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2025 DIGILAW 895 (KER)

Rangaswami S/o. Kadan (Late) v. State Of Kerala

2025-04-08

VIJU ABRAHAM

body2025
JUDGMENT : Both these writ petitions are filed challenging the very same order passed by the District Collector bearing No.DCPKD/9022/2020-LRG3 dated 24.03.2022 and therefore both the writ petitions are heard and disposed of by this common judgment. WP(C) No.31047 of 2022 2. It is averred that an extent of 4 acres in Survey No.343/1 and 1.72 acres in Survey No.343/3 of Agali Village originally belonged to petitioners' grandfather by name Maruthan, who obtained it from 'Mannarkkad Mooppilstanam' under 'verumpattam'. Petitioners father along with the adjoining tribal land owner Nanjan preferred TLA 244/87 and 208/87 respectively for restoration of land under Section 6(2) of the then Kerala Scheduled Tribes (Restriction of Transfer of Land and Restoration of Alienated Land Act), 1975 (hereinafter referred to as Act, 1975) against the 5 th respondent. The 3 rd respondent by order dated 12.10.1995 directed the 5 th respondent to deliver the possession of 5 acres of land to Maruthan and 2.5 acres of land to Odiyan Rangan within a period of 30 days subject to payment of compensation to the 5 th respondent. Petitioners grandfather Maruthan died in 1988, but the property was not restored inspite of Ext.P1 order. Pursuant to the commencement of Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999 (hereinafter referred to as Act, 1999), the 3 rd respondent took steps to reconsider the matter and notice was issued to the parties. On 16.12.2009 the petitioners' father Kadan appeared and stated that his father Maruthan had given on lease 6 acres of land to Thayappa Udayar and wanted the restoration of the same. The 5 th respondent was arrayed as opposite party, but she did not appear. On an enquiry conducted by the Agali Village Officer, it is revealed that the 5 th respondent transferred the property to the 4 th respondent and the 4 th respondent was heard on 24.1.2014. He claimed transfer of land belonging to the petitioners as per sale deed No.560/97 of SRO, Agali from the 5 th respondent and her children having an extent of 3.67 acres and 2.05 acres from un-surveyed land. As per Ext.P2 order since the transfer of land belonging to the petitioners by 5 th respondent to the 4 th respondent herein is against Act, 1999, he was directed to give back 5.72 acres in Survey Nos.343/1 and 343/3 of Agali Village to the tribes. As per Ext.P2 order since the transfer of land belonging to the petitioners by 5 th respondent to the 4 th respondent herein is against Act, 1999, he was directed to give back 5.72 acres in Survey Nos.343/1 and 343/3 of Agali Village to the tribes. The 4 th respondent challenged Ext.P2 in appeal before the 2 nd respondent. The 2 nd respondent set aside Ext.P2 as per Ext.P3 order. In Ext.P3, according to 2 nd respondent as per sale deed No.1472/66 and 2895/71, Maruthan and his son Kadan had transferred 3.67 acres in Survey No.343/1 and 2.05 acres in Survey No.343/3 totaling 5.72 acres to Thayappa Udayar, and found that as alienation above 5 acres is illegal, allowed the appeal by retaining 5 acres to the 4 th respondent under Section 8 of the Act and restoring the excess 72 cents to Kadan, father of petitioners directing payment of compensation to the 4 th respondent. It is challenging that part of Ext.P3 to hand over excess 72 cents the 4 th respondent has filed WP(C) No.10176/2016. Challenging Ext.P3 petitioners also preferred WP(C) No.22453/2020. Both these writ petitions were heard together and disposed of the same by Ext.P8 common judgment setting aside Ext.P3 order of the 2 nd respondent with a direction to reconsider the matter and pass appropriate orders taking into account the observations made by the court in the common judgment. After the remand, the matter was reconsidered by the 2 nd respondent and as per Ext.P9 order directed retention of 5 acres of land with the 4 th respondent and the remaining 72 cents with the petitioners as earlier decided in Ext.P3. It is challenging Ext.P9 order that the present writ petition has been filed. Aggrieved by the finding in Ext.P9 whereby allotting 72 cents of land to the petitioners, the 4 th respondent has preferred WP(C) No.15546/2022. 3. The learned counsel appearing for the petitioners in WP(C) No.31047/2022 would contend that Ext.P9 is a non est order as Ext.P1 order passed by the 3 rd respondent has not been set aside and therefore the action is without any authority, since the Act 1999 does not empower the authorities to suo motu review any order passed under the Act, 1975. The learned counsel for the petitioners would further contend that Ext.P10 Purchase Certificate cannot be acted upon. The learned counsel for the petitioners would further contend that Ext.P10 Purchase Certificate cannot be acted upon. Ext.P7 request made by the petitioners for issuance of a copy of the purchase certificate has been declined and later by Ext.P12 communication also petitioners request was declined holding that the files are not available with the office. But to the contrary copy was made available to the 2 nd respondent, as evident from Ext.P9 and a copy has been given to the 4 th respondent also on an application being made. It is submitted that the reluctant to issue a copy to the petitioners is suspicious and may be for the reason that the same might have been obtained by playing fraud. Even though the 4 th respondent has a claim that they obtained property as per Exts.P2 and P3 sale deeds no survey number is seen mentioned in the sale deeds and the properties are shown as un-surveyed land. But in Ext.P8 Purchase Certificate survey number of the property has been clearly mentioned. The learned counsel for the petitioner would further submit that schedule to Exts.P2 and P3 as well as the schedule to Ext.P10 Purchase Certificate reveal that the property is not an agricultural land and contended that the authorities are empowered under the 1999 Act only to deal with properties which are agricultural land. On the contrary, the learned counsel appearing for the 4 th respondent, who is the petitioner in WP(C) No.15546 of 2022 submitted that the contention raised by the petitioner cannot be accepted at all in as much as Ext.P2 order has become final and the petitioner has not challenged Ext.P2 in any of the proceedings. The learned counsel for the petitioners further submit that as per the recital in Exts.P4 and P5 sale deeds, it could be seen that the property has been put for agricultural use and therefore, the authorities under the 1999 Act has power to interfere in the matter. Having not challenged Ext.P2 the doctrine of acquiescence will apply as held by the Apex Court in Chairman, State Bank of India and Another v. M.J. James 2021 KHC OnLine 6704 . Petitioners would further contend that as per Section 5 of act 1999 the transfer of land to an extent of 2 hectares is not invalid. 4. Having not challenged Ext.P2 the doctrine of acquiescence will apply as held by the Apex Court in Chairman, State Bank of India and Another v. M.J. James 2021 KHC OnLine 6704 . Petitioners would further contend that as per Section 5 of act 1999 the transfer of land to an extent of 2 hectares is not invalid. 4. The learned Government Pleader on the basis of the counter affidavit filed on behalf of the 2 nd respondent in WP(C) No.15546/2022 would contend that pursuant to the direction issued by this Court in Ext.P8 judgment the matter was reconsidered and Ext.P9 order was issued and further submitted that the same was issued in accordance with law and therefore no interference is called for. 5. I have considered the rival contentions on both sides. 6. Admittedly, an order has been issued in favour of the predecessor in interest of the petitioners in WP(C) No.31047 of 2022 as per Ext.P1. By Ext.P1 a specific direction has issued to deliver possession of land having 5 acres of land to Maruthan and 2.5 acres to Odiyan Rangan. After the 1999 Act came into force Ext.P2 order has been issued suo motu without even setting aside Ext.P1 order. The learned counsel appearing for the petitioner in WP(C) No.15546/2022 and the learned Government Pleader could not bring to my notice any provision in the 1999 Act to suo motu review an order passed under the Act, 1975. It is to be noted that Section 22 of the Act, 1999, which is the repealing and saving clause, specifically mandates that notwithstanding the repeal of the Act, 1975, all orders issued by the competent authority or the Revenue Divisional Officer, so far as they are not inconsistent with the provisions of this Act, 1999 shall be deemed to have been made under the corresponding provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act. So going by Section 22 any order passed under the Act 1975 is validated and shall continue to be in force. An appeal filed by the petitioner in WP(C) No.15546/2022 was allowed by the District Collector as per the provisions of the Act 1999. So going by Section 22 any order passed under the Act 1975 is validated and shall continue to be in force. An appeal filed by the petitioner in WP(C) No.15546/2022 was allowed by the District Collector as per the provisions of the Act 1999. The same was challenged before this Court by both the parties and by Ext.P8 judgment this Court set aside the order and remitted the matter back with a series of directions. Paragraphs 9 to 14 of the judgment which reads as follows: “9. I am afraid that I cannot find full favour with the afore submissions of the learned Government Pleader because, as rightly argued by Sri. K.S. Madhusoodanan, unless the genuineness of the sale documents - stated to have been executed by late Marudan in favour of late Thayappa Udayar - was established and until the Purchase Certificate - allegedly obtained by late Thayappa Udayar - was found to be genuine, no right could have been found in favour of Sri. Murukesan, based on Ext.P1 Deed executed by Smt. Valliyamma. 10. Even when I closely read the orders impugned in both these cases, the District Collector has made no such enquiry and has proceeded to accept the documents of Sri.Murukesan as being genuine, but without even affording an opportunity to the petitioners in WP(C)No.22453/2020 to rebut the said assumption, through legally permissible processes. 11. Normally, when there is a dispute as regards the Purchase Certificate - particularly when it is admitted that same is a hand written one without any official endorsement contained therein – the District Collector should have exercised more circumspection and ought to have enquired into the matter in detail, before it could have been accepted. 12. Of course, as regards the documents that are stated to have been executed by late Marudan in favour of late Thayappa Udayar, certainly, if the petitioners in W.P.(C) No.22453 of 2020 have a case that same is a forged one, it is upto them to establish it through reliable and cogent materials or evidence; but acceptance of the Purchase Certificate mentioned above is certainly possible only after it had been properly verified. 13. It is clear from Ext.P3 that the afore verification has not been done by the District Collector and that he reviewed the earlier decision of the RDO, merely relying upon the documents and assuming it to be genuine. 14. 13. It is clear from Ext.P3 that the afore verification has not been done by the District Collector and that he reviewed the earlier decision of the RDO, merely relying upon the documents and assuming it to be genuine. 14. Obviously, therefore, this Court cannot grant imprimatur to the orders impugned in both these cases and am certain that the District Collector must reconsider the entire matter, taking note of my observations above. Resultantly, these writ petitions are disposed of and the order impugned, namely Ext.P3 in W.P. (C)No.22453/2020 - which is Ext.P8 in W.P. (C)No.10176 of 2016, is set aside and the District Collector is directed to reconsider the entire matter, after affording necessary opportunity of being heard to both sides; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment. Needless to say, while completing the afore exercise, the District Collector shall advert to my observations above and cause necessary investigation, particularly with respect to the Purchase Certificate, in terms of law and after following due procedure.” While reconsidering the matter as per Ext.P10 order as directed in Ext.P8 judgment, the District Collector has not gone into the contentions, especially the circumstances at which Ext.P2 order was passed while Ext.P1 order was in force. The statute does not mandate an automatic review of an order passed under the Act 1975 as soon as 1999 Act came into force.Further, there is absolutely no challenge to Ext.P1 order by any of the parties and the same has become final. The same has not been set aside by Ext.P2 order also. Therefore, I am of the view that the District Collector while reconsidering the matter ought to have first considered the question as to why Ext.P2 order was issued in place of Ext.P1. A perusal of Ext.P2 order would reveal that the same has been issued as Ext.P1 order has not been implemented yet. I am afraid non implementation of Ext.P1 order cannot be a reason for issuing Ext.P2 order. 7. The specific contention of the petitioners is that the land in question being not an agricultural land the authority empowered under the Act 1999, the Revenue Divisional Officer, has no authority or powers to pass an order in the nature of Ext.P2. I am afraid non implementation of Ext.P1 order cannot be a reason for issuing Ext.P2 order. 7. The specific contention of the petitioners is that the land in question being not an agricultural land the authority empowered under the Act 1999, the Revenue Divisional Officer, has no authority or powers to pass an order in the nature of Ext.P2. The learned counsel appearing for the petitioners in WP(C) No.31047 of 2022 would contend that as per the Act, 1975 the immovable property has been defined under Section 2(b) as property which includes standing crops and trees but does not includes growing grass, but in the Act 1999 the land has been defined under Section 2(b) as any agricultural land. On the strength of the definition given in Act, 1975 and Act, 1999 it is the contention of the learned counsel for the petitioners in WP(C) No.31047 of 2022 that in the 1975 Act, the immovable property includes standing crops and trees and not just agricultural land, whereas in the Act, 1999 the land has been defined as to mean only agricultural land. On the basis of the same, it is the contention of the learned counsel for the petitioners in WP(C) No.31047/2022 that the property covered by Exts.P4 and P5 are not agricultural land as evident from the schedule of these deeds and also as per the schedule to Ext.P10 Purchase Certificate and contended that since the properties are not agricultural land the 3 rd respondent RDO has no power to invoke the provisions of the Act, 1999 and pass an order in the nature of Ext.P2. Per contra, the learned counsel for the petitioner in WP(C) No.15546/2022 would submit that a perusal of the sale deeds in support of their case reveal that the property is used for agricultural activities. One aspect to be considered is that when a copy of Ext.P10 Purchase Certificate, was applied by the petitioners, by Ext.P7 communication petitioners were informed that the records are not available. But a perusal of Ext.P9 order would reveal that as directed by the District Collector the certified copy of Ext.P10 was submitted before the District Collector for consideration. One aspect to be considered is that when a copy of Ext.P10 Purchase Certificate, was applied by the petitioners, by Ext.P7 communication petitioners were informed that the records are not available. But a perusal of Ext.P9 order would reveal that as directed by the District Collector the certified copy of Ext.P10 was submitted before the District Collector for consideration. Yet again Ext.P11 application was filed under Right to Information Act in this regard and the petitioners were informed as per Ext.P12 that the files are not available and therefore, a copy of Ext.P10 Purchase Certificate cannot be issued to the petitioner. Why the document is suppressed from the petitioners is a matter which should have gained the attention of the District Collector. The learned counsel for the petitioners relies on the judgment in Chandrika Misir v. Bhaiyalal 1973 KHC 595 , Kiran Singh v. Chaman Paswan (AIR 1954 SC 340) and contend that Ext.P2 order which is a non est order as it is issued without any authority could be challenged at any stage of the proceedings and therefore, the principles of doctrine of acquiescence cannot be made applicable in the facts and circumstances of the present case. None of these aspects were considered by the District Collector while issuing Ext.P9 order. In view of the above, I am of the opinion that the matter requires reconsideration. Therefore, the above writ petitions are disposed of setting aside Ext.P9 in WP(C) No.31047/2022 and Ext.P12 in WP(C) No.15546/2022, with a consequential direction to the District Collector to reconsider the matter with notice to all parties including the petitioners and the party respondents in both these writ petitions and taking into consideration the observation made above and in Ext.P8 judgment. A decision in this regard shall be taken within an outer limit of 4 months from the date of receipt of a copy of this judgment.