RANGASWAMI Vs. STATE OF KERALA

JUDGEMENT

(1.) Both these writ petitions are filed challenging the very same order passed by the District Collector bearing No.DCPKD/9022/2020-LRG3 dtd. 24/3/2022 and therefore both the writ petitions are heard and disposed of by this common judgment. WP(C) No.31047 of 2022

(2.) It is averred that an extent of 4 acres in Survey No.343/1 and 1.72 acres in Survey No.343/3 of Agali Village originally belonged to petitioners' grandfather by name Maruthan, who obtained it from 'Mannarkkad Mooppilstanam' under 'verumpattam'. Petitioners father along with the adjoining tribal land owner Nanjan preferred TLA 244/87 and 208/87 respectively for restoration of land under Sec. 6(2) of the then Kerala Scheduled Tribes (Restriction of Transfer of Land and Restoration of Alienated Land Act), 1975 (hereinafter referred to as Act, 1975) against the 5th respondent. The 3rd respondent by order dtd. 12/10/1995 directed the 5th respondent to deliver the possession of 5 acres of land to Maruthan and 2.5 acres of land to Odiyan Rangan within a period of 30 days subject to payment of compensation to the 5th respondent. Petitioners grandfather Maruthan died in 1988, but the property was not restored inspite of Ext.P1 order. Pursuant to the commencement of Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999 (hereinafter referred to as Act, 1999), the 3rd respondent took steps to reconsider the matter and notice was issued to the parties. On 16/12/2009 the petitioners' father Kadan appeared and stated that his father Maruthan had given on lease 6 acres of land to Thayappa Udayar and wanted the restoration of the same. The 5th respondent was arrayed as opposite party, but she did not appear. On an enquiry conducted by the Agali Village Officer, it is revealed that the 5th respondent transferred the property to the 4th respondent and the 4th respondent was heard on 24/1/2014. He claimed transfer of land belonging to the petitioners as per sale deed No.560/97 of SRO, Agali from the 5th respondent and her children having an extent of 3.67 acres and 2.05 acres from un-surveyed land. As per Ext.P2 order since the transfer of land belonging to the petitioners by 5th respondent to the 4th respondent herein is against Act, 1999, he was directed to give back 5.72 acres in Survey Nos.343/1 and 343/3 of Agali Village to the tribes. The 4th respondent challenged Ext.P2 in appeal before the 2nd respondent. The 2nd respondent set aside Ext.P2 as per Ext.P3 order. In Ext.P3, according to 2nd respondent as per sale deed No.1472/66 and 2895/71, Maruthan and his son Kadan had transferred 3.67 acres in Survey No.343/1 and 2.05 acres in Survey No.343/3 totaling 5.72 acres to Thayappa Udayar, and found that as alienation above 5 acres is illegal, allowed the appeal by retaining 5 acres to the 4th respondent under Sec. 8 of the Act and restoring the excess 72 cents to Kadan, father of petitioners directing payment of compensation to the 4th respondent. It is challenging that part of Ext.P3 to hand over excess 72 cents the 4th respondent has filed WP(C) No.10176/2016. Challenging Ext.P3 petitioners also preferred WP(C) No.22453/2020. Both these writ petitions were heard together and disposed of the same by Ext.P8 common judgment setting aside Ext.P3 order of the 2nd respondent with a direction to reconsider the matter and pass appropriate orders taking into account the observations made by the court in the common judgment. After the remand, the matter was reconsidered by the 2nd respondent and as per Ext.P9 order directed retention of 5 acres of land with the 4th respondent and the remaining 72 cents with the petitioners as earlier decided in Ext.P3. It is challenging Ext.P9 order that the present writ petition has been filed. Aggrieved by the finding in Ext.P9 whereby allotting 72 cents of land to the petitioners, the 4th respondent has preferred WP(C) No.15546/2022.

(3.) The learned counsel appearing for the petitioners in WP(C) No.31047/2022 would contend that Ext.P9 is a non est order as Ext.P1 order passed by the 3rd respondent has not been set aside and therefore the action is without any authority, since the Act 1999 does not empower the authorities to suo motu review any order passed under the Act, 1975. The learned counsel for the petitioners would further contend that Ext.P10 Purchase Certificate cannot be acted upon. Ext.P7 request made by the petitioners for issuance of a copy of the purchase certificate has been declined and later by Ext.P12 communication also petitioners request was declined holding that the files are not available with the office. But to the contrary copy was made available to the 2nd respondent, as evident from Ext.P9 and a copy has been given to the 4th respondent also on an application being made. It is submitted that the reluctant to issue a copy to the petitioners is suspicious and may be for the reason that the same might have been obtained by playing fraud. Even though the 4th respondent has a claim that they obtained property as per Exts.P2 and P3 sale deeds no survey number is seen mentioned in the sale deeds and the properties are shown as un-surveyed land. But in Ext.P8 Purchase Certificate survey number of the property has been clearly mentioned. The learned counsel for the petitioner would further submit that schedule to Exts.P2 and P3 as well as the schedule to Ext.P10 Purchase Certificate reveal that the property is not an agricultural land and contended that the authorities are empowered under the 1999 Act only to deal with properties which are agricultural land. On the contrary, the learned counsel appearing for the 4th respondent, who is the petitioner in WP(C) No.15546 of 2022 submitted that the contention raised by the petitioner cannot be accepted at all in as much as Ext.P2 order has become final and the petitioner has not challenged Ext.P2 in any of the proceedings. The learned counsel for the petitioners further submit that as per the recital in Exts.P4 and P5 sale deeds, it could be seen that the property has been put for agricultural use and therefore, the authorities under the 1999 Act has power to interfere in the matter. Having not challenged Ext.P2 the doctrine of acquiescence will apply as held by the Apex Court in Chairman, State Bank of India and Another v. M.J.James 2021 KHC OnLine 6704. Petitioners would further contend that as per Sec. 5 of act 1999 the transfer of land to an extent of 2 hectares is not invalid.