A.D.Johnson vs State Of Kerala
2021 Latest Caselaw 15731 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR. JUSTICE GOPINATH P.
   FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
                     WP(C) NO. 15664 OF 2015
PETITIONER:

         A.D.JOHNSON
         AGED 65 YEARS
         S/O.DEVASSIA, RESIDING AT AREEKKAL HOUSE,
         SOORYANELLI P.O., PIN 685618.

         BY ADV SRI.JOHN JOSEPH(ROY)


RESPONDENTS:

    1    STATE OF KERALA
         REPRESENTED BY THE SECRETARY,REVENUE (R)
         DEPARTMENT, SECRETARIAT,
         THIRUVANANTHAPURAM-695 001.
    2    THE DISTRICT COLLECTOR
         IDUKKI DISTRICT, COLLECTORATE, KUYILIMALA,
         IDUKKI-685 602.
    3    THE PROJECT OFFICER IN-CHARGE
         INTEGRATED SCHEDULED TRIBU DEVELOPMENT PROJECT
         OFFICE, IDUKKI, MINI CIVIL STATION, NEW BLOCK-1ST
         FLOOR, THODUPUZHA, PIN 685584.
    4    THE TAHSILDAR UDUMBANCHOLA TALUK
         UDUMBANCHOLA, IDUKKI DISTRICT-685 554.
         BY GOVERNMENT PLEADER SMT. REKHA C. NAIR

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C)No.15664/2015                        2

                                 JUDGMENT

The petitioner is a member of a Scheduled Tribe Community. The

Government of Kerala had promulgated a scheme for providing financial

assistance to 'landless' members of Scheduled Tribe communities to

purchase land in terms of conditions stipulated in Government Orders

dated 3.9.2013 and 23.10.2013 (hereinafter referred to as 'the scheme').

The petitioner identified a plot of land which he intended to purchase in

terms of the scheme. His name also finds a place in the list of applicants

being considered for grant of benefits under the scheme. It is the case of

the petitioner that he had entered into Ext.P2 agreement for the purchase

of land identified by him for purchase under the scheme.

2. Through Ext.P4, the petitioner was called upon to explain as to

why his application for benefits under the scheme should not be rejected as

he was found to have purposefully misled the authorities in as much as he

was not a landless person to whom alone the scheme could be extended. It

was alleged that he had land in a place called 'Maniyarankudy' in Idukki

Village. It was also alleged that the petitioner had earlier availed financial

benefit from the Government for putting up a house in the land at

'Maniyarankudy'. Ext.P6 report dated 7.8.2014 of the Village Officer,

Idukki Village showed that the petitioner had in possession 1.5 acres of

land, for which he had no 'pattayam' and which land he had sold about two

years prior to the date of Ext.P.6.

3. Through Ext.P7, the petitioner had represented to the District

Collector, Idukki District that the land at 'Maniyarankudy' belongs to his

brother, who had permitted him to put up a residence therein and that he

had sold the land to meet the expenses of the marriage of his daughter.

Ext.P8 certificate issued by the Village Officer, Idukki, on 14.3.2003 states

that the petitioner has no land at 'Maniyarankudy' in Idukki Village. To the

same effect is Ext.P8(a) certificate issued by the Tribal Extension Officer,

Idukki. Through Ext.P11 communication issued by the District Collector,

Idukki on 2.12.2014, the petitioner was informed that he was not eligible to

purchase land under the scheme. Ext.P11 also enclosed the report of the

Project Officer of the Integrated Tribal Development Project, Idukki, dated

28.8.2014, which was the basis for the finding that the petitioner is not

entitled to the benefits of the scheme. The petitioner has, therefore,

approached this Court seeking to quash Ext.P11 and for a direction to the

respondents to consider him as eligible for the benefit of the scheme.

4. The respondents have filed a counter-affidavit dated 6.6.2015

and an additional counter affidavit dated 23.11.2020. The counter-affidavit

dated 6.6.2015 is categoric in asserting that the petitioner was not entitled

to the benefit of the scheme since he was not a 'landless' member of a

Scheduled Tribe Community. It is also stated that the petitioner had

availed financial assistance for the construction of a house from the

Scheduled Tribe Development Department, on the land under his

possession at 'Maniyarankudy' in Idukki Village. It is stated that he has

sold out only a portion of the property at 'Maniyarankudi' and had moved

to 'Chinnakkanal' Village. It is also stated that the petitioner had availed

several benefits from the Scheduled Tribe Development Department, as a

resident of Idukki Village and had fraudulently obtained a certificate from

the Village Officer of 'Chinnakkanal' Village that he was a landless person

belonging to a Schedule Tribe Community. It is also pointed out that in

terms of the Kerala Restriction on Transfer by and Restoration of Lands to

Scheduled Tribes Act, 1999, the sale of land by the petitioner is invalid and

the petitioner cannot be afforded the status of a landless person for availing

benefits under the Scheme.

5. The petitioner filed a reply affidavit in response to the

averments in the counter-affidavit dated 6.6.2015 where he states that the

land at 'Maniyarankudy' belonged to his brother and that he had availed

financial assistance to construct a house on the land belonging to his

brother. He also states that the land at 'Maniyarankudy' in the possession

of his brother was not a land in respect of which either he or his brother

had been issued with any 'pattayam'. He also reiterates that Exts.P8 and

Ext.P8(a) cannot be brushed aside in any manner. He also relies on

Ext.P13 circular, which states that members of the Scheduled Tribe

Communities, who own upto 10 cents of land will be treated as 'landless' for

the purposes of extending the benefits of the scheme and therefore, that

even if the house in 'Maniyarankudy' is taken into consideration, he will be

entitled to the benefits of the scheme. He also states that several ineligible

persons, who have earlier sold their lands, have been given the benefits

under the scheme. He also states that the provisions of the Restriction on

Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999, has

no application as he has never sold any land.

6. In the additional counter affidavit dated 30.11.2020 sworn to

by the District Collector, Idukki, it is submitted that the petitioner had been

in possession of almost 1.5 acres of 'non-patta' land at 'Maniyarankudy' in

Idukki Village and this was revealed during the enquiry. A certificate dated

19.3.2008 issued by the Tribal Extension Officer, Idukki has been produced

as Ext.R2(a) to show that the petitioner had availed financial assistance for

the construction of a house at 'Maniyarankudy'. It is reiterated that the

petitioner is still in possession of some land at 'Maniyarankudy', after

having sold some portion of the land together with the house constructed

thereon and that he was also availing the benefits from the SC/ST

Development Department as a resident of Idukki Village till 2004-2005.

Reference is also made to the report of the Village Officer dated 7.8.2014

[Ext.P6 - also produced as Ext.R2(c)] to establish that the petitioner cannot

be treated as a landless person for extending the benefit of the scheme.

Reference is also made to Ext.R2(d) which is a statement given by the

petitioner himself before the 'Empowered Committee' constituted to

consider the applications under the scheme, wherein he clearly admitted

that the property at 'Maniyarankudy' was sold to one 'Sony Manappurath'

for consideration of Rs.1.80 lakhs after which he had migrated to

Chinnakkanal Village.

6. The petitioner has filed a reply to the additional counter

affidavit again reiterating the submission regarding the land at

'Maniyarankudy', availing of the financial assistance to construct a house

etc. and also referring Ext.P16 and Ext.P16(a) to contend that he had never

owned or possessed any land at 'Maniyarankudy'. Ext.P16 is an application

made by the son of the petitioner under the Right to Information Act, to the

Village Officer, Idukki seeking details of land, if any, under ownership

and/or possession by his father, the petitioner herein. Ext.P16(a) is the

reply given under the Right to Information Act, which states that as per the

records available with the Village Officer, the petitioner, Sri. A.D. Johnson

does not have any land with 'pattayam' at 'Maniyarankudy' in Idukki

Village and further that there is no register regarding land in possession of

any person other than by way of 'pattayam'.

8. Having heard the learned counsel for the petitioner and the

learned Senior Government Pleader at length, I am of the view that the only

question to be considered is whether the petitioner could be treated as a

'landless person' for availing the benefits of the scheme. It is not disputed

that the scheme was intended only for the benefit of persons belonging to

the Scheduled Tribe Community, who do not own or possess any land.

Ext.P13 Circular applies only if a person in question has or had less than 10

cents of land in his possession. Upon reading of Ext.R2(d) and the

averments in the additional counter affidavit dated 23.11.2020, I am of the

opinion that the petitioner is not entitled to the benefit of Ext.P13 for the

reason that he admits that he had sold 20 cents of land together with a

house to one 'Sony Manappurath' for a sum of Rs.1.80 lakhs. It is a

common case that the land at 'Maniyarankudy' was not a land in respect of

which any 'pattayam' had been issued to any person and therefore, there

will be no record of any sale by the petitioner. Therefore, nothing turns on

Ext.P16(a). As is evident from several cases filed before this Court in

respect of lands in Munnar- Idukki District, several persons are holding

and enjoying the lands without any title documents and these lands are also

sold and purchased on a regular basis, though the persons in occupation

have no semblance of title. [See the pleadings and judgment in

W.P.(C)No.3019/2015 disposed of by me on 18.01.2021 and the pleadings

in R.P.No.163/2021 filed in that writ petition]. Though the learned counsel

for the petitioner would submit that Ext.R2(d) statement was given under

duress and coercion, I note from Ext.P7 representation submitted by the

petitioner before the District Collector that he had admitted therein that he

had sold the land held by him at 'Maniyarankudy' for meeting the wedding

expenses of his daughter. Therefore it is extremely difficult to accept the

case of the petitioner that Ext.R2(d) was given under coercion and duress.

The petitioner also does not dispute the fact that he had availed financial

assistance for putting up a house at 'Maniyarankudy'. The petitioner was,

therefore, clearly not entitled to the benefits of the scheme and he had

falsely represented himself to be a 'landless' member of a Scheduled Tribe

Community. His application for benefits of the scheme was, therefore,

rightly rejected by Ext.P11. The writ petition fails and it is accordingly

dismissed. sd/-

GOPINATH P.

JUDGE acd

APPENDIX OF WP(C) 15664/2015

PETITIONER EXHIBITS

EXHIBIT-P1: COPY OF COMMUNICATION NO.K6955/13 DATED 27.5.2014 OF THE 3RD RESPONDENT, ADDRESSED TO THE 4TH RESPONDENT.

EXHIBIT-P2: COPY OF SALE AGREEMENT DATED 18.1.2014 EXECUTED BY THE PETITIONER AS BUYER.

EXHIBIT-P3: COPY OF COMMUNICATION NO.K-6955/2013(1) DATED 11.3.2014 OF THE 3RD RESPONDENT.

EXHIBIT-P4: COPY OF COMMUNICATION NO.K/6955/13(1) DATED 13.8.2014.

EXHIBIT-P5: COPY OF COMMUNICATION NO.C8.21046-14 DATED 20.8.2014 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT TO THE PETITIONER.

EXHIBIT-P6: COPY OF REPORT DATED 7.8.2014 OF THE VILLAGE OFFICER, IDUKKI.

EXHIBIT-P7: COPY OF REPRESENTATION DATED 29.9.2014 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DISTRICT COLLECTOR.

EXHIBIT-P8: COPY OF CERTIFICATE NO.724/03(1) DATED 14.3.2003 ISSUED BY THE VILLAGE OFFICER, IDUKKI.

EXHIBIT-P8(A): COPY OF CERTIFICATE DATED 30.12.2010 ISSUED BY THE TRIBAL EXTENSION OFFICER.

EXHIBIT-P9: COPY OF LETTER DATED 28.8.2014 SUBMITTED BY THE PETITIONER.

EXHIBIT-P10: PHOTOCOPY OF G.O.(MS) NO.84/13SC/ST DATED 23.10.2013.

EXHIBIT-P10(A): COPY OF CERTIFICATE NO.791/2013 DATED 26.11.2013 ISSUED BY THE VILLAGE OFFICER, CHINNAKANAL.

EXHIBIT-P11: COPY OF COMMUNICATION NO.C8-21046/14 DATED 2.12.2014.

EXHIBIT-P12: COPY OF REPORT NO.K/6955/2013 DATED 28.8.2014 OF THE 3RD RESPONDENT.