Kerala High Court

Balarama Panicker vs State Of Kerala on 3 August, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     TUESDAY, THE 3RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943
                        WP(C) NO. 15294 OF 2020
PETITIONER:

          BALARAMA PANICKER
          AGED 73 YEARS
          S/O. SEKHARAN CHANNAR,
          LAKSHANAYIL,
          MANACKAD, MAVELKKARA, ALAPPUZHA DISTRICT.

          BY ADVS.
          GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
          SRI.A.R.DILEEP
          SRI.P.J.JOE PAUL
          SRI.MANU SRINATH
          SRI.RAJAN G. GEORGE



RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO GOVERNMENT,
          DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM 695 001.

    2     DISTRICT COLLECTOR,
          COLLECTORATE, ALAPPUZHA 688 001.

    3     SETTLEMENT OFFICER,
          (INAM LANDS), KOTTAYAM 686 001.

    4     TAHSILDAR,
          TALUK OFFICE, MAVELIKKARA 690 101.

          ADV.SMT.MABLE C.KURIAN, GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO.15294/2020
                                2

                  P.V.KUNHIKRISHNAN, J
            -------------------------------
                W.P.(C)No.15294 of 2020
           --------------------------------
         Dated this the 03rd day of August 2021


                            JUDGMENT

According to the petitioner, 65 cents of land

in Sy.No.103/70 of Mavelikara Village, Mavelikara

Taluk is a Service Inam Land possessed by the

petitioner in continuation of his mother. It is

stated in the writ petition that, by operation of

the Kerala Service Inam Lands(Vesting and

Enfranchisement)Act, 1981(for short 'the Act'), all

services attached to lands held under a tenure were

abolished and all right, title and interest of the

land owners in Service Inam Lands held by

Landholders stood vest with Government free from

all encumbrances. According to the petitioner, by

virtue of Section 5, the landholder of any holding

or part of a holding, the right, title and interest

in respect of which have vested in the Government WP(C) NO.15294/2020

under the said Act shall be entitled to assignment

of such right, title and interest. According to

the petitioner, in respect of 65 cents of land, the

3rd respondent had illegally issued Certificate of

Purchase in favour of one Karunakara panicker and

the same was subject matter of challenge in appeal

before the 2nd respondent. As per Ext.P1 order, the

Settlement Officer (Inam Lands), Kottayam, observed

like this:

"This factom of possession can be arrived at by perusing the judgment in OS.82/81 of the Munsiff Court, Mavelikkara which binds both parties. The question in dispute in OS.82/81 was also who was in possession of the plaint schedule property in that suit. The court found that the 2 nd respondent here in Sri.Balarama Panicker is in possession of the scheduled property (ie. Disputed 65 cents of land).

Also the court found that there is no Tharwad or Karnavar ship in existence after 1976(joint family Abolition Act). Considering the contention raised by Sri.Karunakara Panicker, he claims possession over the property through his uncle Sri.Sekhara Panicker Velayudha Panicker as per the consent deed dated 25.10.1984 which in the eyes of law is not sustainable. Because the assigner did not obtain any right which could be assigned to Karunakara Panicker as claimed by Karunakara Panicker. Further Sri.Velayudha Panicker was not in actual possession of the property which can be assigned to any one.

WP(C) NO.15294/2020

The former Settlement Officer in the light of the directions of the District Collector, Alappuzha, said above in which the case is remanded to this court conducted a site inspection and send her report to the District Collector, Alappuzha on 22.6.98 in which it was stated that at the moment the disputed land was under the possession of Balarama Panicker who resides at the vicinity of the temple.

From the above discussion it can be safely concluded that the Service Inam Land which is to be assigned is in actual possession of Balarama Panicker as the holder of land as per Section 2(c) of the said Act is the person who is in the possession of any service Inam Land or any of his successors-in-interest, the person in possession of the land holder of the purpose of the Act.

Hence the Purchase Certificate issued in favour of Sekhara Panicker on 25..1..95 is hereby set aside. The purchase price deposited by the said Karunakara Panicker is to be refunded as and when an application to that effect is made and considering the actual possession as is evidenced from the above discussion and evidenced by the enquiry report made by the former Settlement Officer it is found that Balarama Panicker, Lekshna, Manacadu Muri, Mavelikkara is entitled to the assignment of 65 cents of land in Sy.No.103/70 of Mavelikkara village in Mavelikkara Taluk of Alappuzha District under clause 10 of the Kerala Service Inam Land(Vesting and Enfranchisement) Rules 1981.

It is therefore directed that Sri.Balarama Panicker, Lekshna, Manacadu Muri, Mavelikkara will file application for the assignment of the extent of 65 cents of land comprised in WP(C) NO.15294/2020

Sy.No.103/70 of Mavelikkara village in Mavelikkara Taluk of Alappuzha District under the provisions of the Kerala Service Inam Land Act 1981.

The S.M. proceedings is disposed of accordingly."

2. Ext.P1 was challenged before the appellate

authority and the appeal was dismissed as per

Ext.P2 order. Thereafter the matter reached the

Land Board and as per Ext.P3 the Land Board also

confirmed Ext.P1 order. Thereafter the above

Sekhara Panicker Karunakara Panicker filed a writ

petition before this Court and this Court also

confirmed Exts.P1 to P3 orders. The relevant

portion of the judgment of this Court is extracted

hereunder:

"9. This Court invoking power under Article 226 of the Constitution of India need not treat the power of judicial review as of an appellate authority to decide a civil right of the parties. Whether the purchase certificate would enure to the benefit of family or not is essentially a question of civil dispute. No doubt, if any adverse finding has been made by the statutory authorities under the Act that has to be eschewed to protect the rights of others to open for any adjudication between the parties before a civil court. The settlement WP(C) NO.15294/2020

officer assigned the land taking note of the actual possession of the first respondent. This possession was on behalf of the family or not has not been considered by the settlement officer. The question whether the possession by an individual would ensure to the benefit of the family is a matter of interpretation of the relevant portions of the Act and also involves consideration of evidence. This interpretation would be warranted depend upon the issue whether the family as such would be entitled for assignment or not. These are all matters germain for consideration in appropriate civil case where a right of the family is asserted and denied. This Court is of the view that it is open for the civil court to decide whether purchase certificate would enure to benefit of the family or exclusively belongs to Balarama Panicker. So far as proceedings of the settlement officer and others are concerned, this Court is of the view that it has been solely based on the possession as on the date of enactment and not with reference to any issue relating to civil rights of the members of the family. In view of the fact that no decision has been rendered by the authorities in relation to civil disputes between the parties, this Court is of the view that there is no scope for interfering with the order.

The purchase certificate even issued in the name of co-sharer, would enure for the benefit of the family. Therefore, for that reason this Court need not unsettle the proceedings under the Act. It is made clear that ultimately the petitioner is able to establish before the civil court family is entitled for assignment, certainly the purchase certificate now issued in favour of the first respondent would also WP(C) NO.15294/2020

enure to the benefit of the family. Therefore there is no necessity to interfere with the proceedings as such by invoking public law remedy. Leaving open all the issues to be decided in the light of observation as above before the civil court, the writ petition is disposed of."

3. Thereafter the petitioner submitted an

application for assignment before the 4th

respondent. The 4th respondent issued Ext.P5 in

which it is stated that the partition deed

No.553/1106 of Sub-Registrar, Mavelikkara is

necessary for taking further action. Aggrieved by

Ext.P5 order, this writ petition is filed.

4. Heard the learned counsel for the

petitioner and the learned Government Pleader.

5. The learned counsel for the petitioner

submitted that in the light of Exts.P1 to P4, the

4th respondent has no authority to issue Ext.P5.

According to the counsel, the 4th respondent has no

authority to adjudicate again the issue already

settled as per Exts.P1 to P4.

6. The learned Government Pleader submitted

that this Court as per Ext.P4 judgment, observed WP(C) NO.15294/2020

that the assignment is subject to the result of any

civil suit pending before the civil court. The

learned Government Pleader submitted that Ext.P4

writ petition was filed by one Sekhara Panicker

Karunakara Panicker and some others and they are

not parties in this writ petition. Therefore the

learned Government Pleader submitted that the 4 th

respondent is justified in asking for the documents

from the petitioner.

7. I perused Ext.P1 to P4 orders. In Ext.P1

order, after considering the entire aspects the

Settlement Officer categorically stated that the

Balarama Panicker who is the petitioner herein can

file an application for assignment of the extent of

65 cents of land comprised in Sy.No.103/70 of

Mavelikkara Village, Mavelikkara Taluk of Alappuzha

District under the provisions of the Kerala Service

Inam Lands(Vesting and Enfranchisement) Act, 1981.

The finding of the Settlement Officer is clear and

there is no ambiguity in it. Ext.P1 is confirmed

as per Exts.P2 and P3. This Court only observed WP(C) NO.15294/2020

that, whether the purchase certificate would enure

to the benefit of family or not is an essential

question of civil dispute. This Court also

observed that so far as the proceedings of the

Settlement Officer or others are concerned, it has

been solely based on the possession as on the date

of enactment, and not with reference to any issue

relating to civil rights of the members of the

family. Therefore, this Court in Ext.P4 judgment

observed that no decision has been rendered by the

authorities in relation to civil disputes between

the parties and therefore there is no scope for

interfering with the order. It is clearly stated

in Ext.P4 judgment that the purchase certificate

even issued in the name of co-sharer, would enure

for the benefit of the family. Hence this Court

observed that, for that reason this Court need not

un-settled the proceedings under the Act. It is

also made clear in Ext.P4 that ultimately if the

petitioner in that writ petition is able to

establish before the civil court that family is WP(C) NO.15294/2020

entitled for assignment, certainly the purchase

certificate issued in favour of the 1st respondent

in that writ petition would also enure to the

benefit of the family. In the light of the above

observation, the affected parties to Exts.P1 to P3

can only approach the civil court. The 4 th

respondent need not conduct any adjudication in the

light of Exts.P1 to P4 judgments. The 4th

respondent has to consider the assignment

application subject to the result of the case, if

any, pending before the civil court. Therefore,

according to me, Ext.P5 can be set aside and the 4 th

respondent can be directed to consider the

assignment application in accordance to law.

Therefore, this writ petition can be disposed

in the following manner:

      (i)          Ext.P5 is set aside.

      (ii)         The        4th    respondent         is        directed    to

consider          the        assignment           application           of    the

petitioner in the light of the specific direction

in Exts.P1 to P4 and pass appropriate orders in it, WP(C) NO.15294/2020

as expeditiously as possible, at any rate, within

one month from the date of receipt of a copy of

this judgment.

(iii) The issue of purchase certificate will

be subject to the decision of the civil court, if

any suit or other proceedings is pending before the

civil court as on the date.

Sd/-

P.V.KUNHIKRISHNAN JUDGE DM WP(C) NO.15294/2020

APPENDIX OF WP(C) 15294/2020