IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
WP(C) NO. 35291 OF 2019
PETITIONERS:
1 SHEELA KURIAN
AGED 63 YEARS, W/O.M.A.KURIAN,
MAZHUVANCHERIPARAMBATH,
MANGALATH ROAD,
NORTH PARAVUR-683513.
2 MATHEW KURIAN
AGED 37 YEARS, S/O.M.A.KURIAN,
MAZHUVANCHERIPARAMBATH,
MANGALATH ROAD,
NORTH PARAVUR-683513.
BY ADVS.
C.S.AJITH PRAKASH
SRI.T.K.DEVARAJAN
SRI.FRANKLIN ARACKAL
SRI.M.B.SOORI
SRI.ASWIN T SURESH
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
REVENUE DEPARTMENT,
GOVERNMENT SECRETARIAT,
TRIVANDRUM, PIN-695001.
2 THE DISTRICT COLLECTOR ERNAKULAM,
OFFICE OF THE DISTRICT COLLECTOR,
COLLECTORATE, CIVIL STATION,
KAKKANAD, PIN-682030.
3 REVENUE DIVISIONAL OFFICER,
1ST FLOOR, K.B.JACOB ROAD,
FORT KOCHI-682001.
4 THE TAHSILDAR,
OFFICE OF THE TAHSILDAR,
1ST FLOOR, ABOVE SUB REGISTRAR OFFICE,
POLICE STATION ROAD,
NORTH PARAVUR, PIN-683513.
W. P. (C). No. 35291 of 2019
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5 THE VILLAGE OFFICER,
OFFICE OF THE VILLAGE OFFICER,
NORTH PARAVUR, PIN-683513.
6 THE COMPETENT AUTHORITY FOR LAND ACQUISITION,
NATIONAL HIGHWAY (CALANH-66),
ERNAKULAM, ATHANI,
NORTH PARAVOOR.P.O., PIN-683513,
REPRESENTED BY SPECIAL DEPUTY COLLECTOR (LA).
BY GOVERNMENT PLEADER SRI.B.S.SYAMANTHAK
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16.02.2022, THE COURT ON 20.05.2022 DELIVERED THE
FOLLOWING:
W. P. (C). No. 35291 of 2019
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T.R. RAVI, J.
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W. P. (C). No. 35291 of 2019
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Dated this the 20th day of May, 2022
JUDGMENT
The petitioners and one Abraham Kurian are joint owners of property having an extent of 48 cents in Sy.No.211/9 and 211/10A. Abraham Kurian is the son of the 1st petitioner and the brother of the 2nd petitioner. The property devolved on the petitioners and Abraham Kurian after the demise of Sri M.A.Kurian, the husband of the 1st petitioner. The writ petition has been filed being aggrieved by the classification of an extent of 18 Ares and 9 M 2 of property in Sy.No.211/9 in North Paravur Village as Nilam by the Village authorities even though according to the petitioners the property had been classified as Purayidam earlier in the revenue records.
2. The petitioner has produced as Ext.P2, copy of the Registered Partition Deed No.230/71, whereby the properties had been obtained by the father of late M.A.Kurian. Later, the father of late M.A.Kurian had executed Ext.P1 registered Settlement Deed No.2894/1977 of North Paravur SRO, whereby the properties were settled in favour of late M.A.Kurian. The petitioners point out that in Exts.P1 & P2, the nature of the property is not stated as W. P. (C). No. 35291 of 2019 4 Nilam and it is also stated that there are trees in the property showing that it is a purayidam. It is also pointed out that in Ext.P2, the property has been described as Purayidam in the schedule. The petitioners submit that 13.70 Ares of land belonging to the petitioners were acquired under LAC No.71/1995 while M.A.Kurian was alive on the basis of notification dated 22.12.1992, for the construction of NH-17 North Paravur. Ext.P3 is the notice dated 29.11.1995. In Ext.P3, the property is described as Purayidam. The petitioners state that their properties come under Sy.Nos.211/9 and 211/10A and properties in both these Survey Numbers have been classified as Purayidam and not Nilam. Petitioners also state that after the acquisition, the petitioners are in possession of 48 cents in Sy.No.211/9 and 211/10A. It is further submitted that out of the said 48 cents, 18.9 Ares of property is lying in Sy.No.211/9 and 1.39 Ares is lying in 211/10A. Ext.P4 produced is the reference made for enhancement of compensation. Ext.P4 also refers to the property as dry land. It is submitted that compensation itself was calculated on the basis that the property is dry land. Ext.P5 is the building permit issued on 29.12.1981 by the North Paravur Municipality to late M.A.Kurain, based on which he had constructed a residential house in the property. This is W. P. (C). No. 35291 of 2019 5 another incident pointed out by the petitioners to show that the property is Purayidam. Ext.P6 is the tax receipt for payment of basic tax during 2010-11 in which also the property is shown as Purayidam. In Ext.P7, which is the possession certificate issued by the Village Office, Parur, the property is shown as dry land. However, in Ext.P8, which is a tax receipt issued on 21.12.1918, the property was shown as Nilam. The petitioners submit that such a classification was without any legal and factual basis. In Ext.P8, the major portion of the property belonging to the petitioners which is in Sy.No.211/9 is shown as Nilam and a small portion which is in Sy.No.211/10A is shown as Purayidam. Ext.P9 is the Thandaper extract relating to the property, which also shows the property as Purayidam. Ext.P10 is the communication issued by the Agricultural Field Officer attached to Krishi Bhavan, North Paravur on 12.02.2019 stating that the property is not included in the Draft Data Bank approved by the Local Level Monitoring Committee. In Ext.P11, the petitioners requested under the Right to Information Act, to the 5 th respondent for information as to whether there is a basic tax register in the Paravur Village showing the classification of the property. Ext.P12 is the reply received by the petitioner which says that there is no BTR available in the W. P. (C). No. 35291 of 2019 6 Paravur Village Office. Ext.P12 also says that as per the Settlement Register, the property is shown as Nilam. Petitioners submit that the properties of the petitioners have been further notified for acquisition for NH-66 in North Paravur and since the classification is as Nilam, the petitioners will not be able to get the right compensation which is due to them. Petitioners pointed out that during the earlier acquisition the property had been treated as Purayidam and not as Nilam. Petitioners submit that prior to 2018, the properties had been treated as Purayidam and it is only after 2018 that it is being shown as Nilam. It is submitted that on the application submitted by the petitioners they have been issued with Ext.P15 which is a copy of the entry in the Thandaper Register. At present, it shows the properties as Nilam, while in Ext.P18, which is the old Thandaper extract, the property is shown as Purayidam. The petitioners hence submit that the present classification as Nilam is without any supporting materials whatsoever.
3. Petitioners applied under Form 9 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (2008 Act for short) for classifying their property as Purayidam. Ext.P16 is the copy of the application. This Court had by an interim order dated 23.02.2021 directed the 3rd respondent to pass orders on Ext.P16 W. P. (C). No. 35291 of 2019 7 application. The 3rd respondent by Ext.P20 rejected the application on 15.11.2021. The petitioner had produced before the 3 rd respondent a certified copy of the prior document relating to the property in Sy.No.211/9 which is of the year 1940 to show that the property is Purayidam. Ext.P18 is the Document No.1441/1115ME. Ext.P18(a) is a transcript of the document prepared by retired District Registrar Mr.Muraleedharan, for easy reading. The petitioners have also produced Ext.P19 report dated 22.02.2021 of the Revenue Divisional Officer stating that the lands have been converted prior to 1967. In Ext.P20, the 3 rd respondent has relied on the entry in the Settlement Register and has rejected the application stating that the petitioners have failed to prove that the property had been converted prior to 1967. It is further stated that the Document of 1940 does not unequivocally show that the property is Purayidam.
4. The present grievance of the petitioners is that they have been served with a notice by the Special Tahsildar (LA) NH- 66, North Paravur for the purpose of fixing the compensation. It is submitted that unless the revenue records are corrected showing the property of the petitioner as Purayidam, the petitioners will be seriously prejudiced while fixing the compensation. W. P. (C). No. 35291 of 2019 8
5. Heard Sri.C.S.Ajith Prakash on behalf of the petitioners and Sri.B.S.Syamanthak, learned Government Pleader on behalf of the respondents.
6. A reading of the prior title deed clearly shows that the property is Purayidam. There is no reason to doubt the veracity of Exts.P1 & P2 which are of the years 1971 and 1977 which clearly show the property as Purayidam. It can also be seen that the basic tax was being received on the basis that the property is Purayidam and the petitioner had also been given compensation for land acquisition as early as in 1995 treating the property as Purayidam. These are all documents which are prior to the 2008 Act. It is also evident from the documents produced that it was only in 2018 that the classification was changed as Nilam, apparently based on the entry in the Settlement Register as there is no BTR available in North Paravur Village. It is true that the Settlement Register may show the nature of the property at the time the entry was made. However, the subsequent changes to the property cannot be seen from the Settlement Register. The reasoning in Ext.P20 that the 1940 document does not unequivocally prove that the property is Purayidam does not appear to be factually correct. The 3 rd respondent has come to the said conclusion based on the entry in W. P. (C). No. 35291 of 2019 9 Ext.P18 in the schedule, which shows that the property is lying together and has Purayidam, Veliparambu and Nilam within it. According to the 3rd respondent, since the Survey Numbers do not separately indicate the nature of land, it is not possible to ascertain whether the property in Sy.No.211/9 was Purayidam. I do not think that the said reasoning is correct. In Ext.P18 what is stated is that the property is comprised in Sy.Nos.211/10A, 211/9 and 211/1. The total extent would appear to be around 3 Acres, out of which 62 cents is in Sy.No.211/9. It would further appear that 1.47 Acres is Kottakkanakkan purayidam and 1.31 Acres is Madavana Padinjare Velimparambu, both of which cannot be treated as nilam. It is also seen from the narration in the document that the property has several residential buildings from which rent was being collected. The document is 27 years prior to the coming into force of the KLU order. Along with other available evidence regarding the nature of the property in 1971, 1977, 1981, etc. There can be no justification for the conclusion that the property is not converted prior to 1967. This aspect is also clear from Ext.P2 which is of the year 1971, four years after the coming into force of the KLU order, which describes the property as purayidam. The description also shows that it is part of a larger W. P. (C). No. 35291 of 2019 10 extent of land from which 15 cents each had been given to three Kudikidappukars in the property. The boundaries will also show that on one side there is a road and on the other three sides there are purayidams.
7. The petitioner relies on the judgments in Indira P.S. & Ors. v Sub Collector, Fortkochi & Anr. reported in [2020 (4) KHC 33] to submit that the description in the old settlement register as nilam cannot be relied on and other statutory documents like BTR which shows the property as purayidam cannot be ignored. It is hence submitted that in 2018 a change was brought about in the revenue records only based on the old settlement register and there was no other material available to show that it was nilam, while the existing documents would show the property as purayidam. The counsel also referred to the judgment in Aboobacker M & Ors. V. Union of India & Ors reported in [2021 (5) KHC 761] to show that while valuing the land for the purpose of payment of compensation under the National Highways Act, 1956, the competent authority must make a comprehensive enquiry adverting to the documents of title, the physical nature of property, the purpose for which it had been used prior to acquisition, the nature of the locality, etc. Having W. P. (C). No. 35291 of 2019 11 considered the documents and pleadings and the arguments put forward by the Counsel, this Court is of the opinion that the petitioner is entitled to succeed.
8. The writ petition is allowed. Ext.P20 is quashed. It is declared on the basis of the prior title deeds and other documents on record that the property belonging to the petitioners in Sy.No.211/9 is a purayidam and had been so even prior to 1967. Respondents 3, 4 and 5 are directed to take necessary steps to classify the property having an extent of 18.9 Ares in Sy.No.211/9 of North Paravur Village as purayidam in the revenue records. There will be a further direction to the 6 th respondent to determine the compensation of the petitioners' land notified for acquisition for NH-66, treating the land as dry land/purayidam and pay the compensation accordingly.
Sd/-
T.R. RAVI JUDGE Pn/dsn W. P. (C). No. 35291 of 2019 12 APPENDIX OF WP(C) 35291/2019 PETITIONERS' EXHIBITS EXHIBIT P1 A TRUE COPY OF THE SETTLEMENT DEED NO.2894/77 DATED 12.9.1977 OF NORTH PARAVOOR SRO.
EXHIBIT P2 A TRUE COPY OF THE PARTITION DEED NO.230/71. EXHIBIT P3 A TRUE COPY OF THE NOTICE DATED 29.11.1995 ISSUED TO LATE MR.M.A.KURIAN UNDER THE PROVISIONS OF THE LAND ACQUISITION ACT, 1894. EXHIBIT P4 A TRUE COPY OF THE REFERENCE MADE BY THE SPECIAL THASILDHAR (LA)(NH) NO.IV.
EXHIBIT P5 A TRUE COPY OF THE BUILDING PERMIT DATED 29.12.1981 ISSUED BY THE NORTH PARUR MUNICIPALITY.
EXHIBIT P6 A TRUE COPY OF THE TAX RECEIPT DATED 7.4.2010 ISSUED IN THE YEAR 2010.
EXHIBIT P7 A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 11.2.2016 ISSUED FROM THE PARAVUR VILLAGE OFFICE.
EXHIBIT P8 A TRUE COPY OF THE TAX RECEIPT DATED 21.12.2018.
EXHIBIT P9 A TRUE COPY OF THE EXTRACT OF THE 'THANDAPER' OF THE PETITIONERS PROPERTY ISSUED FROM THE PARAVUR VILLAGE.
EXHIBIT P10 A TRUE COPY OF THE COMMUNICATION ISSUED BY AGRICULTURAL FIELD OFFICER KRISHIBHAVAN, NORTH PARAVOOR, DATED 12.2.2019.
EXHIBIT P11 A TRUE COPY OF THE APPLICATION UNDER THE RTI ACT SUBMITTED BEFORE THE 5TH RESPONDENT BY THE 2ND PETITIONER.
EXHIBIT P12 A TRUE COPY OF THE REPLY GIVEN BY THE VILLAGE OFFICER.
EXHIBIT P13 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 5TH RESPONDENT. EXHIBIT P14 A TRUE COPY OF THE REPLY GIVEN BY THE 5TH RESPONDENT DATED 27.2.2019.
EXHIBIT P15 A TRUE COPY OF THE EXTRACT OF THE 'THANDAPER' OF THE PETITIONERS PROPERTY ISSUED BY THE 5TH RESPONDENT.
W. P. (C). No. 35291 of 2019 13 EXHIBIT P16 A TRUE COPY OF THE APPLICATION DATED 10.10.2019 (WITHOUT ANNEXURES) SUBMITTED BEFORE THE 3RD RESPONDENT.
EXHIBIT P17 A TRUE COPY OF THE RECEIPT DATED 10.10.2019 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT. Exhibit P18(a) A TRUE COPY OF THE TRANSLATION OF THE OLD MALAYALAM SCRIPT PREPARED BY THE RETIRED DISTRICT REGISTER, MURALEEDHARAN.
Exhibit P19 A TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER BEARING NO 90/2021 DATED 22/02/2021 TO THE RDO.
Exhibit P20 A TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT NUMBERED AS K4-4543/19/K REJECTING THE PETITIONERS FORM OF APPLICATION DATED 15.11.2021.
Exhibit P21 A TRUE COPY OF THE NOTICE DATED 23.10.2021 ISSUED BY THE SPECIAL TAHSILDAR (LA) NH-66, NORTH PARUVUR.