Kerala High Court
K.Kunjumon vs The District Collector on 13 September, 2024
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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.1020 OF 2017
PETITIONERS:
*1 SHAJU, AGED 53 YEARS,
S/O.THOMAS, CHAMMANIKODATH HOUSE, SHOLAYUR,
MANNARKKAD TALUK, PALAKKAD DISTRICT.(EXPIRED)
ADDL.P2 LALY SHAJU, AGED 59 YEARS,
W/O.(LATE) SHAJU THOMAS, CHAMMANIKODATH HOUSE,
PULINCHODE, ALUVA, ERNAKULAM-683 101.
ADDL.P3 THOMAS SHAJU, S/O.(LATE) SHAJU THOMAS,
CHAMMANIKODATH HOUSE, PULINCHODE, ALUVA,
ERNAKULAM - 683 101.
ADDL.P4 NEETHY SHAJU, AGED 33 YEARS,
D/O.(LATE) SHAJU THOMAS, CHAMMANIKODATH HOUSE,
PULINCHODE, ALUVA, ERNAKULAM -683 101.
(ADDL P2 TO P4 ARE IMPLEADED AS PER ORDER DATED
16-02-2024 IN IA 1/2024 IN WP(C)1020/17)
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY SECRETARY TO
GOVERNMENT, REVENUE DEPARTMENT,
THIRUVANANTHAPURAM-695001.
2 THE DISTRICT COLLECTOR,
PALAKKAD-678001.
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3 THE TAHSILDAR, MANNARKKAD,
PALAKKAD DISTRICT-679582.
4 THE VILLAGE OFFICER,
SHOLAYUR, PALAKKAD DISTRICT-679582.
5 REVENUE DIVISIONAL OFFICER,
OTTAPALAM, PALAKKAD DISTRICT-678101.
6 VAZHA, S/O.MARUTHAN, KOOTHADICHALLA,
SHOLAYUR, PALAKKAD DISTRICT-679582.
7 MARIMOOPPAN, KOOTHADICHALLA, SHOLAYUR,
PALAKKAD DISTRICT-678582.
BY GOVERNMENT PLEADER, SMT.SUNY K.B.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.08.2024,
ALONG WITH WP(C) NO.1949/2017 AND CONNECTED CASES, THE COURT ON
13.09.2024 DELIVERED THE FOLLOWING:
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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.1949 OF 2017
PETITIONER:
PAUL GEORGE, AGED 49 YEARS,
S/O.GEORGE, NILATHUMMUKKIL HOUSE, SHOLAYUR VILLAGE,
MANNARKKAD TALUK, PALAKKAD DISTRICT.
BY ADVS.
SRI.P.RAVINDRAN (SR.)
SRI.SREEDHAR RAVINDRAN
RESPONDENTS:
1 THE DISTRICT COLLECTOR,
PALAKKAD-678001.
2 THE SUB COLLECTOR,
OTTAPALAM-678515.
3 MARUTHAN, S/O.MARIMOOPPAN, KOOTHADICHALA,
SHOLAYUR-678581.
4 RAMAN, S/O.MARIMOOPPAN, KOOTHADICHALA,
SHOLAYUR-678581.
5 RAMI, W/O.VAZHA MOOPPAN, KOOTHADICHALA,
SHOLAYUR-678581.
6 MARUTHI, D/O.VAZHA MOOPPAN, KOOTHADICHALA,
SHOLAYUR-678581.
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7 LAKSHMI, D/O.VAZHA MOOPPAN, KOOTHADICHALA,
SHOLAYUR-678581.
8 SELVI, D/O.VAZHA MOOPPAN, KOOTHADICHALA,
SHOLAYUR-678581.
BY GOVERNMENT PLEADER, SMT.SUNY K.B.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.08.2024,
ALONG WITH WP(C).1020/2017 AND CONNECTED CASES, THE COURT ON
13.09.2024 DELIVERED THE FOLLOWING:
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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. 19141 OF 2018
PETITIONERS:
1 K.KUNJUMON, 51 YEARS, S/O.JOSE TC THEKKAN HOUSE,
MELUR P.O., MELUR VILLAGE, MUKUNDAPURAM TALUK,
THRICHUR-680311.
2 DEVASSY KUTTY, 72 YEARS, S/O.OUSEPH, CHATHELI HOUSE,
CHATTIKULAM, KODASERY VILLAGE, MUKUNDAPURAM TALUK
TRICHUR-680725.
BY ADV SRI.U.BALAGANGADHARAN
RESPONDENTS:
1 THE DISTRICT COLLECTOR,
CIVIL STATION, PALAKKAD-678001.
2 THE REVENUE DIVISIONAL OFFICER
OTTAPALAM-679 101.
3 THE TAHSILDAR, MANNARGHAT TALUK,
MANNARGHAT, PALAKKAD-678582.
4 THE VILLAGE OFFICER,
SHOLAYUR VILLAGE, AGALI,
PALAKKAD-678581.
BY GOVERNMENT PLEADER, SMT.SUNY K.B.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.08.2024,
ALONG WITH WP(C)NO.1020/2017 AND CONNECTED CASES, THE COURT ON
13.09.2024 DELIVERED THE FOLLOWING:
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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. 3467 OF 2017
PETITIONERS:
1 K. KUNJUMON, 51 YEARS, S/O. JOSE T.C.,
THEKKAN HOUSE, MELUR P.O., MELUR VILLAGE,
MUKUNDAPURAM TALUK, TRICHUR-680 311.
*2 DEVASSY KUTTY, 72 YEARS, S/O.OUSEPH, CHATHELI HOUSE,
CHATTIKULAM, KODASERY VILLAGE, MUKUNDAPURAM TALUK,
TRICHUR-680 725.(DIED)
ADDL.P3 SHAJI C.D., AGED 45 YEARS,
S/O.DEVASSY KUTTY, CHATHELI HOUSE, KODASERRY P.O.,
CHALAKUDY, THRISSUR-680 311.
(REPRESENTED BY POWER OF ATTORNEY HOLDER, K.KUNJUMON,
AGED 54 YEARS, S/O.JOSE T.C., THEKKAN HOUSE, MELUR P.O.,
MELUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR-680 0311.
(IS IMPLEADED AS PER ORDER DATED 08-12-2020 IN IA
1/2020).
BY ADV SRI.U.BALAGANGADHARAN
RESPONDENTS:
1 THE STATE, REPRESENTED BY PRINCIPAL SECRETARY,
REVENUE DEPARTMENT,SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE DISTRICT COLLECTOR,
CIVIL STATION, PALAKKAD-678 001.
3 THE REVENUE DIVISIONAL OFFICER,
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OTTAPALAM, PALAKKAD-679 101.
4 MARI MOOPPAN, KUTHADICHALA URU, SHOLAYUR,
SHOLAYUR POST, MANARKKAD, PALAKKAD - 678 581.
5 RAMI, W/O.VAZHA MOOPPAN, KUTHADICHALA URU, SHOLAYUR,
SHOLAYUR POST, MANARKKAD, PALAKKAD - 678 581.
6 MARUTHI, D/O.VAZHA MOOPPAN, KUTHADICHALA URU,
SHOLAYUR, SHOLAYUR POST, MANARKKAD, PALAKKAD - 678 581.
7 LAKSHMI, D/O.VAZHA MOOPPAN, KUTHADICHALA URU,
SHOLAYUR, SHOLAYUR POST, MANARKKAD, PALAKKAD - 678 581.
8 SELVI, D/O.VAZHA MOOPPAN, KUTHADICHALA URU, SHOLAYUR,
SHOLAYUR POST, MANARKKAD, PALAKKAD - 678 581.
BY GOVERNMENT PLEADER, SMT.SUNY K.B.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.08.2024,
ALONG WITH WP(C).1020/2017 AND CONNECTED CASES, THE COURT ON
13.09.2024 DELIVERED THE FOLLOWING:
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"C.R."
JUDGMENT
[WP(C) Nos.1020/2017, 1949/2017, 19141/2018, 3467/2017]
These four writ petitions pertain to the dispute as regards
certain properties, which allegedly attract the provisions under the
Kerala Scheduled Tribes (Restriction on Transfer of Lands and
Restoration of Alienated Lands) Act, 1975 (hereinafter referred to as
'Act 31 of 1975') as well as the provisions under the Kerala Restriction
on Transfer by and Restoration of Lands to Scheduled Tribes Act,
1999 (hereinafter referred to as the 'Act 12 of 1999').
2. The short facts necessary for the disposal of these writ
petitions, as culled out from W.P(C) No.1949 of 2017 are as under:
Vast extents of land were held by Mannarkkad Mooppil Nair in
Jenm right. M/s. P.C. George, P.C. Mathew, P.C. Abraham and P.C.
Thomas (hereinafter referred to as 'P.C. brothers') obtained tenancy
rights and possession over some of the properties originally held by
Mannarkkad Mooppil Nair. The properties so obtained by P.C.
brothers were falling under Survey No.913/1 of Sholayur Village.
P.C. brothers obtained purchase certificates as regards the properties
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aforementioned separately, which devolved on their legal heirs upon
their death. Sri.Paul George (the petitioner in W.P(C) No.1949 of
2017 and Sri.Shaju (petitioner in W.P(C) No.1020 of 2017)
purchased the afore properties from the legal heirs of M/s. P.C.
George and others during the year 1995. On 28.04.1995, Ext.P3, a
partition deed was entered into among the petitioners, Sri. Paul
George and Sri. Shaju and they took possession of the separate lands
earmarked for each other. The partition deed at Ext.P3, is also with
reference to the properties falling under Survey No.913/1 of
Sholayur Village, Mannarkkad Taluk.
3. One Sri.Marimooppan and Sri.Vazha (hereinafter referred to
as 'applicants') presented applications before the Revenue Divisional
Officer under the provisions of Act 31 of 1975, essentially pointing
out that the properties held by the petitioners in W.P(C) No.1949 of
2017 and W.P(C) No.1020 of 2017, Paul George and Shaju
respectively, were originally in their possession and therefore, they
are entitled to restoration of the possession since P.C. brothers had
forcefully taken possession of such properties from them. Copies of
such applications are produced as Exts.P4 and P5 respectively. The
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said applications stood numbered as TLA Nos.2058/1987 and
2059/1987. In the meantime, Act 31 of 1975 stood repealed by Act
12 of 1999.
4. The 2nd respondent issued Ext.P6 order on Exts.P4 and P5
applications holding that the properties were originally in the
possession of the applicants and therefore, hit by the provisions of
Act 12 of 1999. The said order was challenged by filing an appeal
before the 1st respondent herein by the petitioner.
5. The 1st respondent issued Ext.P8 order finding that:
i. The applicants in their applications had not noted any
survey numbers as regards the property concerned.
ii. The report submitted by the Village Officer, Sholayur
shows that in Survey No.913/2, the property
concerned is having an extent of 20 acres, whereas
reference to the A and B register discloses that as
against Survey No.913/2, the extent was only 3.35
hectares.
iii. In the statement given by Marimooppan before the
Revenue Divisional Officer, Ottapallam on 16.11.2010,
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the survey number mentioned is 917/1; that too as
against 10 acres of property.
iv. The Taluk surveyor has reported that the applicants
were claiming the properties falling under the Survey
No.913/1 which is in possession of Sri.Shaji,
S/o.Thomas and Paul George, S/o.George.
v. The claim presented by the applicants does not mention
about the properties held by K.Kunjumon.
vi. Philip does not hold any property in the afore survey
numbers.
On account of the above reasons, Ext.P6 order of the 2 nd respondent
stood set aside and the matter was remanded for reconsideration at
the hands of the 2nd respondent.
6. The 2nd respondent, thereafter, issued Ext.P9 order,
essentially arriving at the same findings as in Ext.P6. The further
appeal at Ext.P10 by the petitioner stood rejected at the hands of
the 1st respondent by Ext.P11. It is in the above circumstances,
W.P(C) No.1949 of 2017 is filed.
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7. Shaju, who is one of the signatories in Ext.P3 produced along
with W.P(C) No.1949 of 2017 referred to above, has been in
possession of some properties obtained by him in the above manner
and pursuant to the partition at Ext.P3. Therefore, Shaju filed W.P(C)
No.1020 of 2017 when he was faced with the same proceedings
mentioned in W.P(C) No.1949 of 2017. The prayer in W.P(C)
No.1020 of 2017 is to quash Ext.P6 order issued by the 5th
respondent (same as Ext.P9 in W.P(C) No.1949 of 2017) and also
Ext.P9 order issued by the 2nd respondent (same as Ext.P11 in
W.P(C) No.1949 of 2017).
8. W.P(C) No.3467 of 2017 is filed by an assignee who obtained
the properties pursuant to Exts.P1 to P3 documents which were
executed by the legal heirs of the assignees from P.C. brothers. The
challenge in W.P(C) No.3467 of 2016 is against Ext.P9 issued by the
2nd respondent (same as Ext.P11 in W.P(C) No.1949 of 2017).
9. W.P(C) No.19141 of 2018 was filed by the petitioner in
W.P(C) No.3467 of 2017 complaining about the refusal to accept
basic tax on the land on account of the proceedings challenged in the
former writ petitions.
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10. Separate counter-affidavits have been filed in the
respective writ petitions. In WP(C) No.1020 of 2017, a counter
affidavit has been filed by the 2nd respondent, contending that no
documents were produced in support of various claims made as
regards the possession of the property at the hands of P.C. brothers
and therefore, P.C. brothers can only be considered as encroachers,
having no actual right over the property.
11. A reply affidavit is also filed by the petitioner in W.P(C)
No.1020 of 2017, relying on Ext.P11 report of the Special Survey
Team, Mannarkkad, wherein, the properties in Survey No.913/1 and
the properties claimed by the applicants have been separately
marked.
12. I have heard Sri. P. Ravindran, the learned senior counsel
for the petitioner in W.P.(C) No.1949 of 2017, Sri. K. Mohanakannan,
the learned counsel for the petitioner in W.P.(C) No.1020 of 2017
and Sri.U.Balagangadharan, the learned counsel for the petitioner
in W.P(C) Nos.3467 of 2017 and 19141 of 2018 as also the learned
Government Pleader.
13. Sri.P. Ravindran, the learned senior counsel would contend
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as under:
i. The provisions of Act 31 of 1975 define the term
"transfer" under Section 2(g) and it is only in a situation
where "transfer" is proved by the applicants, the provisions
under Section 4 of the Act, would get attracted. He points
out that if Section 4 of the Act is not getting attracted,
there is no question of applying the provisions under
Section 6 of the Act.
ii. Sri.Ravindran relied on Exts.P4 and P5 applications filed by
the applicants and would submit that in column 5 of the
applications as against the extent, only 5 Ares and 15 Ares
(total 20 Ares) are mentioned. He also points out that as
against the survey number to be mentioned in column
5(b), in both applications the mention is only about SM
840/76.
iii. He points out to Ext.P1 survey and settlement register of
Sholayur Village wherein the properties under Survey
No.913/1 is shown to be under the occupation of 'P.C.
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brothers', whereas, in the very same register as against
Survey No.917/1 alone the applicants' name figure.
14. Sri.Mohanakannan, the learned counsel for the petitioner
in WP(C) No.1020 of 2017 points out as under:
i. In Ext.P6 order, the Sub Collector has only proceeded on
the basis of the "assumptions".
ii. Relying on Ext.P5(a) - A and B register produced along
with the writ petition, he points out that the properties
under Survey No.913/1 were in the possession of 'P.C.
brothers'.
iii. He relies on Ext.P11 report of the Special Survey Team
to contend that the properties in Survey No.913/1 are
different from the properties mentioned in the
applications filed by the applicants.
15. Sri.Balagangadharan, the learned counsel for the
petitioners in W.P(C) No.3467 of 2017:
i. Relies on Ext.P11 Survey War Register to point out that
SM 840/76 referred to in the applications filed by the
applicants, pertain to Survey No.917/1.
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ii. He also relies on Ext.P10 report submitted by the Additional
Tahsildar, wherein there is a positive finding that the
properties under Survey No.913/1 were obtained against
the purchase certificate by 'P.C. brothers' and there is no
evidence adduced by the applicants in support of their
contentions.
16. The learned Government Pleader would rely on the findings
contained in the order issued by the Sub Collector to contend that
the proceedings initiated were perfectly justified.
17. I have considered the rival submissions and the connected
records.
18. The first issue arising for consideration in this writ petition
is regarding the applicability of the provisions under the Act 31 of
1975 and Act 12 of 1999. The above enactments have been
introduced for restricting the "transfer" of lands by members of the
Scheduled Tribes in the State and for restoration of possession of
lands "alienated by such members of Scheduled Tribes". Sections 4
and 5 of Act 31 of 1975 reads as under:
"4. Restriction on transfer:- Notwithstanding anything
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to the contrary contained in any other law, or in any
contract, custom or usage, or in any judgment, decree or
order of any court, any transfer effected by a member of
a Scheduled Tribe, of immovable property possessed,
enjoyed or owned by him, on or after the commencement
of this Act to a person other than a member of a Scheduled
Tribe, without the previous consent in writing of the
competent authority, shall be invalid.
5. Certain transfers to be invalid:- Notwithstanding
anything to the contrary contained in any other law for the
time being in force, or in any contract, custom or usage,
or in any judgment, decree or order of any court, any
transfer of immovable property possessed, enjoyed or
owned by a member of a Scheduled Tribe to a person
other, than a member of a Scheduled Tribe to a person
other than a member of a Scheduled Tribe effected on or
after the first day of January, 1960, and before the
Commencement of this Act shall be deemed to be invalid."
(underlining supplied)
Under Section 4, certain transfers are deemed to be invalid, when
made without the previous consent in writing of the competent
authority. Similarly, under Section 5, certain transfers made on or
after 01.01.1960 upto the commencement of the Act are also made
invalid. As regards the transfer of immovable property, which is
invalid under Section 4 or 5, the statute provides for the following
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treatment under Section 6 of Act 31 of 1975:
"6. Reconveyance of property.- (1) Where by reason of a
transfer of immovable property which is invalid under S. 4 or
S.5, a member of a Scheduled Tribe has ceased or ceases to
be in possession or enjoyment thereof, he shall be entitled
to restoration of possession or enjoyment, as the case may
be, of such property.
(2) Any person entitled to be restored to the possession or
enjoyment of any immovable property under sub-section
(1) or any other person on his behalf may make an
application, either orally or in writing, to the Revenue
Divisional Officer within a period of one year from the date
of commencement of this Act or such further period as may
be specified by Government by notification in the Gazette.
(a) for restoration of possession or enjoyment, as the
case may be, of such property, if such transfer had
been made before the date of commencement of this
Act; or
(b) for restoration of possession or enjoyment, as the
case may be, of such property and for the prosecution
of the person who has procured such transfer, if such
transfer was made on or after the date of
commencement of this Act.
(3) On receipt of an application under sub-section (2), the
Revenue Divisional Officer shall make or cause to be made
necessary inquiries in respect of such application and, if he
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is satisfied that the applicant or the person on whose behalf
the application has been made is entitled to restoration of
possession or enjoyment, as the case may be, of the
immovable property mentioned in the application, he shall,
by order, direct the person in possession or enjoyment of
such property to deliver possession thereof to the applicant
or to the person on whose behalf the application has been
made or, as the case may be, to allow him to enjoy such
property, within a period of thirty days from the date of
service of the order and also specify the amount payable
under section 11."
(underlining supplied)
Thus Section 6 provides for the reconveyance of the property, the
transfer of which is invalid under Section 4 or 5.
19. A reading of Sections 4, 5 and 6 make it clear that the
above provisions are attracted only when there is a "transfer" of
property;
i. By a member of the Scheduled Tribe
ii. Of immovable property possessed, enjoyed or owned by
him
iii. To a person other than a member of a Scheduled Tribe.
Therefore, it is only in a situation where the "applicant" under Section
6(2) of Act 31 of 1975 proves that, there was a transfer of certain
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property from his side to a person other than the member of a
Scheduled Tribe, the above provision gets attracted.
20. The term "transfer" has been defined under Section 2(g) of
Act 31 of 1975 as under:
"(g) "transfer" in relation to immovable property, means
an act by which immovable property is conveyed by any
documentary or oral transaction, whether by way of
mortgage with or without possession, lease, sale, gift or
exchange, or in any other manner, not being a testamentary
disposition; and includes a charge, 'vilapanayam',
'unduruthi', contract relating to immovable property,
mortgage, pledge or hypothecation of crops or standing
trees on payment of consideration or otherwise, voluntary
surrender and abandonment.
Explanation.-For the purposes of his clause,-
(i) "vilapanayam" means hypothecation of crops on
payment of consideration or otherwise;
(ii) 'unduruthi", means an assignment of the right to
collect the usufructs available or anticipated to be
available on any land during a specified term for a
specified price.
A reading of the above definition makes it clear that a conveyance
either by a document or by an oral transaction of immovable property
by way of mortgage, lease, sale, gift/exchange or in any other
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manner of immovable property is attracted under the above
definition. Therefore, the applicant has to first prove with reference
to the immovable property that there was a transfer from his side to
the member of the Non-Scheduled Tribe, without which the
provisions of the statute are not attracted.
21. The provisions of Act 12 of 1999, which came into force
with effect from 24.01.1986, repealed Act 31 of 1975. Here, the
applications have been presented by the applicants before the 2nd
respondent as evidenced by Exts.P4 and P5 on 16.07.1987. However,
the orders were issued on 31.05.2012 as evidenced by Ext.P6 with
reference to the provisions of Act 12 of 1999.
22. The provisions of Act 12 of 1999 are also similar to the
provisions under Act 31 of 1975. But as regards the term "transfer",
Act 12 of 1999 provides as under:
"(g) transfer means the transfer made by any person
belonging to the Scheduled Tribe of lands in his ownership
and possession to a person other than a member of the
Scheduled Tribe by way of sale, mortgage, lease, gift and
includes vilapanayam and unduruthy.
Explanation:- For the purposes of this clause:
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(i) vilapanayam means hypothecation of crops on pay-
ment of consideration or otherwise;
(ii) unduruthi means an assignment of the right to collect
the usufructs available or anticipated to be available
to any land during a specified term for a specified
price."
(underlining supplied)
Apart from the above difference, the provisions under Section 4
relating to restriction on transfer, Section 5 providing certain
transfers to be invalid and Section 7 dealing with the reconveyance
of land are all pari materia to the corresponding provisions under Act
31 of 1975. Therefore, the applicants in the case at hand ought to
have proved the "transfer" by them to the petitioners herein so as to
get the benefits under the provisions of Section 7 (reconveyance of
land) from the petitioners.
23. The reference to the applications at Exts.P4 and P5 would
show that the reconveyance is sought as against a property,
extending to 5 Ares in Ext.P4 and 15 Ares in Ext.P5. Similarly, as
regards the description of the property no survey number is noted.
Instead, the applicants only make reference to the "SM 840/76". The
nature of the transfer is shown as "free lease".
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24. Thus, first of all, the area which is sought to be reconveyed
is 20 Ares which has no connection with the property in the
possession of the petitioners. Secondly, no survey number is
provided. Thirdly, in the place of the survey number, reference is
made to SM 840/76. The said SM 840/76 was in relation to the
property in Survey No.917/1 as is clear from Ext.P11 produced along
with W.P(C) No.3467 of 2017. Similarly, a reference to Ext.P1,
produced along with W.P(C) No.1949 of 2017 would show that
Survey No.917/1 is with reference to the properties in the possession
of the applicants. Therefore, Ext.P4 and P5 applications can only be
considered to be filed with reference to the properties in Survey
No.917/1. In Ext.P1 itself, produced along with W.P(C) No.1949 of
2017, the properties under Survey No.913/1 are shown as under the
occupation of 'P.C. brothers'.
25. Similarly, the report at Ext.P11 produced along with W.P(C)
No.1020 of 2017 of the Special Survey Team clearly shows that the
properties under Survey No.913/1 are different from the survey
number of the properties claimed by the applicants. Ext.P5(a) also
proves that the properties in Survey No.913/1 are held by 'P.C.
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brothers'. From all the above, it is clear that the applicants were not
in a position to prove any "transfer of properties from their side to
the petitioners herein".
26. The first order issued by the 2 nd respondent - Ext.P6 in
W.P(C) No.1949 of 2017, also proceeds purely on the basis of
assumptions.
27. Apart from all the above, it is noticed from Ext.P6 in W.P(C)
No.1949 of 2017 (later substituted as Ext.P14 along with I.A.No.1 of
2019) dated 31.05.2012, the 2nd respondent found with reference to
Ext.P5 (a) and on examination of the parties that the disputed
property was in the name of P.C. brothers. Similarly, there is a
finding that the properties in the name of the applicants are falling
under Survey No.917/1. Even after finding so, the 2nd respondent
found that since no records were produced by the petitioners apart
from Ext.P3 partition deed, the stand of the petitioners cannot be
accepted. I find no justification on the part of the 2nd respondent for
arriving at such a finding. As already noticed, it was for the applicants
to have proved the transfer, so as to invoke the provisions of the
relevant statutes. When the 2nd respondent finds with reference to
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the documents including Ext.P5(a) of Sholayur Village that the
disputed properties are in the name of P.C. brothers, the onus on the
part of the applicants cannot be treated to have shifted to the
petitioners herein. It is only when the applicants prove their case by
adducing evidence, the petitioners can be called upon to produce
subsequent documents in support of their ownership. The petitioners
have produced Exts.P15 and P16 purchase certificates along with
I.A.No.1 of 2021 issued by the Special Tahsildar, Land Reforms,
Pudur dated 28.06.1974 and 29.05.1975 in favour of P.C.Mathew and
P.C.Thomas. The said purchase certificates have been issued
pursuant to the proceedings before the Land Tribunal. A reference
to the schedule forming part of the said purchase certificates also
shows P.C. brothers were having a valid right. In such circumstances,
I do not find any reason to sustain the impugned orders challenged
in these writ petitions.
28. I also notice the judgment of this Court in Kunjiraman
Nambiar and others v. State of Kerala and others [2018 (4)
KHC 257] wherein this Court found that it is only when the factum
of transfer is proved, the provisions of Act 12 of 1999 would get
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attracted.
Resultantly, the writ petitions would stand allowed as under:
i. Exts.P9 and P11 challenged in W.P(C) No.1949 of 2017
would stand quashed.
ii. In view of the above, W.P(C) Nos.1020 and 3467 of 2017
are also allowed.
iii. Ext.P11 in W.P(C) No.19141 of 2018 is quashed,
directing the 4th respondent therein to accept basic tax for
the year 2018-2019 onwards in respect of the properties
covered by Exts.P1 to P3 from the petitioners therein.
Sd/-
HARISANKAR V. MENON
JUDGE
ln
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APPENDIX OF WP(C) 1949/2017
PETITIONER'S EXHIBITS:
EXHIBIT P1- RELEVANT EXTRACT OF THE SURVEY AND
SETTLEMENT REGISTER OF SHOLAYUR VILLAGE.
EXHIBIT P2- TRUE COPY OF THE LICENCE.
EXHIBIT P3- TRUE COPY OF THE PARTITION DEED DATED
28/04/1995.
EXHIBIT P4- TRUE COPY OF THE APPLICATION SUBMITTED
BEFORE THE RDO NO.2058/1987 DATED
16/07/1987.
EXHIBIT P5- TRUE COPY OF THE APPLICATION SUBMITTED
BEFORE THE RDO NO.2059/1987 DATED
16/07/1987.
EXHIBIT P6- TRUE COPY OF THE ORDER OF THE RDO DATED
31/05/2012.
EXHIBIT P7- TRUE COPY OF THE APPEAL FILED BY THE
PETITIONER DATED 08/08/2012 (WITHOUT EXTES.).
EXHIBIT P8- TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT
DATED 22/08/2014.
EXHIBIT P9- TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT
DATED 19/10/2015.
EXHIBIT P10- TRUE COPY OF THE APPEAL PREFERRED BY THE
PETITIONER DATED 17/11/2015 (WITHOUT EXTS.).
EXHIBIT P11- TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT
DATE 09/12/2016.
EXHIBIT P12 TRUE COPY OF THE REQUEST SUBMITTED BY THE
PETITIONER DATED 20/06/2018.
EXHIBIT P13 TRUE COPY OF COMMUNICATION OF THE VILLAGE
OFFICER, SHOLAYUR DATED 20/06/2018.
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EXHIBIT P14 TRUE COPY OF THE ORDER OF THE REVENUE
DIVISIONAL OFFICER, OTTAPALAM DATED
31.05.2012.
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APPENDIX OF WP(C) 19141/2018
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF DOCUMENT NO.1307/07 DATED
10/10/2007 OF SRO AGALI.
EXHIBIT P2 TRUE COPY OF DOCUMENT NO.1295/1/07 DATED
10/10/2007 OF SRO AGALI
EXHIBIT P3 TRUE COPY OF DOCUMENT NO. 1299/1/07 DATED
10/10/2007 OF SRO AGALI.
EXHIBIT P4 TRUE COPY OF PROCEEDINGS OF 2ND RESPONDENT
DATED 13/5/1995
EXHIBIT P5 A TRUE COPY OF ORDER NO.LR 96/2013/16159/9
ISSUED BY FIRST RESPONDENT.
EXHIBIT P6 A TRUE COPY OF ORDER OF SECOND RESPONDENT
DATED9/9/2015
EXHIBIT P7 A TRUE COPY OF ORDER OF FIRST RESPONDENT
DATED 9/12/2016
EXHIBIT P8 A TRUE COPY OF ORDER IN WPC 3467/2017 DATED
2/6/2017 OF HON'BLE COURT.
EXHIBIT P9 A TRUE COPY OF JUDGMENT IN WPC 207842-11
DATED 29/2/2012 OF THSI HOB'BLE COURT.
EXHIBIT P10 A TRUE COPY OF BASIC TAX RECEIPT DATED
21/8/2017 ISSUED BY 4TH RESPONDENT.
EXHIBIT P11 A TRUE COPY OF LETTER OF 4TH RESPONDENT DATE
25/5/2018 ISSUED TO THE PETITIONERS.
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APPENDIX OF WP(C) 3467/2017
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF DOCUMENT NO.1307/07 DATED
10-10-2007 OF SRO AGALI.
EXHIBIT P2 TRUE COPY OF DOCUMENT NO.1295-1-2017 DATED
10-10-2007 OF SRO AGALI.
EXHIBIT P3 TRUE COPY OF DOCUMENT NO.1299-1-07 DATED
10-10-2007 OF SRO AGALI.
EXHIBIT P4 TRUE COPY OF APPLICATION DATED 16-7-1987
BEFORE THE SECOND RESPONDENT FILED BY
MARIMOOPAN.
EXHIBIT P5 TRUE COPY OF APPLICATION DATED 16-7-1987
BEFORE THE SECOND RESPONDENT FILED BY VAZHA.
EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS OF THIRD
RESPONDENT DATED 13-10-1995.
EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS OF SECOND
RESPONDENT N. LRG 6-2013/16159/9DATED NIL.
EXHIBIT P8 TRUE COPY OF ORDER OF THIRD RESPONDENT DATED
9.9.2015.
EXHIBIT P9 A TRUE COPY OF THE PROCEEDINGS OF SECOND
RESPONDENT DATED 9-12-2016.
EXHIBIT P10 TRUE COPY OF THE REPORTOF THE ADDITIONAL
TAHSILDAR MANNARGHAT DATED4-1-2012.
EXHIBIT P11 TRUE COPY OF RELEVANT PAGE OF SURVEY WEAR
REGISTER OBTAINED UNDER RTI ACT.
EXHIBIT P12 TRUE COPY OF RELEVANT PAGE OF A&B REGISTER
MAINTAINED IN THE VILLAGE OFFICE, SHOLAYUR.
EXHIBIT P13 TRUE COPY OF THE SURVEY WAR REGISTER
(RELEVANT PAGE) ISSUED BY THE SPECIAL
TAHSILDAR, OTTAPALAM UNDER RTI ACT.
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EXHIBIT P14 A TRUE COPY OF THE SURVEY AND SETTLEMENT
REGISTER ISSUED BY TECHNICAL ASSISTANT SURVEY
AND LAND RECORDS, PALAKKAD.
EXHIBIT P15 A TRUE COPY OF THE PARTITION DEED NO.4238
DATED 18/11/1978
EXHIBIT P16 A TRUE COPY OF DOCUMENT NO.472/95 DATED
27/3/1995
EXHIBIT P17 A TRUE COPY OF DOCUMENT NO.671/1995 OF SRO
AGALI DATED 28/4/1995
EXHIBIT P18 A TRUE COPY OF RELEVANT PAGE OF SURVEY WAR
REGISTER IN THE OFFICE OF SPECIAL TAHSILDAR
OTTAPALAM
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APPENDIX OF WP(C) 1020/2017
PETITIONERS' EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE REGISTERD PARTITION DEED
NO.671/1995 DATED 28.4.95 OF SRO AGALI.
EXHIBIT P2: TRUE COPY OF THE LAND TAX RECEIPT NO.6004848
DATED 19.6.2012.
EXHIBIT P3: TRUE COPY OF THE LAND TAX RECEIPT NO.6004851
DATED 19.6.2012.
EXHIBIT P4: TRUE COPY OF THE POSSESSION CERTIFICATE
ISSUED BY THE 4TH RESPONDENT DATED
27.11.1995.
EXHIBIT P5: TRUE COPY OF THE REPORT DATED 4.1.2012 FILED
BY THE ADDITIONAL TAHSILDAR MANNARKKAD.
EXHIBIT P5(A): TRUE COPY OF THE EXTRACT OF A & B REGISTER.
EXHIBIT P6: TRUE COPY OF THE ORDER PASSED BY THE 5TH
RESPONDENT IN TLA 2058/1987 DATED 9.9.2015.
EXHIBIT P7: TRUE COPY OF THE STATUTORY APPEAL U/S. 7(5)
OF ON TEH ACT BEFORE THE 2ND RESPONDENT ON
NOV.2015.
EXHIBIT P8: TRUE COPY OF THE RELEVANT PAGES OF THE
SETTLEMENT REGISTER OF SHOLAYUR VILLAGE.
EXHIBIT P9: TRUE COPY OF THE ORDER NO.LRG 6/2015/76022/9
DATED 9.12.2016.
EXHIBIT P10: TRUE COPY OF THE KERALA RESTRICTION OF
TRANSFER BY AD RESTORATION OF LAND TO
SCHEDULED TRIBES ACT 1999.
