein it is contended that an extent of 3.85 ares of land in Re.Sy.No.70/16, Block No.26 in Mattoor Village in Aluva Taluk has been recorded as “Sarkar Puramboke Vazhi” in the Basic Tax Register and marked with road symbols in Field Measurement Book. The additional 5^th respondent and others submitted a complaint before the District Collector, Ernakulam to evict the encroachment by the petitioner in 1.26 ares of land in Re.Sy.No.70/16, Block No.26 in Mattoor Village in Aluva Taluk which is recorded as “Sarkar Puramboke Vazhi” in Basic Tax Register. After completing the legal procedures as provided in the Kerala Land Conservancy Act, 1957 and based on the report from

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Village Officer, steps were taken to evict the encroachment in “Sarkar Puramboke”. Though the petitioner filed a suit as O.S.No.74/2005 before the Munsiff Court Aluva with a prayer to prevent the additional 5^th respondent and others from entering the said land, the same was dismissed on 11.08.2008 rejecting the claims of the petitioner. Later another suit, O.S.No.486/2010 was filed by the petitioner before the Sub Court, North Paravur claiming that the land in question was in possession and enjoyment of his ancestors. The said suit was also dismissed. Aggrieved by the same, the petitioner preferred an appeal as A.S.No. 37/2015 before the District Court, North Paravur. The said appeal was also dismissed on 28.06.2018. It is also stated that the petitioner himself has filed WP(C)No.533/2018 before this Court seeking early consideration of the application for assignment of land submitted before the 4^th respondent, this Court disposed of the same on 24.01.2018 with a direction to the 4^th respondent Tahsildar, Aluva to consider application, in accordance with law, after issuing notice of hearing to the petitioner and other interested persons and to pass final orders within 2 months. It is

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on the basis of the said direction issued by this Court in a writ petition filed by the petitioner himself that Ext.P3 order was issued. Though an appeal was preferred before the Revenue Divisional Officer, Fort Kochi, which is the authority to consider the assignment of land for beneficial enjoyment, has also rejected the appeal finding that the said land is not required for the beneficial enjoyment of the petitioner and that the said land is used as pathway by the neighbouring owners. Relying on Rule 11(2) (1) of Kerala Land Assignment Rules, 1964, it is contended by the 4^th respondent that the land that comes under the definition of Puramboke as per the provisions of the Kerala Land Conservancy Act, 1957 should be kept for Government/Public purpose only and therefore, sought for dismissal of the writ petition.

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The additional 5^th respondent who got impleaded in this writ petition would contend that the land which is sought to be assigned for the beneficial enjoyment of the petitioner is a public way leading to the adjacent properties including the property of the additional 5^th respondent and the writ petitioner has no legal

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right over the said property and therefore, sought for dismissal of the writ petition.

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I have considered the rival contentions on both sides.

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Rule 6 of the Kerala Land Assignment Rules, 1964 deals with Assignment for house site and for beneficial enjoyment. Note to Rule 6(2) mandates that the authority competent to assign land for beneficial enjoyment shall be the Revenue Divisional Officer. Though Rule 6(2) mandates that it is the 3^rd respondent, who is the proper authority to assign land for beneficial enjoyment, the application submitted by the petitioner was considered by the 4^th respondent Tahsildar based on a direction issued by this Court in a writ petition filed by the petitioner himself. A perusal of Ext.P3 would reveal that the petitioner has encroached upon the land and proceedings have been initiated as per the provisions of the Land Conservancy Act 1957 to evict the encroachment. After considering the records and the contentions of all parties, the 4^th respondent has entered a finding that the property which is sought to be assigned for beneficial enjoyment is a Government road puramboke land and the same cannot be assigned. It was

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also found by the 4^th respondent that as per the Rules, assignment could be granted only by the Revenue Divisional Officer, after entering a finding that the land is absolutely necessary for the beneficial enjoyment of the applicant. In the appeal the 3^rd respondent RDO considered the said issue again and reiterated the stand in Ext.P3 that the subject property is a Government road puramboke and as per law, road puramboke cannot be assigned. The 3^rd respondent also found that since the petitioner is in possession of 7.85 Ares of property, further land cannot be assigned in the name of the petitioner. It is also found that the subject property is used by the neighbouring property owners including the additional 5^th respondent as road and therefore, the said property cannot be assigned to the petitioner. It is further held by the Revenue Divisional Officer that he is not satisfied that the land is absolutely necessary for the petitioner for his beneficial enjoyment. A similar stand was taken by the Land Revenue Commissioner in the Revision Petition, which culminated in Ext.P5 order. It is also to be noted that in respect of the subject property, two suits were filed by the petitioner, which were also dismissed

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by the Court and the appeal filed as A.S.No.37/2015 was also dismissed. Going by Rule 6 of the Kerala Land Assignment Rules, 1964 the land could be assigned to an applicant for beneficial enjoyment only on a finding to the effect that the land is indispensably required for the beneficial enjoyment of the adjoining registered holding. Rule 11 of the Kerala Land Assignment Rules, 1964 mandates that a list of assignable land is to be prepared by the Government and Rule 11(2)(i) mandates that a “puramboke” as defined in the Kerala Land Conservancy Act 1957 could be included in the said list only if it is not detrimental to Government or the public interest. A perusal of the statement filed by the 4^th respondent and the orders impugned herein reveal that the property being Government road puramboke, which is used by the neighbouring property owners including the additional 5^th respondent and on finding that the same is not indispensably required for the beneficial enjoyment of the adjoining registered holding of the petitioner, the application has been rejected. Taking into consideration the above facts and circumstances, I find that the reasons stated by the authorities for

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rejecting the claim of the petitioner for assignment of land for beneficial enjoyment is in accordance with law.

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Next aspect to be considered is the contention raised by the petitioner that going by Section 6(2) of the Kerala Land Assignment Rules, 1964 the authority competent to assign land for beneficial enjoyment is the Revenue Divisional Officer and since Ext.P3 order has been issued by the 4^th respondent Tahsildar, who is incompetent to issue the same, Ext.P3 is liable to be interfered with and Exts.P4 and P5 orders in appeal and revision confirming Ext.P3 order issued by the Tahsildar are also illegal and arbitrary. A pertinent aspect to be noted is that the 4^th respondent Tahsildar has considered the application based on a direction issued by this Court in a writ petition filed by the petitioner himself seeking an expeditious disposal of the application by the 4^th respondent. While rejecting the application by Ext.P3 order, the 4^th respondent Tahsildar has also entered a finding that it is the 3^rd respondent RDO who is competent to take a decision on the application submitted by the petitioner and as the petitioner has not substantiated that the property is indispensably required for the

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beneficial enjoyment of the adjoining registered holding, the same cannot be recommended to the Revenue Divisional Officer. The RDO considered the appeal and rejected the request of the petitioner by Ext.P4 order assigning valid reasons in accordance with the Act and the Rules and the same was confirmed by the Revisional Authority as per Ext.P5 order. It is true that going by Rule 6 of the Kerala Land Assignment Rules 1964, the competent authority to assign land for beneficial enjoyment is the Revenue Divisional Officer, but the application has been considered and rejected by the Tahsildar. The question to be considered is whether the orders are liable to be interfered with only for lack of jurisdiction on the part of the 4^th respondent to consider the application submitted by the petitioner. This Court in Madhavikutty v. State of Kerala [2008(1) KLT 692] has considered a similar issue wherein the petitioner therein was dismissed from service and challenging the order of dismissal, a petition was filed before the Registrar and the Registrar directed reinstatement of the petitioner therein against which an appeal was preferred before the Government and the same was allowed

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by the Government. It is challenging the said order that the said writ petition was filed wherein it is contended that only the Cooperative Arbitration Court has jurisdiction to deal with the matter and therefore, orders of Registrar and Government are without any jurisdiction and sought for remittance of the case for reconsideration by the Co-operative Arbitration Court. The relevant portion of the judgment reads as follows:

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“3. The petitioner has chosen, not to point out the lack of jurisdiction of the Registrar or the Government before those authorities, when the matter was heard. The petitioner who took the chance before both the forums, cannot be permitted to turn round and cry about the lack of jurisdiction when the decision goes against her. This is a well settled principle in writ jurisdiction. See the decision of the Division Bench in Trivandrum Co-operative District Wholesale Society v. Deputy Registrar of Co-operative Societies, Trivandrum (1975 KLT 589).

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4. Further, the Registrar considered the matter pursuant to the direction of the Division Bench of this Court, which is a superior court of unlimited jurisdiction. Its order cannot be treated as a void order and it cannot be ignored. If it is irregular, it has to be corrected by filing a review. Otherwise, the order can be corrected only in appeal.”

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In Madhavikutty 's case cited supra, the Court did not interfere

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with the orders impugned therein holding that the petitioner had not pointed out the lack of jurisdiction of the Registrar or the Government before those authorities when the matter was heard and the petitioner who took the chance before both the forums, cannot be permitted to turn round and complain about the lack of jurisdiction when the decision goes against her. The Court has also entered a finding that the Registrar considered the matter pursuant to the direction of the Division Bench of this Court, which is a superior Court of unlimited jurisdiction and its order cannot be treated as a void order and it cannot be ignored and if the said order is irregular, it has to be corrected by filing a review or by an appeal. Similar is the case of the petitioner herein also. The petitioner has also not pointed out any lack of jurisdiction of the Tahsildar or the other authorities when the matter was taken up for hearing and the petitioner lost before all the authorities and that the petitioner is complaining about lack of jurisdiction of the 4^th respondent to consider the application only in the present writ petition. Further, it is to be seen that Tahsildar has considered the application based on a direction issued by this Court in a writ

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petition filed by the petitioner himself. In Ext.P3 order, the Tahsildar has entered a finding that as per the Kerala Land Assignment Rules 1964, the authority to consider the application is the RDO and as the petitioner did not satisfy the conditions for assignment of land, the same is not recommended to the RDO. In spite of all these, the petitioner did not choose to file an application before the proper authority nor sought for review of the judgment of this court or challenge the same in appeal. In Madhavikutty' s case cited supra, the Court also relied on the Apex Court judgment in Mohammad Swalleh and Others v. Third Addl. District Judge, Meerut and Another [(1988) 1 SCC 40] which held that even assuming that an order is passed by an authority having no jurisdiction, still the Court need not interfere with the same if justice has been done and held that even if the Government has acted without jurisdiction, it is unnecessary for the Court to interfere with the same.

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In view of the above facts and circumstances and taking into consideration the decisions of the Courts in Madhavikutty & Mohammed Swalleh 's cases cited supra, and the reasons stated

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above, even though Ext.P3 order has been issued by an authority not competent to issue the same, I am not inclined to interfere with the orders impugned herein and the writ petition is accordingly dismissed.

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Sd/- VIJU ABRAHAM JUDGE

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sm/

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PETITIONER EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE THE 4TH RESPONDEN CENTS OF PROPERTI MANICKAMANGALAM V	PATTA NO. 491 ISSUED BY T WIT RESPECT TO 18 ES IN SY NO. 138/17 OF ILLAGE DATED 18.11.1961.
EXHIBIT P2	TRUE COPY OF THE OF SUB REGISTRAR DATED 19.04.1988.	GIFT DEED NO. 689/1988 OFFICE, SREEMOOLANAGARAM
EXHIBIT P3	TRUE COPY OF THE PASSED BY THE 4TH 03.04.2018.	ORDER NO. C, 4-421/18 RESPONDENT DATED
EXHIBIT P4	TRUE COPY OF THE PASSED BY THE 3RD 09.05.2019.	ORDER NO. J-3054/18 RESPONDENT DATED
EXHIBIT P5	TRUE COPY OF THE 20538/2019 PASSED DATED 26.11.2019.	ORDER NO. LRJ3- BY THE 2ND RESPONDENT
EXHIBIT P6	TRUE COPY OF THE 75/2020 PASSED BY DATED 09.01.2020.	JUDGMENT IN WPC NO. THIS HONORABLE COURT
EXHIBIT P7	TRUE COPY OF THE RESPONDENT DATED	ORDER ISSUED BY THE 4TH 19.12.2019.

Shanmughan M.P. v. State of Kerala

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Shanmughan M.P. v. State of Kerala

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