Kerala High Court
Bija Sony vs Revenue Divisional Officer on 4 February, 2021
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.15154 OF 2020(T)
PETITIONER:
BIJA SONY
AGED 42 YEARS
W/O. SONY J.PADAYATTIL, PADAYATTIL (H), MUKKUTTUKARA,
NETTISSERY, THRISSUR AND PRESENTLY RESIDING AT
PAAYATTIL (H), SRM ROAD, ERNAKULAM NORTH,
ERNAKULAM-682 018
BY ADV. SRI.C.A.JOY
RESPONDENTS:
1 REVENUE DIVISIONAL OFFICER
OFFICE OF RDO, KANHANGAD, KASARGOD-671 315
2 THE TAHASILDAR
HOSDURG TALUK, HOSDURG, KASARGOD-671 312
3 VILLAGE OFFICER,
AJANUR, HOSDURG, KASARGOD-671 531
SMT.MABLE C KURIEN, GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.15154 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.3541/2008 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.K.Susheela on 16.9.1988 by order issued by the Special
Tahsildar (LA), Hosdurg and patta was issued to her under Rule 9 of the
Rules. The original assignee had assigned the property to Sri. M.V.Aravindan
by a sale deed executed in the year 1995. It was from the aforesaid
Aravindan that the petitioner had purchased the property in the year 2008.
Thereafter, he has remitted tax in his name and has effected mutation as is
evident from Ext.P2. According to the petitioner, 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.
According to the petitioner, 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 Exts.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 Smt. K.K.Susheela 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 should 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, she 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.
8. In that view of the matter, I am unable to sustain Exts.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 OF WP(C) 15154/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE SALE DEED NO
3541/2008 OF SRO HOSDURG
EXHIBIT P2 THE TRUE COPY OF THE LAND RECEIPT FOR
THE YEAR 2019-2020 DATED 18.11.2019
EXHIBIT P3 THE PHOTOCOPY OF THE PATTAYAM NO.LA
24/82/AJANUR, HOSDURG TALUK ISSUED BY
SPECIAL TAHSILDAR (LA) HOSDURG
EXHIBIT P4 THE TRUE COPY OF THE SALE DEED
NO.3565/95 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, KASARGOD OBTAINED
UNDER THE RTI ACT
EXHIBIT P9 A TRUE COPY OF THE ENCUMBRANCE
CERTIFICATE OF THE PROPERTY OWNED BY THE
PETITIONER
RESPONDENTS EXHIBITS:
EXHIBIT R1A THE TRUE COPY OF ASSIGNMENT ORDER ISSUED
IN FAVOUR OF SMT.K.SUSHEELA
