Jayakumar Menon vs Revenue Divisional Officer
2021 Latest Caselaw 4066 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                       WP(C).No.15186 OF 2020(W)


PETITIONER/S:

                JAYAKUMAR MENON,
                AGED 65 YEARS,
                S/O. MADHAVA MENON, MELANKOT,
                BELLA, HOSDURG, KASARAGOD-671 531.

                BY ADV. SRI.C.A.JOY

RESPONDENTS :

      1         REVENUE DIVISIONAL OFFICER,
                OFFICE OF RDO, KANHANGAD,
                KASARGOD-671 315.

      2         THE TAHSILDAR,
                HOSDURG TALUK, HOSDURG,KASARGOD-671 312.

      3         VILLAGE OFFICER,
                AJANUR,HOSDURG, KASARGOD-671 531.

                R1-R3 BY SMT. MABLE C. KURIAN, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD           ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.15186 OF 2020               2




                                JUDGMENT

The Tahsildar, Hosdurg Taluk, the 2nd respondent herein, invoked

powers under Rule 8(2) of the Land Assignment Rules, 1964 ('the Rules'

for short) and cancelled the registry of a piece of land purchased by the

petitioner on the strength of Ext.P1 sale deed vide No.3119/2011 of the

Hosdurg SRO. The assignment was cancelled on the ground that the

original assignee or his successor-in-interest had never put up residence or

had cultivated the property within the statutory period of one year from

the date of assignment.

2. The petitioner states that the property was originally assigned

to a certain K.Mohanan on 29.7.1988 by order issued by the Special

Tahsildar (LA) Hosdurg and patta was issued to him under Rule 9 of the

Rules. The original assignee had assigned the property to Sri.

O.M.Alexander by a sale deed executed in the year 2011. It was from the

aforesaid O.M.Alexander that the petitioner had purchased the property in

the year 2011. Thereafter, he has remitted tax in his name and has

effected mutation as is evident from Ext.P3. The petitioner states that the

2nd respondent initiated proceedings under Rule 8(2) of the Rules and

proceeded to cancel the registry without notice to the petitioner. He would

contend that the proviso to Rule 8(3) mandates that before cancellation of

registry, the party or parties affected shall be afforded an opportunity of

being heard. The petitioner states that the above mandate was not

honoured and he was not put on notice. In the said circumstances, he

mounted a challenge before the appellate authority under Rule 21 of the

Rules. There was some delay in filing the appeal as the petitioner received

information of the cancellation of the order only when he attempted to

remit land tax. His appeal was rejected by the appellate authority on the

ground of delay and on account of the failure of the petitioner to produce

the original order. According to the petitioner, the appellate authority failed

to note that the procedure contemplated under the Rules was not followed

and the petitioner, though an interested party, was not put on notice. It is

in the afore circumstances that the petitioner has approached this Court

seeking to quash Ext.P5 and P7 and also for issuance of directions to

consider the matter afresh.

3. I have heard Sri.C.A. Joy, the learned counsel appearing for

the petitioner and Smt. Mable C. Kurian, the learned Government Pleader.

4. Sri. C.A.Joy, the learned counsel appearing for the petitioner,

contended that the land assigned to the original assignee is heritable and

assignable. The original assignment was in the year 1988, but the

cancellation of registry was carried out in 2019 after more than three

decades. The rules mandate that the affected person be granted an

opportunity of being heard. In the case on hand, no such notice was

issued by the 2nd respondent. The learned counsel would also refer to

Ext.P8 minutes of meeting dated 15.10.2019 obtained by the petitioner

under the Right to Information Act and he would contend that the District

Collector had given specific instructions to the revenue officers not to issue

notice to the present occupiers. According to the learned counsel, this

would clearly be violative of the provisions of the Rules and a clear case of

violation of the principles of natural justice.

5. Smt. Mable C. Kurian sought to sustain the order. It is

contended that the original assignees did not occupy the property within a

period of one year or any time later. A report was called for and it was

after ascertaining the actual facts that the assignment was cancelled. It is

further contended that the original assignee could not have assigned the

land within a period of ten years and if there is any violation, the Tahsildar

could have initiated appropriate action.

6. I have considered the submissions advanced. The contentions

raised revolves around Rule 8(2) and (3) of the Kerala Land Assignment

Rules, 1964.

8. Conditions of assignment on registry:-

(I) Lands, granted on registry shall be heritable but not alienable for a period of twenty-five years from the date of registry.

Xxxx xxxxx

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:

xxxxx

(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. 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 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. (emphasis supplied)

xxx xxxx

7. The registry was cancelled by the 2nd respondent on the

ground that the original assignee or a member of his family or his

successor in interest did not reside or cultivate the land within a period of

one year from the date of receipt of patta. It is apparent that the original

assignee had assigned the property to a third person and thereafter, the

same was purchased by the petitioner herein. As the petitioner is presently

occupying the property on the strength of a registered deed, he would

certainly fall within the category of a party affected by the order. The

minutes of the meeting held on 15.10.2019, discloses that the District

Collector had given instructions to the revenue authorities not to issue

notice to the occupants. The failure to grant an opportunity to the party

who is affected would clearly be violative of the Rules and the principles of

natural justice.

In that view of the matter, I am unable to sustain Ext.P5 and P7

orders. The above orders are quashed. I direct the 3rd respondent to issue

notice to the petitioner herein and pass orders afresh as per procedure and

in consonance with law, after affording the petitioner and other affected

parties, if any, an opportunity of being heard.

This Writ petition is disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V

JUDGE NS

APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE SALE DEED NO.3119/2011 OF SRO, HOSDURG.

EXHIBIT P2 THE TRUE COPY OF THE LAND TAX RECEIPT FOR THE YEAR 2019-2020 DATED 26.11.2019.

 EXHIBIT P3    THE PHOTOCOPY OF THE PATTAYAM
               NO.LA24/82/AJANUR, HOSDURG TALUK ISSUED BY
               SPECIAL TAHDILDAR (LA), HOSDURG.


 EXHIBIT P4    THE TRUE COPY OF THE SALE DEED NO.2637/2011 OF
               SRO, HOSDURG.


 EXHIBIT P5    A TRUE COPY OF THE ORDER NO.31941/18/J5 DATED
               31.10.2019 ISSUED BY THE 2ND RESPONDENT.


 EXHIBIT P6    THE TRUE COPY OF THE APPEAL MEMORANDUM DATED
               22.06.2020.


 EXHIBIT P7    THE TRUE COPY OF THE ORDER DATED 09.07.2020
               ISSUED BY THE 1ST RESPONDENT.

 EXHIBIT P8    THE TRUE COPY OF THE MINUTES OF THE MEETING

HELD ON 15.10.2019 BY THE DISTRICT COLLECTOR, KASARAGOD OBTAINED UNDER THE RTI ACT.

EXHIBIT P9 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE OF THE PROPERTY OWNED BY THE PETITIONER.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1(a) THE TRUE COPY ASSIGNMENT ORDER ISSUED IN FAVOUR OF SRI.K.MOHANAN.

/TRUE COPY/

P.A. TO JUDGE