K.B.AUGUSTINE Vs. STATE OF KERALA

JUDGEMENT

(1.) The grievance projected in this Writ Petition is relating to regularisation of the title acquired by them by way of assignment proceedings pertaining to their ancestral property which is said to have a total extent of 43 cents comprised in Sy.No.212 of Kannan Devan Hills (KDH) Village. The possessory right in respect of the said property is stated to have been acquired by the maternal grandfather of the petitioner in the year 1930. The said maternal grandfather, by Ext.P -1 registered Will of SRO, Devikulam, executed on 6th Dhanu 1124 (ME) i.e., some time in the year 1949, had bequeathed the said possessory rights pertaining to that property to his daughter, Smt.K.B.Cicily, who is the mother of the petitioners. It is made clear in the recitals of Ext.P -1 registered Will that the possessors were enjoying a 'kuthakappattom lease'. Later, it appears that, the mother of the petitioners had made requisite application for assignment of the land. It is pointed out that, assignment was granted by the 3rd respondent initially in respect of 15 cents of land out of the said 43 cents and pursuant to this, Ext.P -2 patta was issued by the Additional Tahsildar, Devikulam, on 16.11.1999 in respect of the said 15 cents of land (6.07 ares). It is also pointed out that mutation was effected in the name of Smt.K.B.Cicily by allotting her Thandaper No.482 and land tax was accepted up to years 2003 -04 as is discernible from Ext.P -3 land tax receipt dated 4.4.2003. It is further pointed out that later, the 3rd respondent -Tahsildar granted assignment in respect of another 15 cents of land, out of the aforestated total extent of 43 cents of land, as per Ext.P -4 order of assignment dated 23.5.2001. Ext.P -4 assignment order would show the boundaries of the said 15 cents of land in Sy.No.212 of KDH Village in Devikulam Taluk. The northern boundary in Ext.P -4 is shown as the land in possession of the applicant and another applicant, etc., and the southern boundary is shown as the property of one Sri.Nazeer and as well as the patta land of Smt.K.B.Cicily. It is urged by the petitioners that the land in possession of the applicant, Smt.K.B.Cicily, shown as northern boundary in Ext.P -4, is the balance unassigned land of 13 cents out of the 43 cents and that the patta land of Smt.K.B.Cicily shown as southern boundary in Ext.P -4 is the 15 cents of land for which patta has been granted as per Ext.P -2. It is pointed out that no further action was taken by the competent authorities to grant assignment of the balance 13 cents out of the 43 cents of land to the petitioners' mother. It is the case of the petitioners that their maternal grandfather had built a residential dwelling in the property covered by Ext.P -2, which forms part of the 43 cents of land, in 1930s and that Ext.P -5 building tax receipt dated 12.2.1964 issued by the Munnar Panchayat would clearly evidence that the building was in existence long ago in that property. Ext.P -6 is yet another building tax receipt issued by the Munnar Panchayat on 5.1.1983 evidencing door number and other details. Exts.P -5 and P -6 show the building number and other details of the said residential building. Smt.K.B.Cicily, the mother of the petitioners, had executed Ext.P -8 registered will dated 1.3.2006 before the Sub Registrar's Office, Devikulam, bequeathing the proprietary rights in respect of the said 43 cents of land in favour of the petitioners herein, who are her sons.

(2.) The land tax in respect of the land covered by Ext.P -2 patta was not being received by the Revenue officials concerned since 2004 -05 and the formal patta was also not issued in respect of the land covered by Ext.P -4 assignment order and that no steps were taken by the authorities concerned for issuing assignment proceedings in respect of the balance 13 cents of land out of the 43 cents of land. Aggrieved by this, the petitioners have preferred Exts.P -7 and P -10 representations. The petitioners were intimated by Ext.P -11(1) dated 20.10.2009 that as per Ext.P -11(2) dated 10.9.2009 issued by the Sub Collector, Devikulam, it has been informed that, on enquiry through the Tahsildar concerned it has been revealed that patta was already granted to Smt.K.B.Cicily, as per Land Assignment Proceedings LA No.101/99 (presumably this refers to Ext.P -2 as that also bears the Land Assignment Proceedings as LA No.101/1999) and that balance extent of 23.5 cents of land has been granted to Smt.CiCily, by way of kuthakapattom lease and that as the assignment proceedings initiated since the year 1999 have been made the subject matter of vigilance enquiry and other pending judicial proceedings, further steps including reception of land tax can be taken only after re - consideration of the matter after finalisation of such enquiry proceedings, etc. It is pointed out that the petitioners' mother, Smt.K.B.Cicily had died on 31.7.2007 and that the petitioners have now inherited the said rights of Smt.K.B.Cicily pertaining to the said 43 cents of land. It is in these facts and circumstances that the petitioners have preferred the instant Writ Petition (Civil) with the following reliefs:

(3.) The 1st respondent Government has filed a counter affidavit dated 28.5.2012 in this matter. It is stated therein that the property in question is comprised in Sy.No. 212 part of KDH Village in Devikulam Taluk with an extent of about 40 cents of property and that this 40 cents of property includes 23.5 cents of land, granted as kuthakappattom land in terms of the Kuthakappattom Proceedings, KP No.1053/1954 of KDH Village, for which lease amount was remitted till the year 1994 -95 and 15 cents of assigned land as per LA No.101/99 of KDH Village. That both these kuthakappattom land and assigned land were sanctioned in the name of Smt.Cicily, the mother of the petitioners. That during 2001, 15 cents of land was got assigned in the name of Smt.Cicily for the land involved in kuthakappattom and the land was assigned, thandapper No.482 and land tax was remitted upto 2004. In order to deal with this averment in para 2 of the counter affidavit, it would be pertinent to note that the total extent of land mentioned in the Writ Petition as also in the recitals in Ext.P -1 registered will and Ext.P -8 registered will is 43 cents of land. The reference to the assignment of 15 cents of land in the name of Smt.Cicily and assignment of Thandapper No.482 has been allotted and permission to receive tax, etc. upto 2003 -2004 could only be for the 15 cents of land covered by Ext.P -2 patta dated 16.11.1999, as reinforced by Ext.P -3 land tax receipt, wherein it clearly shows that Thandapper No.482 and land tax has been received upto 2003 -04. This may not be in relation to the land covered by Ext.P -4, which is the order of assignment issued on 23.5.2001, for which patta was not issued. So the reference to the year 2001 in para 2 of the counter affidavit, presumably, appears to be a mistake, if the documents produced in the Writ Petition are reckoned. This is more so, in view of the clear admission in para 11 of the counter affidavit regarding the issuance of the assignment order dated 23.5.2001 for 15 cents of land, which could only be in relation to Ext.P -4). It is further pointed out that the assignments during 1999 done by a Deputy Tahsildar, while discharging the duties of the Additional Tahsildar, are questionable and are pending consideration of various courts and the Government and that the patta in this case (presumably Ext.P -2 dated 16.11.1999), is also seen issued by the same incumbent Additional Tahsildar, Devikulam. It is stated in para 4 of the counter affidavit that the assignment order issued to the mother of the petitioners for 15 cents of land in kuthakappattom land as per KP 1053/54 of KDH Village was against the Kerala Land Assignment Rules, 1964 and against the relevant provisions of the Kuthakappattom Rules, etc. It is further stated that as per the decision taken in the Regional Lease Conference held in the Collectorate, Ernakulam, on 10.8.2010, strict directions had been given to the Village Officers to renew the kuthakappattom cases. It is further pointed out that as per Anx.R1 (a) interim order dated 12.12.2005 issued by the Division Bench of this Court in W.P.(C).No.32000/2005, assignment of lands and renewal of cases pertaining to the lands taken over by the Government under the Kannan Devan (Resumption of Lands) Act, 1971, have also been stayed until further orders. It is further pointed out that as the land in question claimed by the petitioners for assignment is kuthakappattom land, the same cannot be listed for assignment, etc. It is further pointed out in para 8 of the counter affidavit that all cases of assignments sanctioned during 1999 by the then incumbent Deputy Tahsildar, who was discharging the duties of Addl. Tahsildar, are under consideration of various courts and the State Government and hence a decision regarding the pattas issued in 1999, can be made possible only on the basis of a Government decision. It is also averred that at the time of granting kuthakappattom, the mother of the petitioners was in possession of about 40 cents of land comprised in Sy.No. 212 Part of KDH village and out of this, an extent of 15 cents was assigned to her as per LA No.101/99 and the assignment order was issued to her on 23.5.2001 for the 15 cents of land. It is also reiterated that since the assignment of kuthakappattom land was against the Kerala Land Assignment Rules, 1964 and it is also against the relevant provisions of Kuthakappattom Rules, 1947, building tax receipt, Ext.P -5, etc. is not relevant to prove the possession and right over the land in question, etc. References are made also in para 10 of the counter affidavit regarding the communications in Ext.P -11 series issued by the Addl. Secretary to Government as well as the Sub Collector, Devikulam. Para 11 of the counter affidavit clearly admits about the assignment order issued on 23.5.2001 in favour of the petitioners' mother for the 15 cents of land involved in kuthakappattom proceedings as per KP 1053/54 of KDH Village, etc. It is again contended therein that assignment of kuthakappattom land is against the provisions of the Kerala Land Assignment Rules, 1964. It is further stated in paras 7 and 12 of the counter affidavit that the Land Board Award concerned does not include the name of the petitioners' mother in that award, etc.