Edassery Towers Private Limited v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941** ## **WP(C).No.12799 OF 2012(Y)** ## **PETITIONER/S:** **EDASSERY TOWERS PRIVATE LIMITED, FIRST FLOOR, ADAM SQUARE BUILDINGS, ANGAMALY-683572, A COMPANY INCORPIRATED UNDER THE COMPANIES, ACT, REPRESENTED BY ITS MANAGING DIRECTOR E.J. DAVIS.** **BY ADVS. SRI.T.K.VENUGOPALAN SRI.P.VISWANATHAN (SR.)** ## **RESPONDENT/S:** - **1 STATE OF KERALA, RERPESENTED BY THE CHJIEF SECRETARY TO THE GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE LAND REVENUE COMMISSIONER, OFFICE OF THE LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-695033.** - **3 THE DISTRICT COLLECTOR, KOTTAYAM-686002.** - **4 THE ADDITIONAL TAHSILDAR, KOTTAYAM-686002.** - **5 THE VILLAGE OFFICER, KUMARAKAM, KOTTAYAM DISTRICT686063.** - **6 THE SPECIAL TAHSILDAR (LAND TRIBUNAL), KOTTAYAM-686002.** - **ADDL.R7 ETTUMANOOR DEVELOPMENT COUNCIL, REG.NO.KTM/TC/371/2012 KANDANCHIRA P O,KOTTAYAM PIN-686001** - **ADDL.R8 THE KERALA STATE CUNCIL FOR CHILD WELFARE THYCAUD P O, THIRUVANANTHAPURAM, REP.BY ITS ADMINISTRATOR, DISTRICT COLLECTOR, THIRUVANANTHAPURAM.** **(ADDL.R7 AND R8 IMPLEADED AS PER ORDER IN I.A.NO.13169/12 AND I.A.NO.14882/2012 DATED 09.11.2012.** **WP(C).No.12799/2012 2** **R1 BY ADV. SRI.BLAZE K.JOSE R1 BY ADV. SRI.GEORGE THOMAS MEVADASR.** **R1 BY ADV. SRI.K.JAJU BABU SR. R1 BY ADV. SRI.MANU GEORGE KURUVILLA R1 BY ADV. SMT.RINU JOSE R1 BY SMT.M.U.VIJAYALAKSHMI, SC, KSCCW R1-6 BY SRI.RANJITH THAMPAN, ADDL.ADVOCATE GENERAL R7 BY ADV. SMT.LATHA ANAND R7 BY ADV. SRI.JOSEPH SEBASTIAN (PARACKAL) R7 BY ADV. SRI.S.VISHNU (ARIKKATTIL)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-072019, THE COURT ON 18-10-2019 DELIVERED THE FOLLOWING:** **WP(C).No.12799/2012 3** ## **JUDGMENT** Dated this the 18[th] day of October, 2019 In this writ petition, the petitioner, a private Ltd. company questions the proceedings of the revenue authority in cancelling an entry regarding the nature and description of the land comprised in Survey Nos.45/1, 2, 3 and 4 in Kumarakam Village of Kottayam Taluk. In the basic tax register maintained under the Kerala Land Tax Act, 1961, the land was shown as _pandaravaka pattom._ It has now been changed to sirkar _puramboke._ The petitioner also seeks a declaration to the effect that the lands referred to above are _pandaravaka pattom_ lands and private holdings belonging to the petitioner. 2. An enquiry appears to have been conducted as to the legality of issuance of the purchase certificate by the Land Tribunal in respect of the aforesaid land which has been claimed as _kayal puramboke_ and a non-assignable land. The Land Tribunal by different proceedings in S.M.Nos.182/1997 and 181/1997 issued pattayam to **WP(C).No.12799/2012 4** Abey Ittoop and Joy Ittoop in respect of the aforesaid lands. An enquiry was also initiated by the District Collector based on the directions issued by the Land Revenue Commissioner. The District Collector, finding that it was a _kayal puramboke_ , directed the Additional Tahsildar to change the entry in the thandaper register as Government _puramboke_ in the place of the aforesaid persons and report the matter to the Land Revenue Commissioner. Accordingly, the Tahsildar effected changes. In the proceedings, it was noted that the order of the Land Tribunal was interfered by the Appellate Authority, Alleppey, at the instance of the persons who claimed to be the owners of the property. It is to be noted that the Appellate Authority interfered with the order of the Tribunal mainly taking note of the fact that the holders of the property failed to prove that they were tenants of the property. 4. The petitioner submitted that the property in question was purchased from the aforesaid persons through a registered sale deed. The petitioner points out to a civil revision petition filed before this Court by the aforesaid Joy Ittoop and Abey Ittoop challenging the **WP(C).No.12799/2012 5** order of the Appellate Authority and during the pendency of the matter, a settlement was arrived at between the parties before the Lok Adalath. The award passed by the Lok Adalath organised by the Kerala High Court Legal Services Committee is produced as Ext.P10. Before the Lok Adalath, the holder of the purchase certificate (which had been interfered by the appellate authority) compromised the matter with the persons claiming to be the owners of the land. By virtue of the said compromise, the parties agreed to allow the revision by setting aside the orders passed by the Appellate Authority under the Land Reforms Act, 1963. That means, the original order of the Land Tribunal was allowed to be restored consequent upon the award passed by the Lok Adalath. However, the Government was not a signatory to the compromise petition. 5. Perhaps, a brief factual ancestry of the title claimed by the petitioner would be necessary to decide this issue. The petitioner claims that it was a _pandaravaka pattom_ land held by Itty Kurian Karumicheril, who executed a registered Will No.24/1946 dated 27.2.1946 and the property was given to Joy Ittoop and John **WP(C).No.12799/2012 6** Abraham, who are the predecessor-in-interest of the purchase certificate holders. The petitioner, referring to the entries in the thandaper register argued that this land was given on _pattom_ and therefore, Itty Kurian Karumicheril had interest in the land. The case of the petitioner is that since the Land Tribunal had given purchase certificate through the proceedings initiated under the Land Reforms Act, that purchase certificate cannot be set at naught indirectly invoking other statutory provisions. 6. Before considering the grounds of challenge made in this writ petition it is necessary to have an understanding of various tenures relating to the land in Kerala, particularly, in the Travancore area. From ancient days, the lands in Travancore had been held in small parcels by _ryots_ . They are, however, not the owners of the land. The land belonged to a few individuals or to the _Sirkar_ of Travancore, which was a State. The State also held the property like that of individual. The largest extent of such _jenmom_ lands were in the hands of _Sirkar_ . (See page 1 of the Travancore Jenmi and Kudiyan Regulation 1071 by S.Velu Pillai, 1933 edition.). The Travancore **WP(C).No.12799/2012 7** State was under the control of the Travancore Royal Family. The Royal Proclamation 1867 (ME 1042) of the kingdom was considered as the magna carta protecting the rights of ryots. The royal proclamation protected the tenants from illegal eviction by the _jenmi_ and protected tenants from holding the land so long as they pay the stipulated rent and other customary dues. Next in line is the Regulation, Jenmi-Kudiyan Regulation of 1071 (1896 A.D.). This is intended to regulate the _jenmi - kudiyan_ relationship and also to provide provision for speedy realisation of rent from the tenants. It was amended by the Amendment Regulation 1108 . 7. The Jenmi and Kudiyan (Amendment Regulation ME 1108) was introduced to make fundamental changes and to regulate relative rights of Jenmi and Kudiyan. The _jenmom_ land has been defined under the Regulation to exclude certain types of land which includes _Sirkar_ land. This enactment was brought out for the speedy realization of _jenmis_ dues and to confer power upon the District Munsiffs and Zilla Judges to try such disputes by invoking summary jurisdiction. **WP(C).No.12799/2012 8** 8. The Kerala Land Reforms Act, 1963 (for short, the 'Land Reforms Act') as its preamble declare is a comprehensive legislation relating to the land reforms in the State of Kerala. This was brought in after its predecessor enactment, the Kerala Agrarian Relations Act, 1960 and the Kerala Ryotwari Tenants and Kudikidappukars Protection Act, 1962 were struck down by the Apex Court as well as the High Court respectively. 9. The Land Reforms Act brought fundamental changes between the land owner and the tenant. It conferred right on cultivating tenant to purchase the rights of land owners and intermediaries. The Land Reforms Act also contains economic dimension on socialist principles to restrict the holdings of the land by fixing a ceiling limit. The excess land after fixing the ceiling limit is distributed to landless agriculturists etc. Landlord means a person under whom a tenant holds and includes a land owner (Section 2(29) of the Land Reforms Act). Land owner has been defined as the owner of land which includes a landholder holding Sree Pandaravaka land. Chapter-II of the Land Reforms Act is related to the provisions **WP(C).No.12799/2012 9** regarding tenancies and exemptions. A tenant conferred a right to purchase a land under Section 53 as well as under Section 72B of Chapter-II of the Land Reforms Act. Section 53 of the Land Reforms Act is related to the right of the tenant, who is entitled to fixity of a tenure under Section 13. Section 72 altogether set out a different procedure. Section 72 deals with the land belonged to private landlords and intermediaries' whose right vested with the Government. This land is not treated as a Government land though the land is vested with the Government. The cultivating tenant has got right for assignment of the land vested in the Government under Section 72. This land as referred therein is not the land referred in Section 3 of Chapter-II. Section 3 states that nothing in the ChapterII would apply to the lease of land belonging to or vested in the Government of Kerala. Explanation- 1A states that the lands, the right, title and interest in respect of which have vested in the Government under sub-section (9) of Section 66 or Section 72, shall not be deemed to be lands belonging to or vested in the Government of Kerala for the purposes of this clause. Thus, it is clear that **WP(C).No.12799/2012 10** Chapter-II carves out exemption to the Government land and takes out of the Government land out of the ambit of Chapter-II. Keeping the object and other provisions of the Act, it is clear that the Land Reforms Act never intended to regulate any relationship between the Government land and the tenant of such holdings. The Act, therefore, only intends to regulate the relationship between the private land owner and the tenant. 10. _Pandaravaka_ land is a Government land. After referring to various nature of _Sirkar_ land, T.K. Velu Pillai, the eminent author on Travancore State Manual refers to _pandaravaka_ lands as follows: “I. (a) Pandaravaka lands: As already mentioned, they are lands of which the State is the owner or landlord and all rights of the ryot are derived from the Sirkar. The tenant who is merely a tenant-at-will became by the Pattom Proclamation of 1040 practically the owner of the land subject to the payment of Government tax. Of the various types of Registered lands, pandaravaka lands alone increase consequent on the expansion of cultivation and conversion of non-pandaravaka tenures. Escheats and relinquishments of whatever description of land would in strict law go to augment them. The Devaswom Proclamation of 1097 has converted the whole of the Sirkar devaswomvaka lands into pandaravaka lands.” **WP(C).No.12799/2012 11** 11. The admitted facts in the case in hand would go to show that the land in question is a _pandaravaka_ land. The royal proclamation protects the tenant against unauthorized eviction. The petitioner claims to be in possession through the predecessor-ininterest long after the Royal Proclamation came into force. The earliest title referred to in the pleadings was of the year 1946 and the Will executed by Itty Kurian in favour of Ittoop, the predecessor-ininterest of Joy Ittoop and Abey Ittoop. I need not examine the question whether the petitioner's predecessor-in-interest was a tenant or not as the present dispute is only confined to reclassification of the land. The petitioner has a prayer that the land in question is a private holding. This is not legally sustainable for the reasons mentioned above. Further, the petitioner had not produced any document to show that their interest in the land has become that of an owner through any manner recognized under law. 12. The petitioner's argument proceeds to claim that it is a private land based on the purchase certificate issued by the Land Tribunal. The thandaper register produced by the petitioner before **WP(C).No.12799/2012 12** this Court clearly mentions that the land is _pandaravaka pattom_ (Government lease). The Land Tribunal has no jurisdiction to issue a purchase certificate to such land as the land is an exempted land under Chapter III of the Land Reforms Act. Nobody has a case that this land is a land vested in the Government under Section 72. To exercise jurisdiction to issue a purchase certificate to such land, the jurisdictional facts must exist, that is to say, the land must be a land vested with the Government by divesting the right, title and interest of the land owner or intermediary as referred to in Section 72 of the Land Reforms Act. If the land is not the one on which jurisdiction can be exercised by the Tribunal, then the purchase certificate issued will have to be treated as null and void. There is no requirement under law to challenge such issuance of purchase certificate as the purchase certificate was issued by the Tribunal which lacks inherent jurisdiction. In legal proceedings, the challenge can be made collaterally by pointing out nullity of such order and purchase certificate. See the judgments of the Apex Court in **Kiran Singh and others v. Chaman Paswan and others [AIR 1954 SC 340]** , **WP(C).No.12799/2012 13** **Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Others [1970 (1) SCC 670] and Rafique Bibi (Dead) by LRS. v.** . **Sayed Waliuddin (Dead) by LRS. and Others[(2004) 1 SCC 287]** 13. The petitioner's case itself is that the land in question was a _pandaravaka_ land. The compromise entered into between the private parties in the Lok Adalath would only bind the parties who entered into the compromise. The decision of the Lok Adalath based on such compromise cannot create a title which otherwise does not exist. At the best, the compromise can be relied to affirm the transfer of interest from one person to another not amounting to transfer of ownership. The title still vests with the Government. 14. The Government land can only be assigned in the manner known under law like the Land Assignment Act, 1960. 15. In the light of the finding that the purchase certificate issued by the Tribunal is null and void, the question of declaring that the land is a private holding does not arise. So far no eviction proceedings have been initiated. To what extent the petitioner is having an interest which is protected under the law can be decided **WP(C).No.12799/2012 14** only in an appropriate proceedings. The present attempt of the Government is only to classify the land based on valid reasons. In the light of the above discussions, the writ petition is only to be dismissed. Accordingly, it is dismissed. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** ln **WP(C).No.12799/2012 15** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED 4051/2005 OF KOTTAYAM SUB REGISTRY. EXHIBIT P2 DOCUMENT NO.802/2010 OF KOTTAYAM SUB REGISTRY. EXHIBIT P3 TRUE COPY OF DOCUMENT NO.803/2010 OF KOTTAYAM SUB REGISTRY. EXHIBIT P4 TRUE COPY OF DOCUMENT NO.603/2006 OF KOTTAYAM SUB REGISTRY. EXHIBIT P5 TRUE COPY OF CRP NO.610/2007. EXHIBIT P6 TRUE COPY OF CRP NO.718/2007. EXHIBIT P7 TRUE COPY OF CRP NO.768/2007. EXHIBIT P8 TRUE COPY OF THE ORDER PASSED IN CRP NO.718/07 ON 17.9.2009. EXHIBIT P9 TRUE COPY OF AWARDS ALONG WITH THE COMPROMISE PETITION PASSED IN CRP NO.610/07.** - **EXHIBIT P10 TRUE COPY OF AWARDS ALONG WITH THE COMPROMISE PETITION PASSED IN CRP NO.718/07.** - **EXHIBIT P11 TRUE COPY OF AWARDS ALONG WITH THE COMPROMISE PETITION PASSED IN CRP NO.768/07.** - **EXHIBIT P12 TRUE COPY OF COMMUNICATION DATED 28.10.2009. EXHIBIT P13 TRUE COPY OF OLD THANDAPPER NO.163 OF KUMARAKAM VILLAGE.** - **EXHIBIT P14 TRUE COPY OF THE OLD THANDAPER NO.164 OF THE SAME VILLAGE.** - **EXHIBIT P15 TRUE COPY OF THANDAPER NO.1960 OF KUMARAKAM VILLAGE.** - **EXHIBIT P16 BASIC TAX REGISTER OF KUMARAKAM VILLAGE IN RESPECT OF LAND IN SY.NOS.185/8/1.** **WP(C).No.12799/2012 16** - **EXHIBIT P17 TRUE COPY OF REPORT DATED 27.4.2012 SENT BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.** - **EXHIBIT P18 PROCEEDINGS ON 29.3.2012 OF THE 5TH RESPONDENT.** - **EXHIBIT P19 SERIES, TRUE COPY OF TAX RECEIPT EVIDENCING THE PAYMENT OF LAND TAX BY THE PETITIONER.** - **EXHIBIT P20 TRUE COPY OF ORDER DATED 30.4.2012 ISSUED BY THE 6TH RESPONDENT.** - **EXHIBIT P21 TRUE COPY OF THE WILL EXECUTED BY ITTY KURIEN ON 27.2.1946 AND REGISTERED AS 24 OF 1946.** - **EXHIBIT P22 TRUE PHOTOGRAPHS SHOWING THE REMOVAL OF SAND BY TIPPER LORRIES AND THE NEW WIRE FENCING AND COMPOUND. (TRUE COPY OF BASIC TAX REGISTER RECEIVED FROM THE VILLAGE OFFICE. IN CM.APPL.2437/2017).** - **EXHIBIT P23 TRUE COPY OF LETTER DATED 5.7.2012 FROM THE VILLAGE OFFICER, KUMARAKAM.** - **EXHIBIT P24 TRUE COPY OF FIELD SKETCH SHOWING THE LIE OF THE PROPERTIES OBTAINED FROM THE CENTRAL SURVEY OFFICE, THIRUVANANTHAPURAM.** - **EXHIBIT P25 TRUE COPY OF CO-RELATION STATEMENT SHOWING THE OLD SURVEY NUMBERS AND THE NEW SURVEY NUMBERS ISSUED BY THE VILLAGE OFFICER, KUMARAKOM.** ## **RESPONDENT'S/S EXHIBITS:** **ANNEXURE R4A TRUE COPY OF THE ORDER OF THE APPELLATE AUTHORITY.** **ANNEXURE R4B TRUE COPY OF THE RELEVANT PAGE OF THE SETTLEMENT REGISTER.** //TRUE COPY// P.A.TO JUDGE