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2025 DIGILAW 2316 (KER)

V. Balachandran Nair v. State Of Kerala

2025-08-26

S.MANU

body2025
JUDGMENT : S.MANU, J. The disputes in this writ petition originated over fifty years ago and even resulted in a tragic murder. Even so, the complexity of the issues involved makes it impossible to achieve quietus in this round of litigation also. 2. Petitioners 1 to 5 are children of late S.Vasudevan Pillai. Petitioners 6 and 7 are the wife and son of late Krishnan Kutty Nair, son of late Vasudevan Pillai. 3. Case of the petitioners is that late Vasudevan Pillai was in possession of approximately 56 acres of land in Vazhichal Village in Neyyattinkara Taluk and he was taking yield from the property by carrying out agricultural operations from 1927 onwards. To prove that he was cultivating rubber in the property a license issued by the Rubber Board on 9.1.1961 is produced. In 1946 the Tahsildar, Neyyattinkara initiated proceedings under Travancore Land Conservancy Act with respect to the properties in possession of late Vasudevan Pillai. Penalty and tax along with arrears were directed to be paid by Vasudevan Pillai and he complied with the orders. A notice issued to him on 20.9.1951 with respect to levy on paddy cultivated in the property has also been produced. One Ganapathi Sankaran, father of respondents 5 to 7, allegedly attempted to trespass into the property in 1964. Consequently, Vasudevan Pillai filed OS.No.615/1964 before the Munsiff Court, Neyyattinkara. Another suit was filed as O.S.No.159/1965 before the same court. The properties which were the subject matter of the suits were placed under receivership. On 02.08.1965, Vasudevan Pillai was murdered by Ganapathi Sankaran and some others who were sentenced to imprisonment for life. Suits were decreed in favour of the legal heirs of Vasudevan Pillai. Petitioners claim that they and their mother acquired all rights over the property after the demise of Vasudevan Pillai. Ext.P11 proceedings show the delivery of possession to them. 4. A ceiling case was initiated with regard to an extent of 21 acres of land against the 1 st petitioner and the mother. Accepting the contention that the land was a rubber plantation, it was exempted by the Land Board. Decision of the Land Board was upheld by this Court in C.R.P.No.837/1985 . A residential building was also constructed and the assessment was in the name of the mother. 5. Accepting the contention that the land was a rubber plantation, it was exempted by the Land Board. Decision of the Land Board was upheld by this Court in C.R.P.No.837/1985 . A residential building was also constructed and the assessment was in the name of the mother. 5. On 02.09.1964, Vasudevan Pillai had submitted an application for assignment of land to the Government, which according to the petitioners, was on a mistaken impression regarding the tenure of the land. Petitioners state that the joint possession of the properties were converted into separate possession by executing a partition deed on 10.11.1974. Later, the legal heirs of Ganapathi Sankaran raised disputes and petitioners 1 to 5 along with their mother and the deceased brother approached this Court in W.P.(C)No.12173/2007 for police protection. Petitioners 1 to 4 and the mother filed O.S.No.202/2008 before the Munsiff's Court, Neyyattinkara which was decreed on 12.10.2010. 6. Thereafter, Ext.P23 application was submitted to the Deputy Collector by the respondents 5, 7 and some others claiming that they are children of Ganapathi Sankaran and the disputed properties may be assigned to them. Collector issued notice to the petitioners. They submitted objections, produced documents and contended before the Collector that the properties have been in their long and continuous possession as of right. Collector passed Ext.P27. Collector found that the lease of kuthakapattam in favour of late Vasudevan Pillai was void ab initio as it was granted much after his demise. Collector further found that the petitioners have violated the conditions of the lease by executing partition deed. Further the Collector found that there was alienation of the properties to the third parties. Collector directed that the petitioners are liable to be evicted. Order passed by the Collector was challenged before the Land Revenue Commissioner by petitioners, their mother and deceased brother. Land Revenue Commissioner disagreed with the reasoning of the Collector and formulated some new points. The matter was remitted to the Collector for fresh consideration. 7. W.P.(C)No.35345/2009 was filed challenging Ext.P28 order, but was withdrawn to pursue statutory remedies. Thereafter, a revision petition under Section 16(5) of the Kerala Land Conservancy Act was filed before the Government. The mother and Krishnankutty Nair expired during the pendency of the revision petition. The revision petition was disposed of by Ext.P31 order dated 7.6.2014. 7. W.P.(C)No.35345/2009 was filed challenging Ext.P28 order, but was withdrawn to pursue statutory remedies. Thereafter, a revision petition under Section 16(5) of the Kerala Land Conservancy Act was filed before the Government. The mother and Krishnankutty Nair expired during the pendency of the revision petition. The revision petition was disposed of by Ext.P31 order dated 7.6.2014. Government directed the District Collector and Revenue Divisional Officer to probe into some aspects specified in paragraph 29 of the order. Survey was also directed to be conducted. It was also directed that the land, as per the extent of statutory holding limits, shall alone be assigned to the holders/settlers. Aggrieved by the findings in Exts.P27, P28 and P31 orders petitioners approached this Court in the above writ petition. 8. A counter affidavit was filed on behalf of the 1 st respondent. Crux of the contentions in the counter affidavit is as narrated hereafter. The Collector initiated proceedings on finding that the extent of 18.5980 hectares of land in Sy.No.425/1 and 424/1 was 'sarkar tarisu' and the land comprised in Re.Sy.No.1/32 is part of the 'reserve forest'. On a challenge by the petitioners 1 to 5 and their mother, the Land Revenue Commissioner remitted the matter back to the Collector, however, with findings adverse to the petitioners. In the revision filed by the petitioners Government considered the whole issue and heard all concerned as well as officials of the Revenue and Forest Departments. The Government considered as to whether the 'kuthakapattom' granted to late Vasudevan Pillai for 56 acres of land was valid or not. Further the relevance of Kuthakapattom Rules in the year 1977 was also considered. Lack of execution of agreement between Government and late Vasudevan Pillai was also noticed. Government was of the view that the area of land was under 'Kanipattu' category. Therefore, how the property came to the possession of late Vasudevan Pillai was also examined. Other relevant aspects were also considered and the decisions in Ext.P31 were taken. Government concluded that 'kuthakapattom' was void ab initio. Moreover, the Government arrived at a conclusion that with the introduction of Kerala Land Assignment Act , 1960 Kuthakapattom Rules ceased to exist. Even if it is assumed that the Rules could be invoked, kuthakapattom was issued in 1977, but Vasudevan Pillai was murdered much earlier. Hence, no agreement under the Rules was executed and hence the kuthakapattom was not concluded. Even if it is assumed that the Rules could be invoked, kuthakapattom was issued in 1977, but Vasudevan Pillai was murdered much earlier. Hence, no agreement under the Rules was executed and hence the kuthakapattom was not concluded. Government also found that 'kanipattu' land was unauthorisedly occupied by late Vasudevan Pillai. Government land was under wrongful possession and the petitioners are therefore in wrongful possession of Government land and are liable to be proceeded for eviction. The party respondents who are not scheduled tribes are not entitled to enjoy lands falling within the 'kanipattu' category. Above all, the Wildlife Warden reported to the Government that 30 acres out of 56 acres of land under possession of legal heirs of late Vasudevan Pillai falls within Klamala forest reserve. The 1 st respondent thus justified issuance of Ext.P31 order. 9. Party respondents also resisted the writ petition. They contended that their predecessors were in occupation of kanipattu land in Sy.Nos.425/1 and 424/1 from 1930 to 1965. Late Vasudevan Pillai encroached upon the land. Predecessors of the respondents obtained title to 2.77 acres of land as per patta issued on 28.10.1975. However, possession of the predecessors extended beyond the said extent of land. They contended that the petitioners are in possession of even their patta land. They claimed that they are the rightful claimants with respect to the disputed properties and the petitioners have no right over the same. 10. Though extensive arguments were addressed by all sides referring to various documents as also facts and circumstances, in my view, expressing any opinions about the rights of the Government, the petitioners or the party respondents in this writ petition will be improper as multifaceted and intricate factual aspects are involved. 11. The specific challenge in this writ petition is against Ext.P27 order passed by the District Collector, Ext.P28 order issued by the Commissioner of Land Revenue and Ext.P31 order issued by the Government. These proceedings originated on the basis of Ext.P23 representation submitted before the Deputy Collector by the party respondents on 6.2.2008. A reading of Ext.P23 shows that request in the said representation was for allotting the land comprised in Sy.Nos.424/1 and 425/1 in their favour. Claim raised in Ext.P23 was that the father and mother of the party respondents had occupied about 80 acres of kanipattu land in 1930 and started agricultural operations which was later grabbed by late Vasudevan Pillai. A reading of Ext.P23 shows that request in the said representation was for allotting the land comprised in Sy.Nos.424/1 and 425/1 in their favour. Claim raised in Ext.P23 was that the father and mother of the party respondents had occupied about 80 acres of kanipattu land in 1930 and started agricultural operations which was later grabbed by late Vasudevan Pillai. Petitioners submitted objection before the Collector controverting the contentions of the party respondents. Thereafter, Ext.P27 proceedings were issued by the Collector on 25.8.2009. Reading of Ext.P27 reveals that there was detailed consideration of various contentions raised by both sides. Finally, the claims of both sides were rejected and the Collector directed the Additional Tahsildar to take over possession of 17.36.706 acres of Government land. Possession of 30 acres of Klamala reserve forest areas was directed to be evicted from encroachment and handed over to the authorities concerned. The Commissioner of Land Revenue virtually disagreed with every finding of the Collector in Ext.P28. The Commissioner was of the view that there is no need to undertake any detailed discussion into the disputes between the private parties and the case should have been decided only on the basis of the doctrine of public trust. The matter was remitted to the District Collector for fresh consideration. The Government while issuing Ext.P31 took a different view again after detailed analysis of the facts and circumstances of the case and remitted the matter to the District Collector and Revenue Divisional Officer for probing into five different aspects pointed out in paragraph 29 of the order. It is pertinent to note that a contention of the party respondents, that the properties in dispute fell under Kanipattu lands, a contention not seriously urged either before the Collector or the Commissioner of Land Revenue, was taken note of by the Government, and the said aspect considerably influenced the decision of the Government. 12. Contention of the petitioners is that Ext.P30 document obtained from the Archives was presented before the Government for the first time and contentions were raised on the basis of the same by the party respondents. They submit that sufficient opportunity was not provided to them to refute the contentions raised on the premises that the entire area was Kanipattu lands. However, the said contention influenced the Government as revealed from Ext.P31. 13. They submit that sufficient opportunity was not provided to them to refute the contentions raised on the premises that the entire area was Kanipattu lands. However, the said contention influenced the Government as revealed from Ext.P31. 13. Both the Commissioner of Land Revenue and the Government decided to remit the matter to the District Collector for fresh consideration. However, while the Commissioner of Land Revenue was of the view that the entire issue ought to have been considered and decided solely on the basis of the doctrine of public trust, the Government formulated five different issues to be considered by the Collector and the Revenue Divisional Officer. 14. It is to be noted that the claims with respect to the disputed lands raised by both sides are complex in nature. It is also to be noted that some civil suits were filed by the petitioners or their predecessors in interest and the civil courts have passed decrees. Conflicting claims are arising for determination which may require detailed analysis of evidence and provisions of various relevant enactments. In the peculiar nature of the dispute involved I am of the view that while directing the District Collector to reconsider the issue it was not necessary on the part of the Government to formulate some issues and to limit the scope of enquiry by the Collector. The issues formulated by the Government for consideration by the Collector show that the Government have already partly decided the issue and entrusted the Collector to find out answers to some aspects which requires further verification/confirmation. An enquiry by the Collector as directed in Ext.P31 will be therefore of a restricted one and the parties may not be able to raise their rival claims appropriately. Even the rights of the Government will not be properly analysed and crystallized if the scope of the enquiry is circumscribed. Moreover, if any of the factors to be decided is not essentially within the scope of an enquiry by a revenue authority for the reason that the same may encompass different aspects which can be decided and resolved only by civil courts, the Collector must have the freedom to relegate any of the parties or both to approach civil courts. If the situation, on a detailed analysis, requires the Government to seek civil remedies, the said option should also be kept in reserve. 15. If the situation, on a detailed analysis, requires the Government to seek civil remedies, the said option should also be kept in reserve. 15. I find force in the argument of the petitioners that the issue of Kanipattu land was stressed only at the time of consideration of the revision petition, and that the petitioners could not therefore appropriately address the said contention. However, it is discernible that the Government was significantly impressed by the same, and the issues to be considered by the Collector on remit have been formulated on that basis. 16. In the above view of the matter, I find it appropriate to interfere with Ext.P31 order passed by the Government, to the extent it limits the consideration of the issue by the Collector to the aspects mentioned in paragraph 29 of the order. The Collector shall be free to consider all relevant aspects of the matter. The Collector may take steps to conduct survey of the entire disputed properties and ascertain actual possession with notice to the petitioners as well as the party respondents. The Collector shall thereafter issue notice to the petitioners as also the party respondents and hear them. It will be open to the Collector to hear the officers of the Forest and Revenue Departments also. In view of the peculiar facts and circumstances involved, the Collector may also consider as to whether any of the issues arising for determination requires adjudication by civil courts. Thereafter the Collector shall take a fresh decision in the matter. The Collector shall endeavour to complete this exercise within a period of eight months from the date of receipt of a copy of this judgment. Till a fresh decision is taken status quo shall be maintained with respect to the disputed lands. The writ petition is disposed of as above.