Kerala High Court
Sheela Kurian vs State Of Kerala on 20 May, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
WP(C) NO. 35291 OF 2019
PETITIONERS:
1 SHEELA KURIAN
AGED 63 YEARS, W/O.M.A.KURIAN,
MAZHUVANCHERIPARAMBATH,
MANGALATH ROAD,
NORTH PARAVUR-683513.
2 MATHEW KURIAN
AGED 37 YEARS, S/O.M.A.KURIAN,
MAZHUVANCHERIPARAMBATH,
MANGALATH ROAD,
NORTH PARAVUR-683513.
BY ADVS.
C.S.AJITH PRAKASH
SRI.T.K.DEVARAJAN
SRI.FRANKLIN ARACKAL
SRI.M.B.SOORI
SRI.ASWIN T SURESH
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
REVENUE DEPARTMENT,
GOVERNMENT SECRETARIAT,
TRIVANDRUM, PIN-695001.
2 THE DISTRICT COLLECTOR ERNAKULAM,
OFFICE OF THE DISTRICT COLLECTOR,
COLLECTORATE, CIVIL STATION,
KAKKANAD, PIN-682030.
3 REVENUE DIVISIONAL OFFICER,
1ST FLOOR, K.B.JACOB ROAD,
FORT KOCHI-682001.
4 THE TAHSILDAR,
OFFICE OF THE TAHSILDAR,
1ST FLOOR, ABOVE SUB REGISTRAR OFFICE,
POLICE STATION ROAD,
NORTH PARAVUR, PIN-683513.
W. P. (C). No. 35291 of 2019
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5 THE VILLAGE OFFICER,
OFFICE OF THE VILLAGE OFFICER,
NORTH PARAVUR, PIN-683513.
6 THE COMPETENT AUTHORITY FOR LAND ACQUISITION,
NATIONAL HIGHWAY (CALANH-66),
ERNAKULAM, ATHANI,
NORTH PARAVOOR.P.O., PIN-683513,
REPRESENTED BY SPECIAL DEPUTY COLLECTOR (LA).
BY GOVERNMENT PLEADER SRI.B.S.SYAMANTHAK
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16.02.2022, THE COURT ON 20.05.2022 DELIVERED THE
FOLLOWING:
W. P. (C). No. 35291 of 2019
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T.R. RAVI, J.
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W. P. (C). No. 35291 of 2019
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Dated this the 20th day of May, 2022
JUDGMENT
The petitioners and one Abraham Kurian are joint owners of
property having an extent of 48 cents in Sy.No.211/9 and 211/10A.
Abraham Kurian is the son of the 1st petitioner and the brother of
the 2nd petitioner. The property devolved on the petitioners and
Abraham Kurian after the demise of Sri M.A.Kurian, the husband of
the 1st petitioner. The writ petition has been filed being aggrieved
by the classification of an extent of 18 Ares and 9 M 2 of property in
Sy.No.211/9 in North Paravur Village as Nilam by the Village
authorities even though according to the petitioners the property
had been classified as Purayidam earlier in the revenue records.
2. The petitioner has produced as Ext.P2, copy of the
Registered Partition Deed No.230/71, whereby the properties had
been obtained by the father of late M.A.Kurian. Later, the father of
late M.A.Kurian had executed Ext.P1 registered Settlement Deed
No.2894/1977 of North Paravur SRO, whereby the properties were
settled in favour of late M.A.Kurian. The petitioners point out that
in Exts.P1 & P2, the nature of the property is not stated as
W. P. (C). No. 35291 of 2019
Nilam and it is also stated that there are trees in the property
showing that it is a purayidam. It is also pointed out that in
Ext.P2, the property has been described as Purayidam in the
schedule. The petitioners submit that 13.70 Ares of land belonging
to the petitioners were acquired under LAC No.71/1995 while
M.A.Kurian was alive on the basis of notification dated 22.12.1992,
for the construction of NH-17 North Paravur. Ext.P3 is the notice
dated 29.11.1995. In Ext.P3, the property is described as
Purayidam. The petitioners state that their properties come under
Sy.Nos.211/9 and 211/10A and properties in both these Survey
Numbers have been classified as Purayidam and not Nilam.
Petitioners also state that after the acquisition, the petitioners are
in possession of 48 cents in Sy.No.211/9 and 211/10A. It is further
submitted that out of the said 48 cents, 18.9 Ares of property is
lying in Sy.No.211/9 and 1.39 Ares is lying in 211/10A. Ext.P4
produced is the reference made for enhancement of compensation.
Ext.P4 also refers to the property as dry land. It is submitted that
compensation itself was calculated on the basis that the property is
dry land. Ext.P5 is the building permit issued on 29.12.1981 by
the North Paravur Municipality to late M.A.Kurain, based on which
he had constructed a residential house in the property. This is
W. P. (C). No. 35291 of 2019
another incident pointed out by the petitioners to show that the
property is Purayidam. Ext.P6 is the tax receipt for payment of
basic tax during 2010-11 in which also the property is shown as
Purayidam. In Ext.P7, which is the possession certificate issued by
the Village Office, Parur, the property is shown as dry land.
However, in Ext.P8, which is a tax receipt issued on 21.12.1918,
the property was shown as Nilam. The petitioners submit that such
a classification was without any legal and factual basis. In Ext.P8,
the major portion of the property belonging to the petitioners
which is in Sy.No.211/9 is shown as Nilam and a small portion
which is in Sy.No.211/10A is shown as Purayidam. Ext.P9 is the
Thandaper extract relating to the property, which also shows the
property as Purayidam. Ext.P10 is the communication issued by
the Agricultural Field Officer attached to Krishi Bhavan, North
Paravur on 12.02.2019 stating that the property is not included in
the Draft Data Bank approved by the Local Level Monitoring
Committee. In Ext.P11, the petitioners requested under the Right
to Information Act, to the 5 th respondent for information as to
whether there is a basic tax register in the Paravur Village showing
the classification of the property. Ext.P12 is the reply received by
the petitioner which says that there is no BTR available in the
W. P. (C). No. 35291 of 2019
Paravur Village Office. Ext.P12 also says that as per the
Settlement Register, the property is shown as Nilam. Petitioners
submit that the properties of the petitioners have been further
notified for acquisition for NH-66 in North Paravur and since the
classification is as Nilam, the petitioners will not be able to get the
right compensation which is due to them. Petitioners pointed out
that during the earlier acquisition the property had been treated as
Purayidam and not as Nilam. Petitioners submit that prior to 2018,
the properties had been treated as Purayidam and it is only after
2018 that it is being shown as Nilam. It is submitted that on the
application submitted by the petitioners they have been issued with
Ext.P15 which is a copy of the entry in the Thandaper Register. At
present, it shows the properties as Nilam, while in Ext.P18, which
is the old Thandaper extract, the property is shown as Purayidam.
The petitioners hence submit that the present classification as
Nilam is without any supporting materials whatsoever.
3. Petitioners applied under Form 9 of the Kerala
Conservation of Paddy Land and Wetland Act, 2008 (2008 Act for
short) for classifying their property as Purayidam. Ext.P16 is the
copy of the application. This Court had by an interim order dated
23.02.2021 directed the 3rd respondent to pass orders on Ext.P16
W. P. (C). No. 35291 of 2019
application. The 3rd respondent by Ext.P20 rejected the application
on 15.11.2021. The petitioner had produced before the 3 rd
respondent a certified copy of the prior document relating to the
property in Sy.No.211/9 which is of the year 1940 to show that the
property is Purayidam. Ext.P18 is the Document No.1441/1115ME.
Ext.P18(a) is a transcript of the document prepared by retired
District Registrar Mr.Muraleedharan, for easy reading. The
petitioners have also produced Ext.P19 report dated 22.02.2021 of
the Revenue Divisional Officer stating that the lands have been
converted prior to 1967. In Ext.P20, the 3 rd respondent has relied
on the entry in the Settlement Register and has rejected the
application stating that the petitioners have failed to prove that the
property had been converted prior to 1967. It is further stated
that the Document of 1940 does not unequivocally show that the
property is Purayidam.
4. The present grievance of the petitioners is that they
have been served with a notice by the Special Tahsildar (LA) NH-
66, North Paravur for the purpose of fixing the compensation. It is
submitted that unless the revenue records are corrected showing
the property of the petitioner as Purayidam, the petitioners will be
seriously prejudiced while fixing the compensation.
W. P. (C). No. 35291 of 2019
5. Heard Sri.C.S.Ajith Prakash on behalf of the petitioners
and Sri.B.S.Syamanthak, learned Government Pleader on behalf of
the respondents.
6. A reading of the prior title deed clearly shows that the
property is Purayidam. There is no reason to doubt the veracity of
Exts.P1 & P2 which are of the years 1971 and 1977 which clearly
show the property as Purayidam. It can also be seen that the basic
tax was being received on the basis that the property is Purayidam
and the petitioner had also been given compensation for land
acquisition as early as in 1995 treating the property as Purayidam.
These are all documents which are prior to the 2008 Act. It is also
evident from the documents produced that it was only in 2018 that
the classification was changed as Nilam, apparently based on the
entry in the Settlement Register as there is no BTR available in
North Paravur Village. It is true that the Settlement Register may
show the nature of the property at the time the entry was made.
However, the subsequent changes to the property cannot be seen
from the Settlement Register. The reasoning in Ext.P20 that the
1940 document does not unequivocally prove that the property is
Purayidam does not appear to be factually correct. The 3 rd
respondent has come to the said conclusion based on the entry in
W. P. (C). No. 35291 of 2019
Ext.P18 in the schedule, which shows that the property is lying
together and has Purayidam, Veliparambu and Nilam within it.
According to the 3rd respondent, since the Survey Numbers do not
separately indicate the nature of land, it is not possible to ascertain
whether the property in Sy.No.211/9 was Purayidam. I do not
think that the said reasoning is correct. In Ext.P18 what is stated
is that the property is comprised in Sy.Nos.211/10A, 211/9 and
211/1. The total extent would appear to be around 3 Acres, out of
which 62 cents is in Sy.No.211/9. It would further appear that
1.47 Acres is Kottakkanakkan purayidam and 1.31 Acres is
Madavana Padinjare Velimparambu, both of which cannot be
treated as nilam. It is also seen from the narration in the
document that the property has several residential buildings from
which rent was being collected. The document is 27 years prior to
the coming into force of the KLU order. Along with other available
evidence regarding the nature of the property in 1971, 1977, 1981,
etc. There can be no justification for the conclusion that the
property is not converted prior to 1967. This aspect is also clear
from Ext.P2 which is of the year 1971, four years after the coming
into force of the KLU order, which describes the property as
purayidam. The description also shows that it is part of a larger
W. P. (C). No. 35291 of 2019
extent of land from which 15 cents each had been given to three
Kudikidappukars in the property. The boundaries will also show
that on one side there is a road and on the other three sides there
are purayidams.
7. The petitioner relies on the judgments in Indira P.S. &
Ors. v Sub Collector, Fortkochi & Anr. reported in [2020 (4)
KHC 33] to submit that the description in the old settlement
register as nilam cannot be relied on and other statutory
documents like BTR which shows the property as purayidam cannot
be ignored. It is hence submitted that in 2018 a change was
brought about in the revenue records only based on the old
settlement register and there was no other material available to
show that it was nilam, while the existing documents would show
the property as purayidam. The counsel also referred to the
judgment in Aboobacker M & Ors. V. Union of India & Ors
reported in [2021 (5) KHC 761] to show that while valuing the
land for the purpose of payment of compensation under the
National Highways Act, 1956, the competent authority must make
a comprehensive enquiry adverting to the documents of title, the
physical nature of property, the purpose for which it had been used
prior to acquisition, the nature of the locality, etc. Having
W. P. (C). No. 35291 of 2019
considered the documents and pleadings and the arguments put
forward by the Counsel, this Court is of the opinion that the
petitioner is entitled to succeed.
8. The writ petition is allowed. Ext.P20 is quashed. It is
declared on the basis of the prior title deeds and other documents
on record that the property belonging to the petitioners in
Sy.No.211/9 is a purayidam and had been so even prior to 1967.
Respondents 3, 4 and 5 are directed to take necessary steps to
classify the property having an extent of 18.9 Ares in Sy.No.211/9
of North Paravur Village as purayidam in the revenue records.
There will be a further direction to the 6 th respondent to determine
the compensation of the petitioners' land notified for acquisition for
NH-66, treating the land as dry land/purayidam and pay the
compensation accordingly.
Sd/-
T.R. RAVI
JUDGE
Pn/dsn
W. P. (C). No. 35291 of 2019
APPENDIX OF WP(C) 35291/2019
PETITIONERS' EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE SETTLEMENT DEED NO.2894/77
DATED 12.9.1977 OF NORTH PARAVOOR SRO.
EXHIBIT P2 A TRUE COPY OF THE PARTITION DEED NO.230/71.
EXHIBIT P3 A TRUE COPY OF THE NOTICE DATED 29.11.1995
ISSUED TO LATE MR.M.A.KURIAN UNDER THE
PROVISIONS OF THE LAND ACQUISITION ACT, 1894.
EXHIBIT P4 A TRUE COPY OF THE REFERENCE MADE BY THE
SPECIAL THASILDHAR (LA)(NH) NO.IV.
EXHIBIT P5 A TRUE COPY OF THE BUILDING PERMIT DATED
29.12.1981 ISSUED BY THE NORTH PARUR
MUNICIPALITY.
EXHIBIT P6 A TRUE COPY OF THE TAX RECEIPT DATED 7.4.2010
ISSUED IN THE YEAR 2010.
EXHIBIT P7 A TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 11.2.2016 ISSUED FROM THE PARAVUR
VILLAGE OFFICE.
EXHIBIT P8 A TRUE COPY OF THE TAX RECEIPT DATED
21.12.2018.
EXHIBIT P9 A TRUE COPY OF THE EXTRACT OF THE 'THANDAPER'
OF THE PETITIONERS PROPERTY ISSUED FROM THE
PARAVUR VILLAGE.
EXHIBIT P10 A TRUE COPY OF THE COMMUNICATION ISSUED BY
AGRICULTURAL FIELD OFFICER KRISHIBHAVAN,
NORTH PARAVOOR, DATED 12.2.2019.
EXHIBIT P11 A TRUE COPY OF THE APPLICATION UNDER THE RTI
ACT SUBMITTED BEFORE THE 5TH RESPONDENT BY
THE 2ND PETITIONER.
EXHIBIT P12 A TRUE COPY OF THE REPLY GIVEN BY THE VILLAGE
OFFICER.
EXHIBIT P13 A TRUE COPY OF THE APPLICATION SUBMITTED BY
THE 2ND PETITIONER BEFORE THE 5TH RESPONDENT.
EXHIBIT P14 A TRUE COPY OF THE REPLY GIVEN BY THE 5TH
RESPONDENT DATED 27.2.2019.
EXHIBIT P15 A TRUE COPY OF THE EXTRACT OF THE 'THANDAPER'
OF THE PETITIONERS PROPERTY ISSUED BY THE 5TH
RESPONDENT.
W. P. (C). No. 35291 of 2019
EXHIBIT P16 A TRUE COPY OF THE APPLICATION DATED
10.10.2019 (WITHOUT ANNEXURES) SUBMITTED
BEFORE THE 3RD RESPONDENT.
EXHIBIT P17 A TRUE COPY OF THE RECEIPT DATED 10.10.2019
ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT.
Exhibit P18(a) A TRUE COPY OF THE TRANSLATION OF THE OLD
MALAYALAM SCRIPT PREPARED BY THE RETIRED
DISTRICT REGISTER, MURALEEDHARAN.
Exhibit P19 A TRUE COPY OF THE REPORT OF THE VILLAGE
OFFICER BEARING NO 90/2021 DATED 22/02/2021
TO THE RDO.
Exhibit P20 A TRUE COPY OF THE ORDER OF THE 3RD
RESPONDENT NUMBERED AS K4-4543/19/K REJECTING
THE PETITIONERS FORM OF APPLICATION DATED
15.11.2021.
Exhibit P21 A TRUE COPY OF THE NOTICE DATED 23.10.2021
ISSUED BY THE SPECIAL TAHSILDAR (LA) NH-66,
NORTH PARUVUR.
