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2012 DIGILAW 724 (KER)

R. Natarajan v. Village Officer

2012-07-31

P.N.RAVINDRAN

body2012
JUDGMENT P.N. Ravindran, J. 1. The petitioner's father owned a parcel of land situate in Sy.Nos.476/1 and 478/1 of Ernakulam Village, Kanayannur Taluk, Ernakulam District. He obtained the said property as per a partition deed dated 23.1.1993. On 3.9.2002 the petitioner's father offered to surrender 2.28 ares of land (228 sq.meters) situate in Sy.No.478/1 of Ernakulam Village, Kanayannur Taluk, Ernakulam District for widening the Thammanam – Pulleppady road. Three days later, to be exact on 6.9.2002, he submitted an application for a building permit to put up a building in 774.51 sq.meters of land in Sy.Nos.476/1 and 478/1 of Ernakulam Village, Kanayannur Taluk, Ernakulam District. That application was allowed, a building permit was issued and the petitioner's father constructed a building, which was completed, as revealed by the files produced by the Cochin Corporation, on 15.10.2005. 2. Long after the construction of the building was completed, the petitioner's father executed Ext.P2 settlement deed dated 2.9.2011 settling 2.08 ares of land situated in Sy.No.478/1 of Ernakulam Village, Kanayannur Taluk, Ernakulam District on the petitioner, his son. The said land is admittedly part of 2.28 ares of land, which the petitioner's father had offered to surrender, for widening the Thammanam - Pulleppady road. After Ext.P2 settlement deed was executed, the petitioner submitted Ext.P3 application before the Village Officer, Ernakulam for effecting mutation in the revenue records. The Village Officer received the application on 18.11.2011, but declined to act on the application on the ground that the land in respect of which mutation was sought, is land surrendered by the petitioner's father for widening the Thammanam - Pulleppady road. Hence this writ petition for an order directing the Village Officer, Ernakulam to effect mutation in the revenue records in respect of the land settled on the petitioner as per Ext.P2 settlement deed and to accept land tax from him. 3. The main contention raised by the petitioner is that though his father had given consent in Form A prescribed in rule 3 of the Kerala Land Relinquishment Rules, 1958 by submitting the original of Ext.P1 application, no order was passed by the competent authority either accepting the relinquishment or rejecting it and therefore, as the land offered to be surrendered did not vest in the Government, his father was competent to settle the properties on him and therefore, he is entitled to have mutation effected in the revenue records. 4. 4. The second respondent, Revenue Divisional Officer, Fort Cochin, has sworn to a counter affidavit dated 16.1.2012. In paragraph 3 thereof, it is contended that the petitioner's father unconditionally surrendered all his rights over 2.28 ares of land situate in Sy.No.478/1 of Ernakulam Village, Kanayannur Taluk, Ernakulam District for widening and development of Thammanam -Pulleppady road and that the said parcel of land is required to straighten a curve on the road. It is stated that the petitioner's father had no right to execute any document in respect of the surrendered land in the light of the undertaking given by him in Ext.P1 and that survey and demarcation of the lands required for widening the Thammanam - Pulleppady road is in progress and will be completed within a short time. It is stated that the application submitted by the petitioner to effect mutation in the revenue records cannot be considered as the land surrendered by his predecessor-in-interest is required for widening and development of Thammanam - Pulleppady road. 5. Pursuant to the order passed by this Court on 25.1.2012, the District Collector, Ernakulam has filed a report dated 22.2.2012 wherein he has adverted to the various steps taken to widen the Thammanam - Pulleppady road. In paragraph 4 thereof the District Collector, Ernakulam has stated that the Mayor of Cochin Corporation has informed him that the petitioner's father had availed exemption in floor area ratio for construction of a building after surrender of land. On behalf of the Cochin Corporation, which got itself impleaded as the additional fourth respondent, its Secretary has sworn to a counter affidavit dated 14.6.2012. It is stated therein that the application submitted by the petitioner's father for construction of a building was allowed and a building permit was issued to construct a six storied building in view of the surrender of the land by him for widening the Thammanam - Pulleppady road. It is stated that the application submitted by the petitioner's father for a building permit was forwarded to the Road Committee, which approved it on condition that no compound wall should be constructed on the eastern side of the property through which the Thammanam -Pulleppady road passes. It is stated that the application submitted by the petitioner's father for a building permit was forwarded to the Road Committee, which approved it on condition that no compound wall should be constructed on the eastern side of the property through which the Thammanam -Pulleppady road passes. It is stated that the building permit was issued on the basis that he has surrendered land free of cost for widening the Thammanam - Pulleppady road and therefore, the petitioner cannot seek or to be granted the relief prayed for in the writ petition. The petitioner has filed a reply affidavit dated 27.6.2012 reiterating his contention that his father had only offered to surrender the land, but the offer had not been accepted and therefore, it cannot be said that the land which his father had offered to surrender free of cost, vested in the Government. 6. I heard Sri.P.B.Sahasranaman, learned counsel appearing for the petitioner, Sri.Joseph George, learned Government Pleader appearing for respondents 1 to 3 and Sri.Jibu P.Thomas, learned standing counsel appearing for the Cochin Corporation. Sri.P.B.Sahasranaman, learned counsel appearing for the petitioner contended that the Revenue Divisional Officer, Fort Cochin, should have, on receipt of Ext.P1 application, conducted an enquiry after following the procedure prescribed in the Kerala Land Relinquishment Act, 1958 and the Rules framed thereunder and after the expiry of the period stipulated for submission of objections, passed an order either rejecting or accepting the application and that having not been done, the consequence mentioned in section 4C of the Kerala Land Relinquishment Act, 1958, namely vesting of the land surrendered, did not take place. The learned counsel appearing for the petitioner contended that in such circumstances as the land did not vest free from encumbrances in the Government, the petitioner's father was competent to settle the property on him by executing a settlement deed. Though the respondents do not dispute the fact that Ext.P1 application was made by the petitioner's father expressing willingness to surrender land for widening and development of Thammanam - Pulleppady road, they have no answer to the contention raised by the petitioner that no enquiry under section 4C of the Kerala Land Relinquishment Act, 1958 was held and an order was not passed and therefore the consequences mentioned in section 4C of the Act do not follow. However, the files produced by the learned standing counsel appearing for the Cochin Corporation disclose that three days after Ext.P1 application for unconditional surrender of 2.28 ares of land in Sy.No.478/1 of Ernakulam Village, Kanayannur Taluk, Ernakulam District was submitted, the petitioner's father applied for construction of an eight storied building and that application was forwarded to the Road Committee for disposal in accordance with the Kerala Municipality Building Rules, 1999. In view of Ext.P1 application and the offer made by the petitioner's father to unconditionally surrender 2.28 ares of land in Sy.No.478/1 of Ernakulam Village, Kanayannur Taluk, Ernakulam District for widening and development of Thammanam - Pulleppady road, the Road Committee recommended grant of a building permit to construct a six storied building and thereupon Ext.R4(a) building permit was issued to the petitioner's father. The files disclose that the construction of a six storied building was completed on 15.10.2005 and thereafter an occupancy certificate was issued. It was years thereafter that the petitioner's father executed Ext.P2 settlement deed settling the very same property, which he had offered to surrender for widening and development of the road, on his son, the petitioner. One of the conditions subject to which the building permit was issued to the petitioner's father was that he should not put up a compound wall on the eastern side of the land, namely, the side abutting the Thammanam - Pulleppady road. However, in Ext.P2 settlement deed, the petitioner's father has chosen to describe the eastern boundary as private pathway in Sy.No.478/1. 7. It is evident from the materials that a building permit was issued to the petitioner's father to construct a six storied building in relaxation of the rules only because of the surrender of 2.28 ares of land in Sy.No.478/1, in accordance with the provisions contained in Chapter XI of the Kerala Municipality Building Rules, 1999, which deals with grant of building permits for construction in plots, parts of which have been surrendered free of cost for road development. The petitioner does not dispute the fact that his father had obtained a building permit in accordance with the provisions contained in Chapter XI of the Kerala Municipality Building Rules, 1999. The petitioner does not dispute the fact that his father had obtained a building permit in accordance with the provisions contained in Chapter XI of the Kerala Municipality Building Rules, 1999. In any case, as the petitioner's father had surrendered a portion of the land on the eastern side of the holding which abuts the Thammanam -Pulleppady road for the purpose of obtaining a building permit, it must be deemed that he had dedicated the land for user as a public way. Though the dedication by itself would not altogether deprive him of his rights in the soil, his enjoyment of the land cannot be inconsistent with the public right of passage over it. As the petitioner's father had not placed any restrictions as to the time or mode of user of the land surrendered by him and the surrender was unconditional though it was not formally accepted, I am of the opinion that he could not have done anything inconsistent with the public right of passage over the land in respect of which Ext.P1 application was submitted under the Kerala Land Relinquishment Act, 1958. Such being the situation, the mere fact that a formal order accepting the unconditional surrender of land had not been passed by the Revenue Divisional Officer, Fort Kochi is not a reason to hold that dedication of the land for user as a public way did not take place. In such circumstances, having regard to the conduct of the petitioner and his father, I am of the opinion that no relief can be granted to the petitioner in exercise of the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. I accordingly hold that no grounds have been made out warranting grant of the reliefs prayed for. The writ petition fails and is accordingly dismissed. No costs.