K.K. Thankappan vs District Collector
2021 Latest Caselaw 19038 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    MONDAY, THE 13TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943
                        WP(C) NO. 11719 OF 2016
PETITIONER:

          K.K. THANKAPPAN
          PLACKKIPARAMBIL HOUSE, VAGAMON,
          VELLIKULAM.P.O.,KOTTAYAM DISTRICT.

          BY ADVS.
          SRI.SHAJI THOMAS
          SRI.BINU PAUL
          SRI.B.RAJESH KOTTAYAM



RESPONDENTS:

    1     DISTRICT COLLECTOR
          KOTTAYAM-686003.

    2     TAHSILDAR MEENACHIL
          PALA.P.O - 686 577.

    3     SUPERINTENDENT OF SURVEY
          MEENACHIL, PALA.P.O - 686 577.

    4     VILLAGE OFFICER
          TEEKOY - 686 580.

          BY ADV GOVERNMENT PLEADER



          SMT.VIDYA KURIAKOSE, GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 11719 OF 2016
                             2

            P.V.KUNHIKRISHNAN, J.
          ========================
           WP(C) NO. 11719 OF 2016
         ========================
  Dated this the 13th day of September,2021

                          JUDGMENT

The petitioner is a resident of Teekoy Grama

Panchayath. According to the petitioner, his annual

income is only Rs.3600/-. The petitioner claims that he

is included in the Below Poverty Line (BPL) list. The

petitioner stated in the writ petition that he is in

possession and enjoyment of 1 acre 90 cents (76.89

ares) of land lying in Sy.No.298/1 in Block No.62/962

(old Sy.No.2321) of Teekoy Village. The petitioner

submitted an application for assignment of the above

76.89 ares of land before the District Collector,

Kottayam. The District Collector forwarded the

petitioner's application for assignment of land to Taluk

Office, Meenachil for enquiry and report. The Taluk

office opened a file as L.A.313/93/B2. A location sketch

as well as Mahazar of property in possession and WP(C) NO. 11719 OF 2016

enjoyment was also prepared by the Village Officer,

Teekoy. The petitioner submits that, the property in

possession and enjoyment of him was measured on

08.12.1993 and prepared a plan by the Village Officer.

In the Mahazar it is stated that property is lying about

14 km towards east from the Village Office, Teekoy

lying at Karikkad, on the right hand side of Erattupetta

Vagamon PWD road and that the extent of the land is

about 1 acre 90 cents, that the eastern boundary of the

property is separated by a "Valari Thodu" and the

southern and western boundary is the property of

Kurishumala Ashramam and that the northern

boundary is public road. It is also stated that the

property in possession of the petitioner is cultivated

with coffee, pepper and tea plants. Ext.P1 is the

photocopy of the Mahazar of the property in possession

and enjoyment of the petitioner prepared by the Village

Officer. Accordingly, the Tahsildar issued a

notification inviting objections if any from the public WP(C) NO. 11719 OF 2016

against the assignment of 1 acre 90 cents of land to the

petitioner. Ext.P2 is the notice. Thereafter, the

Tahsildar Meenachil submitted the land assignment file

to the District Collector, Kottayam by letter dated

16.02.1996 stating that the property in possession of

the petitioner can be assigned to the petitioner and

that the said property is a Tharisu Puramboke land as

per the Village records. Ext.P3 is the letter dated

16.02.1996 of the Tahsildar, Meenachil to the 1 st

respondent. Ext.P4 is the sketch Mahazar prepared by

the Village Offcer, Teekoy on 18.01.1996. Ext.P5 is the

proceedings dated 25.06.1996 of the District Collector,

Kottayam whereby the District Collector has approved

for the inclusion of the property in the list of

properties for assignment of land. Ext.P6 is the

pattayam issued by the Tahsildar for 1 acre 90 cents of

land lying in Sy.No.298/1 of Teekoy Village. Ext.P7 is

the schedule of the property assigned to the petitioner.

As per the schedule the said land is included in Block WP(C) NO. 11719 OF 2016

No.62 in Re.Sy.No.298 of Teekoy Village in Meenachil

Taluk, Kottayam. Thus, according to the petitioner he

became the absolute title holder of the property which

was lying in Sy.No.298/1 in Block No.62/962 (old

Sy.No.2321) of Teekoy Village and he is in absolute

possession and enjoyment of the said property with the

four boundaries specified in the sketch Mahazars

prepared by the Village Officer, Teekoy. Ext.P8 series

are the land receipts showing that the petitioner is

paying tax for the property covered by Ext.P6 pattayam

till 2016. Ext.P9 is the possession certificate dated

14.01.2009 issued by the Village Officer, Teekoy in

respect of 1 acre 90 cents of land. Though the

petitioner became the title holder of the land on

assignment of the land by the Tahsildar and the

petitioner is in possession and enjoyment of the said

land for a long number of years, it is the case of the

petitioner that he was obstructed by the 4 th respondent

from constructing a small house in his land. Therefore, WP(C) NO. 11719 OF 2016

the petitioner submitted application before the 1 st

respondent for fixing and demarcating the four

boundaries of the property assigned to him as evident

by Ext.P10 application. However, the 2 nd respondent or

officers under him did not take any steps to measure

the property and fix the four boundaries of the

property for which pattayam was issued by the 2 nd

respondent as evident by Ext.P6. Therefore, the

petitioner submitted an application under the right to

information Act seeking information regarding the title,

possession etc. of the property lying in Block No.62 in

Re.Sy No.298/1. Ext.P11 is the application. As per

Ext.P12 reply it is informed that the property is in

possession of the petitioner as per the Village records.

Thereafter, the petitioner submitted an application on

30.12.2015 before the 4th respondent for issuance of a

ownership certificate as evident by Ext.P13. The 4 th

respondent by letter dated 10.02.2016 informed the

petitioner that the said property is not in possession of WP(C) NO. 11719 OF 2016

the petitioner and therefore, the possession certificate

cannot be issued. Aggrieved by Ext.P14, this writ

petition was filed. Subsequently a statement was filed

by the respondent and thereafter, the writ petition was

amended and the prayer in the amended writ petition

is extracted hereunder:

"i) Issue a Writ of Mandamus or any other writ, order or direction commanding the respondents 1,2 and 4 to correct the mistake in the survey number that crept in the land assignment proceedings initiated by the 2 nd respondent in file No.LA.313/93/B2 (in Exhibit P3 report dated 16.02.1996 of the Tahsildar, Exhibit P5 order dated 25.06.1996 of the District Collector, Exhibit P6 pattayam and in Exhibit P7 Form for assignment of land etc.) and to correct the survey No.298 as Re-survey No.405/2 and Re-survey No.244 in Block No.62 in Teekoy village.

ii) issue a writ of Mandamus or any other writ, order or direction commanding the respondents 2 to 4 to fix and demarcate the four boundaries of the property lying in Block No.62 in Re-survey No. 405/2 and Re-survey No.244 in Teekoy village as per Exhibit P3 report dated 16.02.1996 of the 2nd respondent.

iii) issue any other writ, order or direction that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and to allow this Writ Petition.

Alternatively

iv) Issue a writ of Mandamus or any other writ, order or direction commanding the WP(C) NO. 11719 OF 2016

respondents to assign 0.76.89 hectors of land lying in Re-survey No.405/2 and in Re-survey No.244 in Block No.62 in Teekoy Village to the petitioner on the basis of Exhibit P1 mahazar, Exhibit P3 report dated 16.02.1996 of the 2nd respondent, Exhibit P5 order dated 25.06.1996 of the 1st respondent and issue pattayam to the petitioner in respect of the said land without any further delay and to issue possession as well as ownership certificate to the petitioner."

2. Heard the learned counsel for the petitioner

and the learned Government Pleader.

3. The counsel for the petitioner reiterated his

contention in the writ petition. The counsel for the

petitioner takes me through the documents produced

in the writ petition and submitted that the petitioner is

in possession of the property as per records and the

property in possession of the petitioner is situated in

Re.Sy.No.298/1. The counsel submitted that the

contention of the respondent that property in

possession of the petitioner is situated in Re.Sy

No.405/2 and Re.Sy No.244 is not correct in the light of

the documentary evidence produced by the respondent.

The Government Pleader takes me through the counter WP(C) NO. 11719 OF 2016

filed by the 1st respondent. It will be better to extract

the relevant portion of the counter.

But on site inspection of the property conducted recently, it is learnt that the property is not in the possession of Sri. K.K. Thankappan and also as there exist no clear boundary Re-survey Sketch of Survey No.298/1 in which the Pattayam issued is not available. The boundaries of property described in Pattayam Mahazar and boundaries of the property in Resurvey No.298/1 are not identical. On eastern side, there is no 'Valari thodu' and in northern side, there is no road as stated in Pattayam Mahazar. The road is seen only in western side. Hence, it seems that the Pattayam issued is not for the land in possession of the petitioner. On site inspection it is also learnt that the property possessed by the petitioner is in Resurvey No.405/2 and Resurvey No.244 in Block No.62 in Teekoy Village. It is also submitted that the property involved in Resurvey Nos.405/2 and 244 are excess land which are Government land. Even though the petitioner has got title of the property in Resurvey No.298/1 he has no possession in that property. On 15.07.2016, the Village Officer visited the place and prepared a rough sketch and it is countersigned by the Tahsildar. True copy of the rough sketch is produced herewith WP(C) NO. 11719 OF 2016

and may be marked as Annexure R1(a)." The Government Pleader submitted that the property

now in possession of the petitioner is excess land

owned by the Government.

4. I considered the contentions raised by the

petitioner and the Government Pleader. A perusal of

the documents produced by the petitioner as evident by

Exts.P1 to P6 it is clear that the petitioner was

assigned 76.89 ares of property in Re.SyNo.298/1 of

Block 62 of Teekoy Village in Meenachil Taluk in

Kottayam district. Ext.P8 series are the land tax

receipts showing that the petitioner paid tax to the

above land. Ext. P9 is the possession certificate issued

by the Village Officer on 14.01.2009. Now, when the

petitioner wants to construct a building he submitted

an application and as per Ext.P14 the same is rejected

stating that the petitioner is not in possession of the

land in Sy.No.298/1 in Block No.62 of Teekoy Village.

It will be better to extract the contents in Ext.P14. WP(C) NO. 11719 OF 2016

"From State Public Information Officer & Village Officer Teekoy, Pin- 686 580

To ശ".ക$.ക$. തങപൻ, പ*ക,പറമ,ൽ, വ*ഗമൺ P.O.

സർ, വ,ഷയ:: വ,വര*വ$*ശന,യമ:-2005-സ:ബ; സചന: ത*ങളകE 15.1.16 കG അപJക.

-

സചന $*ണ$. ത"പക*യ, വ,പMജ,ൽ പO*കP 62 ൽ

സർകQ 298/1 ൽകപട 0.76.89 കVകർ സG: ത*ങളകE ക$വശമ,M*തത,ന*ൽ E, വസവ,നP ഉEമസ*വ$*ശ സർട,ഫ,കറPനൽ$*ൻ ന,ർവ*Vമ,Mഎനള വ,വര: അറ,യ,ചക$*ളന .

വ,ശeസതപയ*കE , ഒപP State Public Information Officer & Village Officer Teekoy, Pin- 686 580

E, വ,ഷയത,ൽ എകhങ,ല:

ആപകJമള Jക:മ"നച,ൽ തVസ,ൽദ*ർ മമ*ക$ അപ"ൽനൽ$*വനത*ണP ."

.

5. If we accept Ext.P14, we have to reject WP(C) NO. 11719 OF 2016

Exts.P1 to P6 documents issued by the respondents.

From a perusal of Exts.P1 to P6, it is clear that the

assignment of land is in Sy.No.298/1 in Block No.62 of

Teekoy Village. Even possession certificate is issued by

the Village Officer as evident by Ext.P9. Ext.P8 series

will show that the petitioner was paying land tax for

the property till 2016. Ext.P6 is the pattayam which

also shows that the property of the petitioner is

situated in Sy.No.298/1. In such circumstances,

according to me Ext.P14 will not stand. Probably,

there may be some confusion regarding the survey

number. Admittedly, the petitioner was in possession

of certain items of property. It is also a fact that the

petitioner approached the authority for getting

assignment. It is also an admitted fact that the

authorities assigned the land after following all the

procedures. In such circumstances, in 2016 the Village

Officer erred in issuing Ext.P14 saying that the

petitioner is not in possession of any land in WP(C) NO. 11719 OF 2016

Sy.No.298/1. According to me this is a matter to be

looked into by the 2nd respondent. If there is any

mistake in the survey number, appropriate orders

should be passed by the 2nd respondent, after following

the procedure established by law. In the light of

Exts.P1 to P7 and Ext.P8 tax receipts, it may not be

justified to deny the enjoyment of the property by the

petitioner at this distance of time. According to me

Ext.P14 can be set aside and 2nd respondent can be

directed to consider the entire matter afresh after

giving an opportunity of hearing to the petitioner.

Therefore, this writ petition is allowed in the

following manner:

(a) Ext.P14 is set aside.

(b) Second respondent is directed to consider the

grievance of the petitioner narrated in this writ petition

after giving an opportunity of hearing to the petitioner

as expeditiously as possible, at any rate, within two

months from the date of receipt of a copy of this WP(C) NO. 11719 OF 2016

judgment, in the light of the observations in this

judgment.

(c) If there is any mistake in the survey number

mentioned in Exts.P1 to P6, the 2 nd respondent will

pass appropriate orders to make correction in it in

accordance to law.

(d) All the contentions of the petitioner in this writ

petition are left open and the petitioner is free to raise

all those contentions before the 2nd respondent.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

scs WP(C) NO. 11719 OF 2016

APPENDIX OF WP(C) 11719/2016

PETITIONER EXHIBITS

EXHIBIT P1: TRUE PHOTOCOPY OF THE MAHAZAR OF THE PROPERTY IN POSSESSION AND ENJOYMENT OF THE PETITIONER PREPARED BY THE VILLAGE OFFICER.

EXHIBIT P2: TRUE PHOTOCOPY OF THE NOTICE ISSUED BY THE TAHSILDAR DATED 20.1.1996.

EXHIBIT P3: TRUE PHOTOCOPY OF THE LETTER DATED 16.02.1996 OF THE TAHSILDAR, MEENACHIL TO THE 1ST RESPONDENT.

EXHIBIT P4: TRUE PHOTOCOPY OF THE SKETCH MAHAZAR PREPARED BY THE VILLAGE OFFICER, TEEKOY BY MEASURING THE PROPERTY ON 18.1.1996.

EXHIBIT P5: TRUE PHOTOCOPY OF THE PROCEEDINGS DATED 25.6.1996 OF THE DISTRICT COLLECTOR, KOTTAYAM.

EXHIBIT P6: TRUE PHOTOCOPY OF THE PATTAYAM ISSUED BY THE TAHSILDAR FOR 1 ACRE 90 CENTS OF LAND LYING IN SY.NO.298 OF TEEKOY VILLAGE.

EXHIBIT P7: THE SCHEDULE OF PROPERTY ASSIGNED TO THE PETITIONER.

EXHIBIT P8: TRUE PHOTOCOPIES OF LAND TAX RECEIPT DATED 30.07.1996, 19.09.2010, 19.04.2011, 30.07.2012, 27.06.2013, 18.08.2014 AND 01.01.2016.

EXHIBIT P9: TRUE PHOTOCOPY OF THE POSSESSION CERTIFICATE DATED 14.01.2009 ISSUED BY THE VILLAGE OFFICER, TEEKOY IN RESPECT OF 1 ACRE 90 CENTS OF LAND (76.89 ARES)

EXHIBIT P10: TRUE PHOTOCOPY OF THE APPLICATION DATED WP(C) NO. 11719 OF 2016

16.6.2015.

EXHIBIT P11: TRUE PHOTOCOPY OF THE APPLICATION DATED 30.12.2011 SUBMITTED BY THE PETITIONER.

EXHIBIT P12: TRUE PHOTOCOPY OF THE REPLY DATED 25.1.2012 FURNISHED BY THE VILLAGE OFFICER, TEEKOY.

EXHIBIT P13: TRUE PHOTOCOPY OF THE APPLICATION DATED 30.12.2015 SUBMITTED ON 15.01.2016.

EXHIBIT P14: TRUE PHOTOCOPY OF THE COMMUNICATION DATED 10.02.2016 FROM THE OFFICE OF THE 4TH RESPONDENT.