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2025 DIGILAW 700 (KER)

N J Joseph S/o. Late Sri. Job v. State Of Kerala

2025-03-24

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : Muralee Krishna, J. This writ appeal is filed under Section 5(i) of the Kerala High Court Act, 1958, by petitioner in W.P.(C)No.24614 of 2006, assailing the judgment dated 15.03.2013 in the writ petition as well as the order dated 06.03.2015 in R.P. No.546 of 2013 passed by the learned Single Judge. 2. The writ petition was filed by the appellant under Article 226 of the Constitution of India seeking a writ of Certiorari to quash Ext.P13 order dated 27.07.2005 of the 3 rd respondent Revenue Divisional Officer, Devikulam, cancelling Ext.P3 patta dated 26.03.1999 issued to the appellant in respect of 52.23 Ares of land situated in survey No.20/1 of KDH Village and also Ext.P17 order dated 03.02.2006 of the 2 nd respondent District Collector, Idukki District dismissing the appeal filed by the appellant against Ext.P13 proceedings. The appellant has also sought for a writ of Mandamus commanding the respondents not to interfere with the appellant’s title, possession and enjoyment of the properties covered by Ext.P3 pursuant to Exts.P13 and P17 orders. As per the impugned judgment dated 15.03.2013, the learned Single Judge found that the land in possession of the appellant had vested with the Government in terms of Section 3(1) of the Kannan Devan Hills (Resumption of Lands) Act, 1971 (‘KDH Act’ in short), and when a special procedure is provided under Section 9 of the KDH Act for assignment of such lands, in the absence of such an assignment by virtue of orders passed by the Government or the District Collector, as the case may be, Ext.P3 patta has no effect, and the authorities were justified in cancelling the same. Though the appellant by producing some additional documents filed R.P. No.546 of 2013 claiming error apparent on the face of record in the impugned judgment, the learned Single Judge dismissed the review petition holding that the additional documents produced by the appellant along with the review petition could show that only proposals were made for assignment of land in cutchery settlement. The land coming under KDH Act can be assigned only invoking the provisions under the said Act. Mere instruction to assign land under the provisions of the Land Assignment Act, will not be helpful without there being any statutory powers. Therefore, the learned Single Judge found that no sufficient ground was made out by the appellant to review the impugned judgment. 3. Mere instruction to assign land under the provisions of the Land Assignment Act, will not be helpful without there being any statutory powers. Therefore, the learned Single Judge found that no sufficient ground was made out by the appellant to review the impugned judgment. 3. Going by the averments in the Writ Petition, the case of the appellant is as under: The father of the appellant was an Advocate practicing at Devikulam, and he was granted patta in respect of 10 cents of land at KDH Village about 50 years ago. He was in residential occupation of that land by constructing a house, soon after the issuance of patta. Abutting this house property, he occupied 1 acre and 55 cents of Government land during the year 1950. Land conservancy proceedings were initiated against him by the revenue department as L.C. Case Nos.77 and 78 of 1968. The appellant’s father filed objections to the said proceedings. However, no further action was followed from the part of revenue authorities. He died in 1983. After the death of his father, the appellant continued in possession of the land and was issued with Ext.P3 patta on 26.03.1999. Thereafter, he started remitting basic tax also. The appellant gifted 66.6 cents of land out of the property covered in Ext.P3 patta to his brother Jolly Job as per Ext.P7 gift deed dated 29.12.2000. Thereafter, the 3 rd respondent Revenue Divisional Officer, Devikulam, initiated steps for cancelling Ext.P3 patta by issuing Ext.P8 notice dated 08.07.2003 to the appellant, followed by an enquiry. Though the appellant filed Ext.P9 objection dated 23.10.2003, no orders have been passed by the 3 rd respondent. Hence, the appellant approached this Court by filing W.P.(C)No.9246 of 2005 and as per Ext.P12 judgment dated 07.04.2005, this Court directed the 3 rd respondent to finalise the proceedings. Pursuant to the said direction, the 3 rd respondent passed Ext.P13 order in the enquiry proceedings on 27.07.2005, cancelling Ext.P3 patta. The appellant filed an appeal before the 2 nd respondent District Collector, which was dismissed as per Ext.P17 order dated 03.02.2006. Aggrieved by Exts.P13 and P17, the appellant filed W.P.(C)No.24614 of 2006 under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Exts.P13 and P17 orders and a writ of mandamus commanding the respondents not to interfere with the appellant’s title, possession and enjoyment of the properties covered by Ext. P3 patta. Aggrieved by Exts.P13 and P17, the appellant filed W.P.(C)No.24614 of 2006 under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Exts.P13 and P17 orders and a writ of mandamus commanding the respondents not to interfere with the appellant’s title, possession and enjoyment of the properties covered by Ext. P3 patta. 3.1. The 2 nd respondent filed a counter affidavit in the writ petition opposing the entitlement of the appellant and his predecessor to obtain patta in respect of the property under the Kerala Government Land Assignment Act, 1960 (‘KLA Act’ in short), contending that the patta can be issued only under the provisions of KDH Act and the Rules thereunder. It was contended by the 2 nd respondent that the Additional Tahsildar who issued Ext.P3 patta had no authority to issue the same. Under the KDH Act, only the District Collector has the authority to assign the land and issue the patta. After considering the rival contentions and materials on record, the learned Single Judge dismissed the writ petition and later the review petition also filed by the appellant. 4. Heard Sri.K.Ramakumar, the learned Senior Counsel appearing for the appellant and the learned Senior Government Pleader appearing for the respondents. 5. The learned Senior Counsel appearing for the appellant would argue that the land in question was not vested with the Government under Section 3 of the KDH Act, 1971. As per the preamble of the Act, the provisions of KDH Act are applicable only to the land in the possession of TATA Company on lease and not to other Government lands. The property in question is not included in the leased land to TATA Company and it is the Government land in Cutcherry settlement and hence there is no error in issuance of Ext.P3 patta. 6. On the other hand, the learned Government Pleader argued that the property covered in Ext.P3 patta is situated in an area where the KDH Act, 1971, is applicable and hence the provisions of KLA Act is not applicable to the land in question. In the case of land covered by the KDH Act, the District Collector is the authority, whereas in the case of property coming under the KLA Act, the Tahsildar is the authority to grant patta. In the case of land covered by the KDH Act, the District Collector is the authority, whereas in the case of property coming under the KLA Act, the Tahsildar is the authority to grant patta. More over Ext.P3 is issued by the deputy Tahsildar who is not competent to assign the land under the KLA Act also. Hence, no interference is needed to the impugned judgment and order of the learned Single Judge. 7. The land in question is situated within the area wherein KDH Act is notified as applicable by the Government. The preamble of the Act reads as under: “Preamble. — WHEREAS the lands comprising the entire revenue village of Kannan Devan Hills in the Devicolam taluk of the Kottayam district had been given on lease by the then Poonjar Chief to late Mr. John Daniel Munroe of London and Peermade on the 11 th day of July, 1877, for coffee cultivation; AND WHEREAS the right, title and interest of the lessor had been assumed by the former Government of Travancore; AND WHEREAS by such assumption the lands have become the property of the former Government of Travancore; AND WHEREAS the Government of Kerala have become the successor to the former Government of Travancore; AND WHEREAS large extent of agricultural lands in that village has not been converted into plantations or utilised for purposes of plantation and such lands are not required for the purposes of the existing plantation; AND WHEREAS the Government consider that such agricultural lands should be resumed for the distribution thereof for cultivation and purposes ancillary thereto;” 8. The reading of the preamble would show that lands comprising the entire revenue village of Kannan Devan Hills in the Devicolam taluk will come under the notification as it was leased out by the then Poonjar Chief. No land in the revenue village of Kannan Devan Hills were exempted from lease and continued as government land to treat as not coming under the KDH Act. It is specifically pleaded in the writ petition that the land in question is situated in KDH Village. Therefore the argument of the learned Senior Counsel that the land in question was not included in the lease made to late Mr. John Daniel Munroe of London and Peermade has no factual backing and hence cannot be accepted. 9. It is specifically pleaded in the writ petition that the land in question is situated in KDH Village. Therefore the argument of the learned Senior Counsel that the land in question was not included in the lease made to late Mr. John Daniel Munroe of London and Peermade has no factual backing and hence cannot be accepted. 9. As per Section 1(2) of the KDH Act, it deemed to have come into force on 21.01.1971. As per Section 1(3) of the Act, it applies to the land comprising the revenue village of Kannan Devan Hills in the Devicolam Taluk. Section 3 of the Act deals with vesting of possession of all lands situated in Kannan Devan Village in the Government. Section 3 of the KDH Act reads thus: “3. Vesting of possession of certain lands. (1)Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the possession of all lands situate in the Kannan Devan Hills village in the Devikulam taluk of the Kottayam district shall stand transferred to and vest in the Government free from all encumbrances, and the right, title and interest of the lessees and all other persons, including rights of mortgagees and holders of encumbrances, in respect of such lands, shall stand extinguished. (2)Nothing contained in sub-section (1) shall apply in respect of- (a)plantations, other than plantations belonging to trespassers ; (b)buildings, other than buildings belonging to trespassers, and lands appurtenant to, and necessary for the convenient enjoyment or use of, such buildings; (c)play-grounds and burial and burning grounds; and (d)lands in the possession of the Central Government or any State Government or the Kerala State Electricity Board. (3)Nothing contained in sub-section (1) shall apply in respect of so much extent of land held by a lessee under his personal cultivation as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto”. 10. As far as assignment of such lands covered by KDH Act, Section 9 is relevant. The said Section reads thus: “9. 10. As far as assignment of such lands covered by KDH Act, Section 9 is relevant. The said Section reads thus: “9. Assignment of lands- (1) The Government shall, after reserving such extent of the lands, the possession of which has vested in the Government under sub-section (1) of section 3 (other than lands, the possession of which has been restored under section 4), as may be necessary for purposes directed towards the promotion of agriculture or the welfare of the agricultural population to be settled on such lands, assign on registry the remaining lands to agriculturists and agricultural labourers in such manner, on such terms and subject to such conditions and restrictions, as may be prescribed. (2) The Government may, by notification in the Gazette, delegate their power of assignment under sub-section (1) to the Collector, subject to such restrictions and control as may be specified in the notification.” 11. A reading of Section 9(2) of KDH Act would make it clear that the power to assign the land vested in the Government under the provisions of the said Act is on the Government and such power can be delegated by notification in the Gazette to the District Collector. As rightly found by the learned Single Judge in the impugned judgment, if the property is part of the vested land under the KDH Act, necessarily the provisions of KDH Act and Rules made thereunder would apply for assignment of the said land. In this case, the appellant claims that he obtained Ext.P3 patta by following the procedure prescribed under the KLA Act and not under the KDH Act. 12. In Augustine K.B and another v. State of Kerala and others [ 2016 (2) KLJ 18 ] this Court considered a similar situation wherein patta was issued to the petitioner therein under KLA Act instead of KDH Act and held that since the land in question therein will not come within the exclusionary clause of sub-sections (2) and (3) of Section 3 and would come within the ambit of Section 3(1), the mandatory procedure contemplated under Section 9(2) of the KDH Act should have to be strictly adhered to. In that situation, the assigning authority under Section 9(2) of the KDH Act and KDH Rules would either be the District Collector concerned or an officer of the rank of District Collector appointed by the Government for the purpose. In that situation, the assigning authority under Section 9(2) of the KDH Act and KDH Rules would either be the District Collector concerned or an officer of the rank of District Collector appointed by the Government for the purpose. The procedure to be followed in the case of assignment of land under KLA Act and under KDH Act are entirely different. As per Section 4 of the KLA Act it is the Tahsildar of the Taluk in which the land is situated or any officer empowered by the Government in that behalf is the authorized officer to issue Patta. Section 4 of the KLA Act reads as under: “4. Procedure to be followed before Government lands are assigned. (1) When any Government land is proposed to be assigned by the prescribed authority, otherwise than by way of lease or licence, the Tahsildar of the taluk in which the land is situate or any officer empowered by the Government in this behalf shall notify in the prescribed manner that such land will, by public auction or otherwise, be assigned, and call upon those who have got any claim to such land to prefer to him their objections, if any, in writing, within a time which shall be specified in such notification. (2) If any objection is preferred within the time specified in the notification, the Tahsildar or such other officer shall enquire into the same and pass an order in writing either accepting or rejecting the claim in full or in part and intimate in writing the fact of such disposal to the claimant. (3) For the purposes of the enquiry under sub-section (2) the officer making the enquiry shall have all the powers conferred upon the Collectors and Tahsildars by the law for the time being in force regarding summoning of persons for disposal of matters connected with revenue administration.” 13. Rule 8 of the Kerala Land Assignment Rules (KLA Rules) deals with cancellation of registry in case the assignment was effected in contravention of provisions in Sub-rule 1(A) of Sub-rule (2) of that Rule. The said Rule reads as under: “8. Conditions of assignment on registry. (1) Lands, granted on registry shall be heritable and alienable: x x x x x x x x (1A) Notwithstanding anything contained in sub-rule (1), the land assigned on registry as per sub-rule (1) of Rule 7 shall be heritable and alienable. The said Rule reads as under: “8. Conditions of assignment on registry. (1) Lands, granted on registry shall be heritable and alienable: x x x x x x x x (1A) Notwithstanding anything contained in sub-rule (1), the land assigned on registry as per sub-rule (1) of Rule 7 shall be heritable and alienable. (1A) Notwithstanding anything contained in sub-rule (1), unoccupied lands assigned on registry shall be heritable but not alienable for a period of twelve years from the date of assignment on registry.; Provided that the assignee may mortgage such lands to the Government banks, financial institutions Rubber Board and Tea Board as security for obtaining loans for housing, agricultural or land improvement purposes. (2) The assignee or a member of his family or his successor-in-interest shall reside in the land if it is granted as house site, or shall personally cultivate the same if it is granted for cultivation; and such residence or cultivation, as the case may be, shall commence effectively within a period of one year, from the date of receipt of the patta or of the provisional patta in cases where a provisional patta is issued in the first instance: Provided that- (i) In the cases of assignment to military personnel or their dependents as the case may be, the assignee may cultivate the land by his own labour or by the labour of any member of his family and with the occasional assistance, if any, of hired labour or servants on wages payable in cash or in kind but not in crop share; (ii) the military personnel may apply for land anywhere in the State irrespective of the State to which they belong; and in the matter of assignment preference shall be given to persons belong to Kerala; (iii) the military personnel may lease for cultivation purposes the lands assigned to them whilst they are away on active service. (3) The registry shall be liable to be cancelled for contravention of the provisions in sub-rule (1) or sub-rule (2). The registry may be cancelled also, if it is found that it was grossly inequitable or was made under a mistake of facts or owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure. The registry may be cancelled also, if it is found that it was grossly inequitable or was made under a mistake of facts or owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure. In the event of cancellation of the registry, the assignee shall not be entitled to compensation for any improvements he may have made on the land. The authority competent to order such cancellation shall be the authority which granted the registry, or one superior to it: Provided that no registry of land shall be cancelled without giving the party or parties affected thereby, a reasonable opportunity of being heard: Provided further that no assignment of Land shall be cancelled if the annual family income of the transferee occupant does not exceed Rs. 10,000 (Rupees ten thousand only) and who does not own or possess any landed property, anywhere in the State: Provided also that in the case of a transfer of Land covered by the above proviso the assignee shall not be eligible for further assignment of Land anywhere in the State. 14. The property covered in Ext.P3 patta is situated within the area wherein KDH Act is made applicable by the Government with effect from 21.01.1971. While going through the pleadings in the writ petition in the light of Section 3 of KDH Act it is evident that the land in question will not fall under the exemptions provided in sub-sections (2) and (3) of Section 3 of the KDH Act. Therefore, the provisions applicable for assignment of the land in question on the date of issuance of patta was the KDH Act and the Rules made thereunder. But, as rightly found by the learned Single Judge, Ext P3 patta was issued to the appellant by Additional Tahsildar who is an incompetent officer under KDH Act to assign the land. He is incompetent to assign the land under the KLA Act also. Therefore, the 3 rd respondent Revenue Divisional Officer, Devikulam is justified in cancelling Ext.P3 patta by virtue of Ext P13 proceedings. No irregularity or illegality could be pointed out in the said proceedings of the 3 rd respondent. He is incompetent to assign the land under the KLA Act also. Therefore, the 3 rd respondent Revenue Divisional Officer, Devikulam is justified in cancelling Ext.P3 patta by virtue of Ext P13 proceedings. No irregularity or illegality could be pointed out in the said proceedings of the 3 rd respondent. Having considered the materials on record and the submissions made at the Bar as discussed above, we find no sufficient ground to interfere with the impugned judgment of the learned Single Judge. In the result, the writ appeal fails and accordingly stands dismissed.