Brother Thomas K.K. vs The Tahsildar

A.M. Shaffique, J.—W.P.C. No. 12896 of 2010 is filed challenging Ext.P11 order dated 24/03/2010 issued by the 1st respondent and for a direction to the respondents to complete the proceedings as per Ext.P9 notice issued by the Taluk Surveyor for re-survey of properties as requested by the petitioners.

The facts involved in this writ petition would disclose that the petitioners claim to be owners in possession of certain extent of land in Sy.No. 20/1 of Chinnakanal Village. They claimed to have obtained the same as per Exts.P1 to P4 documents. The property lies contiguously. There was an attempt on the part of the officials to trespass into the property. The petitioners filed W.P.C. Nos. 14676 of 2008 and 19593 of 2008 before this Court and directions were issued to issue notice to the petitioners before proceeding further. Petitioners therefore submitted Exts.P5 to P7 applications to the respondent for survey and demarcation of their properties. Since no action was taken, they filed W.P.C. No. 28800/2008 which was disposed by this Court as per judgment dated 03/10/2008 (Ext.P8) directing the 1st respondent to take appropriate steps in accordance with law. According to the petitioner, the 1st respondent conducted survey through the 2nd respondent on 02/01/2009. Though the petitioners were informed that the survey sketch with boundaries will be issued without delay, nothing happened. Petitioners submitted Ext.P10 representation claiming the survey sketch and other particulars. Since no action was taken in the matter, petitioners filed W.P.C. No. 6799 of 2010 which was disposed of by this Court directing the respondents to communicate to the petitioners the outcome of the survey. Thereafter, the petitioners were served with an order dated 24/03/2010 produced as Ext.P11 inter alia stating that petitioners 1 and 3 are actually in possession of property in Sy.No. 495 and the 2nd petitioner is in possession of property in Sy.No. 529.

It is contended that the survey numbers shown in Ext.P11 are re-survey numbers. Re-survey has not been completed in Chinnakkanal village and re-survey records are not in existence in the said village. Petitioners rely upon Ext.P12 report submitted by Dr. V.M. Gopala Menon, I.A.S on 03/05/2007 in which he has reported that no re-survey records are available in Chinnakkanal village.

Counter affidavit has been filed by the 1st respondent inter alia stating that the petitioners are not in possession of any piece of land in Sy.No. 20/1. The land pointed out for survey and demarcation is in Sy.Nos. 495 and 521 of Chinnakkanal village. The survey of the land in question could not be carried out since the land claimed to be in possession of the petitioners had no co-relation with the land covered by documents. The respondents also denied the fact that Sy.Nos. 495 and 529 are re-survey numbers. It is contended that petitioners have no right in respect of any land in Sy.Nos. 495 and 529.

Reply affidavit has been filed producing Ext.P16, a document issued by the Public Information Officer of Central Survey office indicating that as per the records available, Sy.No. 20/1 of Chinnakkanal village has been sub divided as Sub Division Nos. 495, 529, 533 and 534, which is available from the area list of 1966. Ext.P6 further shows that Sy.No. 20 is having an extent of 1693.88 acres and other survey numbers are also shown. It further shows 50.50 acres in Sy.No. 495, 5.26 acres in Sy.No. 529, 0.38 acres in Sy.No. 533 and 6.10 in Sy.No. 534. Altogether, in the remarks column of Ext.P16, it is shown as 20=2004.72.

W.P.C. No. 1758 of 2013 is filed by petitioners 1 and 3 in W.P.C. No. 12896 of 2010. The writ petition is filed seeking for a direction not to assign the properties covered by Exts.P1 to P3 and situated in Sy.No. 495 of Chinnakkanal Village and for a further direction that the petitioners are entitled to notice and an opportunity for being heard in relation to any action taken in respect of properties covered by Exts.P1 to P3. The petitioners had filed this writ petition inter alia contending that during the pendency of W.P.C. No. 12896 of 2010, the respondents trespassed into the property and conducted inspection. They issued lawyers notice dated 15/12/2012 as Ext.P6. It is apprehended that the intention of the respondents is to assign the lands to Adivasis. It is their case that their property can be taken possession only after taking appropriate proceedings under the Land Conservancy Act. That apart, it is contended that unless the contention urged by the petitioners that Sy.No. 495 is the sub division number of Sy.No. 20/1 is considered in accordance with law, it is not open for the revenue authorities to take possession of the said property.

Counter affidavit has been filed by the 1st respondent inter alia stating that as per the Basic Tax Register of Chinnakkanal village and Re-survey Land Register prepared during the period 1975-76, the land is situated in Sy.No. 495 and is described as Government poramboke and so far no assignment has been effected in respect of the said land. The patta Nos. LA 90/71, 96/71, 89/71, 91/71 under which petitioners claim title in respect of Sy.No. 20/1 has nothing to do with the land in occupation of the petitioners. Petitioners are only encroachers into the land and hence the revenue is entitled to take proceedings under the Land Conservancy Act. It is further submitted that the Basic Tax Register which came into force during 1956 has separate entries in connection with the lands in Sy.No. 20/1 and Sy.No. 495.

An additional counter affidavit has been filed further producing Ext.R3(a), litho map to prove that Sy.Nos. 20/1 and 495 are separate entries. The poramboke register is produced as Ext.R3(b) to show that Sy.No. 495 is treated as poramboke . It is further stated that resurvey records have not been implemented in Chinnakkanal Village. Ext.R3(c) is the report and sketch prepared by the Taluk Surveyor on 17/12/2007.

A reply affidavit has also been filed by the 1st petitioner in this case relying upon the information obtained as per letter dated 19/08/2011.

W.P.C. No. 3876/2014 has been filed by the 1st petitioner in W.P.C. No. 12896/2010, W.P.C. No. 3877/2014 has been filed by the 3rd petitioner in W.P.C. No. 12896/2010, W.P.C. Nos. 4137/2014 and 7680/2014 has been filed by two others. All the petitioners are claiming possession in respect of their separate items of property in Sy.No. 20/1 of Chinnakkanal Village inter alia contending that steps have been taken by the revenue department to include their properties under the zero landless project. The contention raised is common. According to them, they have valid title in respect of the property in Sy.No. 20/1 which, on Re-Survey, is coming under Block No. 6, Sy.No. 34 of Chinnakkanal village. Notices have been issued by the Tahsildar under Rule 12(1) of the Kerala Land Assignment Rules offering to assign 9.10 Acres of land in Block No. 6, Sy.No. 34 and calling for objections to be filed. Petitioners have submitted their objections, but as per order dated 17/12/2013, all their objections have been rejected and it was decided to include the said property in the zero landless project. The relief sought for is to quash the notice and orders passed.

No counter affidavit has been filed in these cases. The Learned Special Government Pleader submitted that the consolidated counter filed in W.P.C. No. 1758/2013 would cover the issue on hand as well.

The question involved in these writ petitions are common in nature. The claim of the petitioners is with reference to the property obtained by them in Sy.No. 20/1 of Chinnakkanal Village. Two issues arise for consideration. One is whether the petitioners are in possession of property coming under Sy.No. 20/1 or is it that they are in possession of property in Sy.Nos. 495 or 529, or is it true that Sy.Nos. 495 and 529 are carved out of Sy.No. 20/1. Though such a contention has been denied by the Government, petitioners rely upon Ext.P16 (in W.P.C. No. 12896/2010), to show the separate areas in different survey numbers. The dispute, apparently is a question of fact, which is to be decided after considering the materials available on record. If the respondents are of the view based on Exts.R1(a),(b) and (c) documents, litho map, report and sketch prepared by them (in W.P.C. No. 1758/2013), that the property pointed out by the petitioners are in Sy.No. 495, which is treated as poramboke land, Government is entitled to take appropriate proceedings for taking possession of land. Petitioners however claim title based on certain pattas issued by the Government. The pattas issued, according to them, is with reference to property in Sy.No. 20/1. In so far as the Government disputes the title of the petitioners by contending that they are in possession of Government poramboke land situated in Sy.No. 469, the remedy available for the petitioners is only to approach the Civil court seeking appropriate declaration of title. The issue regarding title cannot be decided in a writ proceedings. Hence I do not think that this Court will be justified in relying upon the averments made in the writ petitions and the reply affidavit to arrive at a finding regarding petitioners'' title to the property.

The petitioners apprehend that the properties in which they have title will be included in the zero landless project as land suitable for assignment. The property involved is in Block No. 6, Sy.No. 34. There is no material to indicate that Sy.No. 34 is the Re-survey Number of Sy.No. 20. At any rate, if the property in the possession of the petitioners are to be taken by the Government, it has to be by invoking appropriate proceedings in accordance with law. If it is Government land, there is no invalidity to the orders passed. Whereas, if the possession of the land vests in any other person, either by way of trespass or claiming right over the same, proceedings has to be initiated under the Land Conservancy Act, 1957 or by invoking the applicable statutory provisions, which shall be done only after complying with the principles of natural justice. If the petitioners are wrongfully dispossessed from the property on the ground that the property is Government land, necessarily they are entitled to seek appropriate relief before a Civil court. Though Section 6 of the Land Assignment Act, 1960 provides a statutory bar for filing a suit in respect of any order passed under the Act, an exception is made in section 6(b) in relation to the land in respect of which the order has been passed is not Government land. The dispute is apparently with respect to the title and possession of the petitioners which is to be adjudicated only by an appropriate proceedings before the Civil court.

Under these circumstances, as far as the petitioners in W.P.C. Nos. 1758/2013, 3876/2014, 3877/2014, 4137/2014 and 7680/2014 are concerned, they could agitate their claim before a Civil court. Hence I do not think that this Court will be justified in interfering with the proceedings initiated by the revenue authorities under the Kerala Land Assignment Rules, 1964.

In regard to the petitioners in W.P.C. No. 12896/2010, their contentions in regard to the title and possession has to be resolved by a Civil suit. However as already indicated, they could be evicted from the property in their possession only in accordance with law and after hearing them in appropriate proceedings.

In the result, these writ petitions are disposed of as under:

"i) In W.P.C. No. 12896/2010, petitioners'' right to challenge Ext.P11 order in a Civil Court is reserved. Petitioners shall be evicted from the property in their possession only after hearing them, in accordance with law.

ii) W.P.C. Nos. 1758/2013, 3876/2014, 3877/2014, 4137/2014 and 7680/2014 are disposed, reserving liberty to the petitioners to challenge the impugned orders before a Civil Court."