Raj P vs State Of Kerala

Muralee Krishna, J

This writ petition is filed by the petitioner under Article 226 of the Constitution of India seeking the following reliefs;

''i) issue a Writ of certiorari or any other appropriate Writ order quashing Exts.P9, P10, P11 and P12.

ii) Issue a writ of mandamus or any other appropriate writ or order directing the respondents 4, 5, 6 and 7, not to interfere with the possession of the petitioner over the property covered by Ext P2.''

According to the petitioner, he is a permanent resident at Chinnakanal Village of Udumbanchola Taluk in Idukki District. He is a member of Scheduled Caste and has no residential building of his own. He is in possession of 5 cents of land in Sy. No.34/1 of Chinnakanal Village. The property was originally occupied by one Kurishuhumathu, who had resided in the property along with his family for decades together. After the death of Kurishuhumathu, his wife and children submitted Ext.P1 and P1(b) applications dated 06.12.2010 for assignment of land. The 5 cents of property now in the possession of the petitioner was handed over to him on the basis of Ext.P2 agreement dated 25.04.2019 executed between the petitioner and the children of Kurishuhumathu. On the application of the petitioner, he was included in the beneficiary list of the Kerala Government Life Mission Housing Scheme as per Ext.P3 list approved in the meeting dated 20.12.2019 of the 5th respondent Land Assignment Committee. On 09.03.2020, the 6th respondent Grama Panchayath issued Ext.P4 no objection certificate for carrying out the construction of the house in the property possessed by the petitioner and had disbursed an amount of Rs.40,000/- being the 1st installment for house construction. While so, on 20.04.2020 respondents 8 to 11 trespassed into the property and attempted to prevent the construction. The petitioner was then constrained to file OS No.79 of 2020 before the Munsiff Court, Devikulam seeking a permanent prohibitory injunction against respondents 7 to 11. An interim injunction was granted in favour of the petitioner as per Ext.P6 order dated 22.05.2020 passed in the said suit. On the basis of a complaint filed by the aforesaid respondents, the Village Officer, Chinnakkanal issued Ext.P7 order dated 02.06.2020 directing the petitioner to stop the construction. By issuing Ext.P8 notice dated 02.06.2020, a hearing was conducted by the 4th respondent Tahsildar. After enquiry, the 4th respondent Tahsildar, being the convenor of the 5th respondent Land Assignment Committee passed Ext.P9 order dated 12.06.2020, cancelling the permission granted to the petitioner as per Ext.P3. Based upon the same, the 6th respondent had canceled the building permit issued to the petitioner and it was intimated to him as per Ext.P10 order dated 18.06.2020. Apart from that the 6th respondent issued Ext.P11 notice dated 18.06.2020, demanding the petitioner to demolish the construction carried out in the property. As per Ext.P12 notice dated 24.06.2020, the 6th respondent directed the petitioner to refund the sum of Rs.40,000/- which was already disbursed to him as financial assistance for construction of the residential building. On the basis of a communication issued by the 7th respondent Tribal Extension Officer, the 5th respondent arrived at a conclusion that the property possessed by the petitioner is a tribal settlement area. In fact, before granting permission to the petitioner to construct the building, the Taluk Surveyor had submitted Ext.P13 report before the 5th respondent on 20.09.2019 specifically mentioning that the property is situated in Re-sy. No.183/2 in Block No.8 and the same is Government Puramboke as per the basic tax register. The petitioner had submitted Ext.P14 application dated 17.06.2020 before the 7th respondent seeking the details of the aforesaid property to which Ext.P15 reply dated 29.06.2020 was given by the 7th respondent wherein it is stated that there is no document to show the property as a tribal settlement area. However, it is mentioned in that reply that the property is in possession of the tribal people and there is a temple in that property. But in Ext.P16 report dated 01.06.2020 filed by the Village Officer before the 5th respondent, it has been specifically mentioned that the temple claimed by respondents 7 to 11 is situated 30 meters away from the property in the possession of the petitioner.

The 4th  respondent Tahsildar Udumbanchola Taluk filed counter affidavit producing therewith Exts.R4(a) to R4(c) documents. In the counter affidavit, it is contended that one Chinnappan encroached around five acres of Government land in Sy. No.34/1 of Chinnakanal Thavalam and out of the encroached land, 5 cents has been transferred to the petitioner in the year 2019 for five years by way of an agreement. Chinnappan mentioned the said transfer in Ext.R4(a) complaint dated 15.10.2019 filed by him before the District Collector. On the application of the petitioner, the Village Officer of Chinnakkanal granted a special possession document on 20.12.2019 to the petitioner for inclusion of his name in the beneficiaries list of Chinnakanal Grama Panchayath. But subsequently, some individuals belonging to Scheduled Tribe Muthuvan community submitted a complaint before the 3rd respondent Sub Collector, Devikulam to cancel that document stating that the petitioner obtained that document by playing fraud. A mass petition was also received on 10.06.2020 before the 4th respondent signed by more than hundred persons belonging to Muthuvan tribal settlement. Apart from that the Tribal Extension Officer, Munnar also sent Ext.R4(b) letter dated 09.06.2020 to the 4th respondent informing that the land on which the petitioner has begun construction of a building is part parcel of tribal settlement. Thereafter, the Sub Collector, Devikulam, Tribal Extension Officer, and the 4th respondent Tahsildar visited the land on 02.06.2020 and it was found that the petitioner did not occupy the land as stipulated in the Government Order dated 16.01.2015. As per the Government Order, the applicant should be a resident at the land at least for 17 years. As per the statement made in OS No.79 of 2020 filed by the petitioner, it is evident that he occupied the land only in the previous year. The 4th respondent then conducted a hearing of all the parties concerned on 10.06.2020 with prior notice. In that hearing also, the petitioner admitted that he purchased the land from Chinnappan recently. Then the Taluk Land Assignment Committee decided to cancel the special possession document issued to the petitioner on 20.12.2019. The special possession document issued to the petitioner in respect of 3 cents of land in survey No.34/1 near the Shanmugavilasam area was due to misconception. On coming to know about the mistake, corrective steps were taken after proper verification. The real intention of the petitioner is to venture into a large-scale tourism business. On enquiry, the 4th respondent got information that the aforesaid Chinnappan encroached around 5 acres of Government land in survey No.34/1, near the tribal settlement area known as Chembakathozhu Kudi. From him, the petitioner purchased some areas of land by way of lease and recently made some constructions in the form of tents or portable shelters and now running it as a camp site in the name and style ‘Munnar Jungle Camp’. The application under the Life Mission Scheme is only a cover-up for obtaining licence from Panchayat authorities as a permanent structure is required for it. The petitioner is not entitled to get a special possession document for three cents of land for the purpose of the Life Mission Scheme as per the guidelines issued by the Government. The respondent has already initiated action to evict said Chinnappan and the petitioner from the Government Land in survey No.34/1 of Chinnakanal Village under the provisions of the Land Conservancy Act, 1957 and the Rules made thereunder.

To the counter affidavit filed by the 4th respondent, the petitioner filed a reply affidavit producing therewith Exts.P17 to P21 documents.

The 2nd respondent filed counter affidavit opposing the pleadings in the writ petition, producing therewith Exts. R2(a) to R2(e) documents. It is contended in the counter affidavit that the claim of the petitioner over 5 cents of land in survey No.34/1 of Chinnakanal Village has no legal validity since the person who executed Ext.P2 agreement had no right on the land at the time of execution of that agreement. In Ext.R2(a) complaint dated 15.10.2019 filed by Chinnappan before the District Collector, Idukki against one Murali, it was stated that he permitted the petitioner to occupy a certain portion of the land included in survey No.34/1 of Chinnakanal Village to install portable tent houses. Apart from reiterating the other contentions in the counter affidavit filed by the 4th respondent, it is further stated in the counter affidavit of the 2nd respondent that in order to attract tourists, the petitioner constructed portable tent houses in the land. However, during the pendency of the writ petition, the portable tent houses were removed by the petitioner.

Heard the learned counsel for the petitioner, the learned Senior Government Pleader and the learned counsel for respondents 8 to 11.

The learned counsel for the petitioner submitted that the petitioner had obtained property on the basis of Ext.P2 agreement dated 25.04.2019 executed between the petitioner and the legal heirs of Kurishuhumathu. It is included in the Registry of assignable land under Rule 12A of Kerala Land Assignment Rules, 1964 and it is not a tribal settlement area as contended by the respondents.

On the other hand, the learned Government Pleader submitted that the petitioner is claiming possession over an extent of 5 cents of property out of five acres of Government land in Sy.No.34/1 of Chinnakanal Thavalam, encroached by one Chinnappan, based on an agreement entered into between the petitioner and said Chinnappan. The special possession document dated 20.12.2019 issued by the Village Officer of Chinnakkanal is a mistake and it was later corrected by the officials on getting information about the foul play of the petitioner and Chinnappan. The revenue authorities have already initiated steps to evict the petitioner and Chinnapppan from the government land under the provisions of the Land Conservancy Act, 1957, and the Rules thereunder.

The learned counsel for respondents 8 to 11 argued that the petitioner is claiming possession over some extent of property in a Tribal Settlement Area and it is not assignable under the Land Assignment Act. Moreover, a temple of tribal people is also situated on that property.

From Ext.P2 document, it could be gathered that the petitioner is claiming possession over 5 cents of property on the basis of an agreement executed by Chinnappan, S/o Kurishuhumathu. Ext.R4(a) document produced along with the counter affidavit filed by the 4th respondent is a complaint filed by the said Chinnappan before the District Collector against one Murali. In that complaint, it is stated that Chinnappan gave a portion of his property to the petitioner herein for a period of five years to put up a tent.

Though during arguments the learned counsel for the petitioner vehemently submitted that the property in the possession of the petitioner is not part of the tribal settlement and is situated about 40 meters away from the tribal settlement, Ext.R4(b) letter dated 09.06.2020 issued by the 7th respondent tribal Extension Officer to the 3rd respondent Tahsildar would show that the property claimed by the petitioner is in a tribal settlement area.

Ext.P2 agreement dated 25.04.2019 relied on by the petitioner is not a registered document. The document says that the property having an extent of 4 Acres was in the possession of the parents of the executor of that document namely, Chinnappan.

However, the recitals in the document do not show the derivation of title by Chinnappan or his predecessors. It was styled as a gift deed executed by the said Chinnappan in favour of the petitioner in 200 rupees stamp paper. The possession certificate issued to the petitioner was later cancelled by the revenue authorities, after enquiry, on finding that the said document was obtained by playing fraud. In such circumstances, the petitioner cannot claim any right over the property mentioned in Ext.P2. The petitioner is not entitled to any of the reliefs sought for.

In the result, the writ petition fails and the same is accordingly dismissed.