Thenutty Kallingal Moyinkutty vs The Taluk Land Board
2024 Latest Caselaw 27557 Ker

Kerala High Court

Thenutty Kallingal Moyinkutty vs The Taluk Land Board on 13 September, 2024

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W.P.(C) No.38486 of 2016                               2024:KER:69875


                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

          THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON

    FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946

                         WP(C) NO. 38486 OF 2016


PETITIONER:

              THENUTTY KALLINGAL MOYINKUTTY,
              AGED 76 YEARS, S/O. MOIDEEN, VELUMTHODY HOUSE,
              AROOR, OLAVATTUR P.O, KONDOTTY (VIA),
              MALAPPURAM DISTRICT.

              BY ADVS.
              SRI.K.M.SATHYANATHA MENON
              SMT.KAVERY S THAMPI




RESPONDENTS:

    1         THE TALUK LAND BOARD, ERNAD, MANJERI, MALAPPURAM
              DISTRICT, PIN - 673 632, REPRESENTED BY ITS CHAIRMAN.

    2         THE DISTRICT COLLECTOR
              MALAPPURAM - 676 505.

    3         THE ADDITIONAL TAHSILDAR,
              KONDOTTY TALUK, MALAPPURAM DISTRICT,
              PIN - 673 638.

    4         THE STATE LAND BOARD,
              OFFICE OF THE STATE LAND BOARD,
              THIRUVANANTHAPURAM - 695 033,
              REPRESENTED BY ITS SECRETARY.

    5         STATE OF KERALA,
              REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
              SECRETARIAT, THIRUVANANTHAPURAM - 695001.

    6         LAKSHMI, W/O. THUDIKOTTY AYYAPPAN (LATE),
              EYYAKUNNUMMAL HOUSE. P.O. OLAVATTUR, KONDOTTY (VIA),
                                   2

W.P.(C) No.38486 of 2016                            2024:KER:69875


           MALAPPURAM DISTRICT, PIN - 673 638.

    7      MOHANDAS, S/O. THUDIKOTTY AYYAPPAN (LATE), EYYAKUNNUMMAL
           HOUSE. P.O. OLAVATTUR, KONDOTTY (VIA), MALAPPURAM
           DISTRICT, PIN - 673 638.

    8      RAJESH, S/O.THUDIKOTTY AYYAPPAN (LATE), EYYAKUNNUMMAL
           HOUSE. P.O. OLAVATTUR, KONDOTTY (VIA), MALAPPURAM
           DISTRICT,                      PIN - 673 638.

    9      BISHA, D/O. THUDIKOTTY AYYAPPAN (LATE), EYYAKUNNUMMAL
           HOUSE. P.O. OLAVATTUR, KONDOTTY (VIA), MALAPPURAM
           DISTRICT,                    PIN - 673 638.

    10     ALANKANDI CHAKKI, W/O. ALANKANDI UNNIKUTTY (LATE)
           ANANTHAYOOR, P.O, VAZHAKKAD, (VIA) VAZHAKKAD,
           MALAPPURAM DISTRICT, PIN - 673 640.

    11     JAYESH, S/O. ALANKANDI UNNIKUTTY (LATE) ANANTHAYOOR,
           P.O, VAZHAKKAD, (VIA) VAZHAKKAD, MALAPPURAM DISTRICT,
           PIN - 673 640.

    12     JYOTHISH, S/O.ALANKANDI UNNIKUTTY (LATE) ANANTHAYOOR,
           P.O, VAZHAKKAD, (VIA) VAZHAKKAD, MALAPPURAM DISTRICT,
           PIN - 673 640.

    13     JITHESH, S/O.ALANKANDI UNNIKUTTY (LATE) ANANTHAYOOR,
           P.O, VAZHAKKAD, (VIA) VAZHAKKAD, MALAPPURAM DISTRICT,
           PIN - 673 640.

    14     CHOLAYIL KANNANKUTT, S/O. UNNICHATHAN,
           POTHUMPATTICKAL, POST OLAVATTOOR, KONDOTTY (VIA),
           MALAPPURAM DISTRICT, PIN - 673 638.


           BY ADVS.
           SRI.B.PRAMOD
           SMT.NAMITHA JYOTHISH


THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.09.2024,
THE COURT ON 13.09.2024 DELIVERED THE FOLLOWING:
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                              JUDGMENT

The petitioner is before this Court complaining that his property

extending to 48.046 cents in Re-survey Nos.240/1, 2 and 3 of

Olavattur Amsom of Pullikal Village has been wrongly taken as excess

land while implementing certain directions as against the declaration

filed by one Sri.K.C.Monudeen Haji with respect to some excess land.

2. The short facts necessary for the disposal of this writ petition

are as follows:

Sri.K.C.Monudeen Haji had filed a declaration with respect to

certain excess land held by him. The Taluk Land Board, Ernad as per

Order in CR No.803/1973 dated 18.04.1977 directed the surrender

of an extent of 32.85½ acres of excess land from various survey

numbers of Olavattur and Pulikkal Amsom of Pulikkal Village. The

petitioner points out that the said excess land was taken over by the

Tahsildar concerned without issuing any notices and on account of

the above, the property of the petitioner extending to 48.046 cents

was also taken over. He also points out that though the declarant

filed an application for restoration under the Kerala Land Reforms Act

(for short, the 'Act'), the Taluk Land Board had rejected the said

petition.

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3. Since the petitioner's property was also wrongly included in

the property of the declarant and taken symbolic possession, the

petitioner submitted an application before the Taluk Land Board

under Section 85(8) of the Act. The authorised officer filed a report

in the matter informing that the property has already been taken

possession as that of the declarant and assigned to Sri.Thudikotty

Ayyappan, Alankandi Unnikutty and Cholayil Kannankutty

(hereinafter referred to as the 'assignees'). It is also found that while

doing so, 48.046 cents of property belonging to the petitioner was

also taken over and assigned to the above 3 assignees in various

extents. The application filed by the petitioner under Section 85(8)

of the Act, was not entertained, since according to the Taluk Land

Board, the lands have been already assigned as above.

4. Against the above order, the petitioner preferred CRP No.909

of 1990 before this Court and by Ext.P1 Judgment dated 01.01.1991,

this Court set aside the earlier order of the Taluk Land Board, with

the following findings:

"4. The documentary evidence in the case would really show that the revision petitioner could make a claim with respect to the property in R.S.239/1, 2, 3 and 240/1, 2.

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The declarant has stated before the Taluk Land Board that he is in possession of the property. The Government Pleader submitted that the declarant has stated that the property which was taken possession of belonged to him. He has filed a statement to that effect.

5. Counsel for the revision petitioner submitted that he is ready to get the property identified after proper measurement at his expense. In my opinion identification of the property is really necessary, in view of the contentions in the case. The entire controversy can be resolved if the property is identified with reference to the documents produced by the revision petitioner.

6. The order of the Taluk Land Board dated 27.03.1990 is set aside and the Taluk Land Board is directed to give an opportunity to the revision petitioner to identify the property by proper measurement and with reference to his documents at his expense."

5. It is to be straight away noticed that the judgment of this

Court at Ext.P1 has not been challenged by anyone and the same

has become final.

6. The directions in Ext.P1 judgment were taken note of by the

1st respondent, who was issued Ext.P2 order dated 30.04.2002,

finding as under:

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"Enquiries revealed that the land belonging to the petitioner was taking over by mistake. The mistake was detected only at the time of handing over possession of the lands to the assignees. The claimant is not residing in the land which is adjacent to the lands owned by the declarant.

The Taluk Land Board at its sitting hold on 22.04.2002 discussed the issue. Since the claimant has got clear title over the land, the land taken over from him has to be reconveyed. But the land is now in the possession of the assignee. In the circumstances, the Taluk Land Board decides to issue the following order.

An extent of 48.046 cents of land suitable for assignment will be reserved from the excess land already taken over or to be taken over in future preferably from the surrounding locality for assignment to the persons they are in possession of the land belonging to the claimant. The land reserved will be handed over to the assignee and they will vacate from the 48.046 cents of land now in their possession. After vacating the assignee, the land measuring 48.046 cents in R.S.No.240/1, 2 of Olavattur Amsom of Pullikkal Village will be reconveyed to the claimant Sri.Thenuttikallingal Moyinkutty."

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Here also, it is to be straight away noticed that Ext.P2 has become

final since there was no challenge from any side as against Ext.P2.

7. The petitioner points out that on the basis of all the above,

he has been remitting tax as regards the property in question as

evidenced by Ext.P3. However, he points out that as evidenced by

Ext.P4, mutation was attempted to be carried out in the name of the

three assignees by correcting the revenue records. The petitioner,

therefore, submitted Ext.P5 representation before the 2nd respondent

pointing out his grievances. By Ext.P6 communication, the 2 nd

respondent- the District Collector addressed the 4th respondent - the

State Land Board, pointing out that settlement can be attempted.

However, later by Ext.P7, the 2nd respondent - the District Collector

informed the petitioner that it is not possible to return the land, after

taking back the land from the assignees. The proceedings at Ext.P7

also referred to a decision rendered by the 2nd respondent - the State

Taluk Land Board which is produced as Ext.P8. In Ext.P8 also, the

State Land Board has informed the 4th respondent that it is not

possible to take back the property from the assignees or to handover

the property to the petitioner. Ext.P9 is the order of the Government

on the basis of Ext.P10 report of the 4th respondent in the matter.

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8. In such circumstances, the petitioner has filed the captioned

writ petition, seeking to quash Exts.P4, P7, P8, P9 and P10 orders

and also for a direction to respondents 1 to 5 to entrust the property

covered in Ext.P2 order of the Taluk Land Board to the petitioner and

also to carry out corrections in the village/revenue records with

respect to the property in question.

9. A counter affidavit dated 16.03.2017 has been filed by the

3rd respondent, pointing out that land assigned by the Government,

had been taken as a part of surplus land, cannot be reconveyed by

the Land Board, that the land assigned by the Government has

undergone changes in the records as part of Assignment Rules. In

paragraphs 12 and 13 of the counter affidavit filed by the 3 rd

respondent, it is pointed out as under:

"12. The land assigned by the Government which had been taken as a part of surplus land cannot be re- conveyed by the Land Board. The land assigned by the Government has undergone changes in the records as part of assignment rules. Hence, the Exhibit.R4 issued by 3rd respondent is not in violation of any such rules. There are instances, where people are suffering largely since the records were not changed into their names even many years after the assignment.

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13. Hence, this Hon'ble Court may be pleased to issue an order which may protect the land assigned to the poor people and at the same time to providing a reasonable compensation to the petitioner which was not caused by his mistake."

Thus the 3rd respondent has pointed out that ultimately the petitioner

is to be reasonably compensated since the petitioner has suffered a

loss not on account of any mistake on his part.

10. A counter affidavit has also been filed on behalf of

respondents 10 to 13, the legal heirs of one of the assignees,

pointing out that the property is held in possession by their

predecessor-in-interest and subsequently by them from 1980

onwards. With reference to the mutations carried out, respondents

10 to 13 point out that the said respondents belong to the

downtrodden and they will be put to extreme difficulty on account of

frivolous/vexatious proceedings initiated by the petitioner.

11. I have heard Sri.K.M.Sathyanatha Menon, the learned

counsel for the petitioner, the learned Government Pleader for

respondents 1 to 5 and Sri.Pramod, the learned counsel for

respondents 10 to 13.

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12. Sri. K.M.Sathyanatha Menon, the learned counsel for the

petitioner with reference to the judgment at Ext.P1 contends that

this Court had directed the Taluk Land Board to reconsider the issue

by permitting the petitioner to identify the property. He further

points out that the judgment of this Court at Ext.P1 is implemented

by Ext.P2 order of the Taluk Land Board wherein there is a categorical

finding that the mistakes have been carried out by the State, and

therefore the extent of 48.046 cents of land has to be identified and

handed over to the assignees and thereafter, the land in the

possession of the assignees have to be reconveyed to the petitioner

herein. He also points out that insofar as Ext.P2 has not been

challenged by anyone, the same has to be implemented in its true

letter and spirit.

13. On the other hand, Sri. Pramod Kumar, the learned counsel

for respondents 10 to 13 points out with reference to the counter

affidavit filed that they are in possession of the property and there is

no justification for dispossessing them in the guise of implementing

Ext.P2. The learned Government Pleader also seeks to sustain the

impugned proceedings.

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14. I have considered the submissions made across the Bar as

above as well as the connected records.

15. The admitted facts are that the petitioner is dispossessed

of 48.046 cents of land, for no fault of his. The petitioner's right to

possess the said property is not in dispute. It is only that the said

property on account of a mistake committed by the official

respondents was taken as part of the property of the declarant. On

account of the above, the property was assigned to the three

assignees referred to above. Upon coming to know about the above

mistake, the petitioner sought for interference in the matter which

stood rejected by the Taluk Land Board. The orders of the Taluk Land

Board are set aside by Ext.P1 judgment of this Court and the Taluk

Land Board issued Ext.P2 order dated 30.04.2002, positively finding

that the petitioner cannot be faulted for the mistake of the official

respondents and the property has to be re-conveyed to the

petitioner. It is true, there is a further finding that, the assignees

have to be provided with alternate properties. The petitioner has

been later informed by Ext.P7 letter issued by the 2nd respondent

that, it is not possible to return the land or to take back the land

from the assignees. Ext.P7 has been issued on the basis of Ext.P8

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approval obtained from the State Land Board, which in turn was on

the basis of the approval by the Government at Ext.P9.

16. The question for consideration is as to whether, how far

Ext.P2 is to be enforced.

17. The fact that Ext.P2 has been issued by the Taluk Land

Board, on an appropriate application filed under Section 85(8) of the

Act is not in dispute. Once such an order is issued, the same has to

be challenged before this Court under the provisions of Section 103

of the Act. However, it is noticed that Ext.P2 has not been challenged

by anyone. In other words, Ext.P2 has become final.

18. The Apex Court in Bhopal Sugar Industries Ltd. v.

Income Tax Officer, Bhopal [(1960) 40 ITR 618], considered a

question as regards the legality or otherwise of the refusal on the

part of the authorities under the Income Tax Act to carry out positive

directions issued by the Appellate Tribunal under the Act, holding

that the directions issued by the Tribunal were incorrect. The findings

by the Apex Court were as follows:

'8. We think that the learned Judicial Commissioner was clearly in error in holding that no manifest injustice resulted from the order of the respondent conveyed in his letter

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dated March 24, 1955. By that order the respondent virtually refused to carry out the directions which a superior tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on a hierarchy of courts. If a subordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal.

9. It must be remembered that the order of the Tribunal dated April 22, 1954, was not under challenge before the Judicial Commissioner. That order had become final and binding on the parties, and the respondent could not question it in any way. As a matter of fact the Commissioner of Income Tax had made an application for a reference, which application was subsequently withdrawn. The Judicial Commissioner was not sitting in appeal over the Tribunal and we do not think that in the circumstances of this case it was open to him to say that the order of the Tribunal was wrong and, therefore, there was no injustice in disregarding that order. As we have said

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earlier, such a view is destructive of one of the basic principles of the administration of justice.' To the same effect is the judgment of the Apex Court in Union of

India (UOI) and Others v. Kamlakshi Finance Corporation Ltd.

[1991(55) ELT 433(SC)].

19. Therefore, there cannot be any doubt that Ext.P2 has

become final and the same is to be acted upon in its entirety. The

4th respondent or for that matter, the 5th respondent is not competent

to sit in appeal over the findings contained in Ext.P2, especially, after

the lapse of more than 14 years (with reference to the date of

Ext.P7).

20. The next point to be considered in the case at hand would

be as to the rights of the assignees - respondents 6 to 14. The fact

that the said assignees have been provided land is also not in

dispute. The intention of the official respondents was to provide the

land to the assignees from the properties surrendered by the

declarant. As in the case of the petitioner, respondents 6 to 14 also

cannot be faulted for having come into the possession of the

properties of the petitioner herein. Their interest is also taken care

of in Ext.P2, finding that suitable land from the excess land already

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taken over or to be taken over in future from the surrounding locality

is to be identified and given possession to the assignees. The stand

of the official respondents is to the effect that, there is no provision

by which land once assigned can be taken back from the assignees.

The official respondents cannot be heard to raise such contention,

since it is a settled principle of law that no one is to suffer on account

of a mistake committed by the State. Therefore, the assignees are

also to be protected in a manner known to law.

In such circumstances, this writ petition would stand allowed with

the following directions:

i. The proceedings at Ext.P2 issued by the Taluk Land Board

dated 30.04.2002 is to be implemented in its letter and

spirit.

ii. The directions contained in Ext.P2 are to be implemented

as expeditiously as possible, at any rate, within a period

of six months from today.

iii. In any event, if the official respondents are not in a position

to implement the directions contained in Ext.P2 within six

months as above, the petitioner would be entitled to the

value of the land to be arrived at on the basis of a fair

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value as on date fixed by the Government.

iv. The value as at Serial No.3 above would have to be paid to

the petitioner, as expeditiously as possible.

Sd/-

                                        HARISANKAR V. MENON
                                                 JUDGE
ln


W.P.(C) No.38486 of 2016                           2024:KER:69875



                   APPENDIX OF WP(C) 38486/2016

PETITIONER'S EXHIBITS:

EXHIBIT P1           TRUE COPY OF THE JUDGMENT DATED 1.1.1991 IN
                     C.R.P. NO.909 OF 1990.

EXHIBIT P2           TRUE COPY OF THE ORDER DATED 30.4.2002 OF THE
                     1ST RESPONDENT.

EXHIBIT P3           TRUE COPY OF THE LAND TAX RECEIPT DATED
                     27.6.2015 ISSUED FROM THE VILLAGE OFFICE,
                     PULIKKAL.

EXHIBIT P4           TRUE COPY OF THE PROCEEDINGS OF THE 3RD
                     RESPONDENT DATED 25.8.2014.

EXHIBIT P5           TRUE COPY OF THE REPRESENTATION DATED

20.10.2014 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE SECRETARY, LAND BOARD DATED 24.10.2014.

EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 30.6.2016 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 5.4.2016 ISSUED BY THE SECRETARY, LAND BOARD TO THE 2ND RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE LETTER DATED 16.3.2016 ISSUED BY THE ADDITIONAL CHIEF SECRETARY TO THE 4TH RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE REPORT SUBMITTED BY THE 4TH RESPONDENT BEFORE THE PRINCIPAL SECRETARY(REVENUE) DATED 5.8.2015.