Francis Kelly v. Commissioner of Land Revenue and Others (WP(C).No.12323 of 2017)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 21ST DAY OF JUNE 2018 / 31ST JYAISHTA, 1940** **WP(C).No. 12323 of 2017** **PETITIONER(S):** **-------------** **FRANCIS KELLY, AGED 76, S/O THOMAS, KUDILLINGAL (H), 81, VATTAPARAMBU ROAD, KALOOR, ERNAKULAM DISTRICT, COCHIN-17.** **BY ADVS.SRI.D.AJITHKUMAR SRI.B.KRISHNA MANI** **RESPONDENT(S):** **-------------** **1. COMMISSIONER OF LAND REVENUE COMMISSIONERATE OF LAND REVENUE, OPP. MUSEUM, THIRUVANANTHAPURAM-695001.** **2. DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, KAKKANAD, ERNAKULAM DISTRICT, COCHIN-682030.** **3. REVENUE DIVISIONAL OFFICER FORT COCHIN, ERNAKULAM-682001.** **4. ADDITIONAL TAHSILDAR KANAYANNUR, COCHIN-682011.** **5. VILLAGE OFFICER ELAMKULAM COCHIN-682011.** **6. KOCHI MUNICIPAL CORPORATION PB NO.1016, COCHIN, ERNAKULAM DISTRICT KERALA STATE, PIN:682011, REPRESENTED BY ITS SECRETARY.** ## ***ADDL. R7 TO R9 IMPLEADED** ## ***ADDL.R7** **T. VINAYAKUMAR, AGED 58 YEARS, S/O.LATE. PROF.SINKARAPANIKER, VELLATT HOUSE, VENNALA P.O. KOCHI-682028** ## **WP(C).No. 12323 of 2017 (M)** ## ***ADDL.R8** ## **V.BALACHANDRAN, AGED 56 YEARS,** **S/O.VISWANATHAN, RESIDING AT CC/37/1089, KUMARANASAN ROAD, KOCHI-682017** ## ***ADDL.R9** **SHEELA LINO, W/O.LINO JACOB, RESIDING AT ARAKKAL HOUSE, THRIKARNAVATTOM DESOM, KOCHI -682035** **(ARE IMPLEADED AS PER ORDER DATED 29.05.2018 IN IA NO.6643/2018)** **R6 BY SRI.V.S.SREEJITH,SC,COCHIN CORPORATION SRI.P.K.SOYUZ,SC,COCHIN CORPORATION** **R7-R9 BY ADV. SRI.M.S.UNNIKRISHNAN R7-R9 BY ADV. SRI.JITHIN PAUL VARGHESE** **BY SPL.GOVERNMENT PLEADER SRI.MOHAMMED ANSAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-06-2018, THE COURT ON 21-06-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 12323 of 2017 (M)** ## **APPENDIX PETITIONER(S)' EXHIBITS:** ## **------------------------** **EXHIBIT P1: TRUE COPY OF THE ORDER NO.P.10972/11/K. DIS(B) DATED 7.9.2012 OF THE 3RD RESPONDENT. EXHIBIT P2: TRUE COPY OF THE FORM A DECLARATION ALLEGED TO BE SIGNED BY THE PETITIONER DATED 17.8.1999. EXHIBIT P3: TRUE COPY OF THE FORM B DECLARATION ALLEGED TO BE SIGNED BY THE PETITIONER DATED 17.8.1999. EXHIBIT P4: TRUE COPY OF THE APPEAL AGAINST EXHIBIT P1 ORDER OF THE 3RD RESPONDENT BEFORE THE IST RESPONDENT UNDER SECTION 4A OF THE KERALA LAND RELINQUISHMENT ACT. EXHIBIT P5: TRUE COPY OF THE ORDER NO.L11-1316/2016/K.EIS DATED 23.10.2016 OF 2ND RESPONDENT. EXHIBIT P6: TRUE COPY OF THE REVISION PREFERRED BY PETITIONER BEFORE THE IST RESPONDENT AS CONTEMPLATED UNDER SECTION 4B OF THE KERALA LAND RELINQUISHMENT ACT 1958. EXHIBIT P7: TRUE COPY OF THE JUDGMENT IN WPC NO.38086 OF 2016. EXHIBIT P8: TRUE COPY OF THE ARGUMENT NOTE TO THE IST RESPONDENT. EXHIBIT P9: TRUE COPY OF THE COPES OF HIS PASSPORT, DRIVING LICENSE, IDENTITY CARD OF THE KERALA SENIOR CITIZENS FORUM AND PASSBOOK OF THE PEOPLE'S URBAN COOPERATIVE BANK LIMITED FOR SHOWING HIS SIGNATURE AS SPECIMEN SUBMITTED ALONG WITH THE EXHIBIT P8. EXHIBIT P10: TRUE COPY OF THE AFFIDAVIT OF SRI.P.STEEPHEN FOR THE SAME DATED 27.3.2017. EXHIBIT P11: TRUE COPY OF THE ORDER NO.LR(K4)-48916/16 DATED 9.3.2017 OF IST RESPONDENT. RESPONDENT(S)' EXHIBITS: ----------------------EXHIBIT P7 A TRUE COPY OF THE PARTITION DEED NO. 1803/1974 SRO ERNAKULAM EXHIBIT P7 B TRUE COPY OF THE SETTLEMENT DEED NO. 1191/2000 SRO ERNAKULAM** ## **WP(C).No. 12323 of 2017 (M)** **EXHIBIT P7 C TRUE COPY OF THE SALE DEED NO. 4586/2001 OF SRO ERNAKULAM SRO ERNAKULAM EXHIBIT P7 D TRUE COPY OF THE 168 OF 2003 SRO ERNAKULAM EXHIBIT P7 E TRUE COPY OF THE APPLICATION FOR RELINQUISHMENT OF LAND DATED 04.02.2017 EXHIBIT P7 F TRUE COPY OF THE SURVEY PLAN PREPARED BY THE SPECIAL SURVEYOR REGARDING THE PROPERTY SURRENDER BY THE PETITIONER EXHIBIT R6(a) TRUE COPY OF THE FORM B (DECLARATION) AND THE SKETCH DATED 17.08.1999 PREPARED BY THE SUVEYOR EXHIBIT R6(b) COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER, FORTKOCHI DATED 7.9.2012 EXHIBIT R6(c) THE FORM A DECLARATION AND THE SKETCH PREPARED BY THE SPECIAL SURVEYOR DATED 20.2.2017** **//TRUE COPY//** **P.A. TO JUDGE** **dlk/21/6/18** ## SHAJI P. CHALY, J. ----------------------------------- W.P.(C). No.12323 of 2017 ------------------------------------ Dated this the 21[st] day of June, 2018 ## JUDGMENT This writ petition is filed by the petitioner seeking to quash Ext.P11 issued by the first respondent dated 9.3.2017 upholding the proceedings of the third respondent dated 7.9.2012 under the provisions of the Kerala Land Relinquishment Act 1958 and the appended Rules, 1958(hereinafter referred to as 'Act and Rules,1958). 2. Brief material facts for the disposal of the writ petition as is projected by the petitioner are as follows:- Petitioner is the owner of 8 cents of property comprised in Survey No. 170/1, 2 of Elamkulam Village situated by the side of Thammanam-Pullepadi road. The third respondent as per Ext.P1 order dated 7.9.2012 passed an order of relinquishment W.P.(C). No.12323 of 2017 2 of a portion of the land specified above in accordance with the provisions of the aforesaid Act and Rules along with other properties enjoyed by other persons. It is the case of the petitioner that, the relinquishment as per Ext.P1 is allegedly 3.400 cents belonging to the petitioner. Aggrieved by Ext.P1, petitioner preferred appeal before the second respondent, who has passed Ext.P5 order dismissing the appeal, and thereafter only petitioner has preferred revision before the first respondent and has suffered with Ext.P11 order. According to the petitioner, Exts.P1, P5 and P11 orders are illegal, irregular and arbitrary, liable to be set aside by this Court. It is also submitted, the property mentioned as serial No.7 in Ext.P1 belonging to the petitioner was never surrendered to the Government under Act, 1958. It is further submitted, petitioner never submitted application for relinquishment of his land W.P.(C). No.12323 of 2017 3 under Rule 4 of the Rules,1958. Under Rule 7 of Rules 1958, the RDO should forward the application obtained under Rule 4 to the Tahsildhar for inspection and other consequential actions. However, in the instant case no enquiry notice was given to the petitioner by any revenue officer. It is also stated, petitioner had never sign in Form A and B declarations. Exts.P2 and P3 declarations alleged to be signed by the petitioner dated 17.8.1999 are not that of the petitioner, which is substantiated by Ext.P9 specimen signature. Therefore, according to the petitioner, the basic documents, namely, Exts.P2 and P3 are fabricated by the then officials of the respondents to achieve their oblique motives, however, without taking into account all these aspects the authorities have passed orders by which substantial rights of the petitioner over the property is lost. 3. A statement is filed by the 6[th] respondent refuting the W.P.(C). No.12323 of 2017 4 claims and allegations raised by the petitioner. Among other contentions it is stated that, petitioner has surrendered 1.37 Ares of land from out of his property having an extent of 16 cents situate in Survey No.170/2 of Elamkulam Village for the widening of Thammanam-Pullepadi Road. Petitioner has executed 'A' form as per Rule 3 and 'B' form (declaration) as per Rule 7 of Rules, 1958. A copy of form B and the sketch prepared by the surveyor is produced as Ext.R6(a). The application and declaration was submitted on 17.8.1999, thereafter, as per proceedings dated 7.9.2012, the third respondent converted the property provided by 36 owners in accordance with the provisions of the aforesaid Act and Rules and has declared as 'puramboke' (Ext.P1). Thereafter, petitioner approached this Court claiming compensation contending that, he has not given free surrender of the property by filing WP(C)No.24411/2015 W.P.(C). No.12323 of 2017 5 and as per judgment dated 12.8.2015, petitioner was directed to prefer appeal before the District Collector. Thereafter, District Collector dismissed the appeal as per Ext.P5 holding that, petitioner is not entitled to claim any right over the property having an extent of 1.37 Ares in Survey No.170/2. 4. It is further submitted that, while so, it is evident that, petitioner along with his daughter Revoli Abraham executed sale deeds in favour of one Vinayakumar, Balachandran and Sheela Lino bearing Nos. 4586/2001 and 168/2003, conveying an extent of 5.80 Ares in Survey No.170/1,2 including the property provided to the 6[th] respondent Corporation. According to the 6[th] respondent, petitioner has conveyed the self same property, which was surrendered to the 6[th] respondent, and later converted as puramboke land, and therefore, the action of the petitioner is W.P.(C). No.12323 of 2017 6 illegal. Later, when the subsequent purchaser realised the illegality as is pointed out above, they have executed free surrender of the property, purchased from the petitioner for valuable consideration, to the Corporation on 4.12.2017, evident from form A declaration and the sketch prepared by the Special Surveyor, namely, Ext.R6(c) dated 20.2.2017. It is also submitted that, from out of the property having the extent of 137 Sq. meteres given free surrender to the 6[th] respondent, 80 sq. meteres of property is sold to respondents 7 to 9, and therefore, the petitioner who has approached this Court with unclean hands is not entitled to get any relief. Respondents 7 to 9 got themselves impleaded in the writ petition by filing IA No.6643/2018 and has filed a detailed counter affidavit narrating the facts and circumstances involved in the subject matter. It is stated thereunder that, this writ petition is filed by W.P.(C). No.12323 of 2017 7 the petitioner with distorted facts, and raising various untenable contentions in respect of 1.433 cents of property already surrendered for Thammanam-Pullepadi road. It is also submitted that, the claim raised by the petitioner in respect of the aforesaid parcel of land situate in Survey No.170/2 of Elamkulam Village now lying as part and parcel of Thammanam-Pullepadi road is incorrect. Petitioner obtained property having an extent of 16 cents made out of 7.400 cents situate in Survey No.170/1 and 8.600 cents in Survey No.170/2 of Elamkulam Village comprised in 'B' schedule of Ext.R7(a) partition deed No. 1803 of 1974 of SRO Ernakulam. A building bearing Door No. XXIX/1659 of Corporation of Kochi was also situated in the said property. While the aforesaid 16 cents was owned and possessed by the petitioner he released right over property having the extent of 1.433 cents of property to W.P.(C). No.12323 of 2017 8 Corporation of Kochi by way of free surrender. Petitioner had duly complied with statutory formalities in the matter of land relinquishment and executed necessary applications for relinquishment of land in accordance with Rule 3 and Rule 7 of Rules, 1958. Thereupon, the 6[th] respondent has agreed to provide relaxation in the matter of FAR for construction of building as per the provisions in the Kerala Municipality Building Rules. Thereafter, as per Ext.R7(b) settlement deed No.1191/2000, petitioner conveyed property having an extent of 7.720 cents to his daughter Mary Revoli Abraham. Accordingly, petitioner's daughter became vested with the aforesaid extent of property situate on the north eastern corner of the entire property. Ext.R7(b) clearly states that, petitioner had retained property on the western side of Ext.R7(b) property, and that, the northern boundary is a road. Thereafter petitioner W.P.(C). No.12323 of 2017 9 along with his daughter sold property having an extent of 6.175 cents to respondents, evident from Ext.R7(c) sale deed bearing No. 4586/2001 of SRO Ernakulam. In Ext.R7(c) petitioner has shown northern boundary of the property conveyed to the respondents as per Ext.R7(c) as 1.433 cents of land, surrendered to Corporation of Kochi for road purposes. Thus it is evident that, the property having the extent of 1.433 cents against which the petitioner has raised the claim is already surrendered to the Corporation of Kochi. Thereafter, as per sale deed No.168/2003, petitioner conveyed the remaining property also to respondents 7 to 9, evident from Ext.R7(d). In Ext.R7(d), the northern boundary shown as Corporation road (P T Road). Thus it is evident that, the property is already given free surrender to the Corporation of Kochi and the road was formed by the time when Ext.R7(d) sale deed was executed. It is also W.P.(C). No.12323 of 2017 10 submitted that, all the properties acquired by the petitioner as per partition deed No.1803/1974 and original release deed No.1800/1974, by virtue of which petitioner acquired the property were sold to these respondents as per Exts.R7(c) and R7(d), and therefore, it is evident that, petitioner never had any right over the property after the execution of the said sale deed. Therefore, according to the said respondents, petitioner is not having any property situate in the area in question. Other contentions are also raised by the respondents to the effect that, the contentions raised by the petitioner in the writ petition are not at all true or correct. It is also stated that, the respondents have surrendered an extent of 80 sq. metere in Survey No. 170/1 part of Elamkulam Village to the 6[th] respondent, evident from Ext.R7(c) and the survey plan prepared by the Special Surveyor in respect of the surrender W.P.(C). No.12323 of 2017 11 made by the petitioner is produced as Ext.R7(f). According to the respondents, the property already surrendered by the petitioner is included in Exts.R7(c) and R7(d) sale deeds and the consideration for the sale also has been received from these respondents. 5. While matters being so, petitioner has made amendment to the writ petition raising certain additional facts and grounds and thus seeking additional relief to declare that the provisions of the Kerala Land Relinquishment Act, 1958, are inapplicable and that the proceedings initiated in terms of the above Act are void ab initio. A further direction is also sought directing respondents 1 to 6 to proceed in accordance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. W.P.(C). No.12323 of 2017 12 6. I have heard learned counsel for the petitioner, learned senior Government Pleader, learned standing counsel for the 6[th] respondent Corporation, learned counsel for respondents 7 to 9 and perused the pleadings and documents on record. 7. The sole question to be considered by this Court is whether any manner of interference is warranted to Ext.P11 order passed by the Land Revenue Commissioner under the provisions of the Kerala Land Relinquishment Act and Rules, 1958, and the petitioner is entitled to any consequential relief sought for, as is pointed out above. From Ext.P11 what I could gather is that, the entire issues raised by the petitioner in respect of the relinquishment of a portion of the property, execution of various deeds by the petitioner in favour of respondents 7 to 9 were all taken into account and an order is passed holding that the action initiated by the respondents in W.P.(C). No.12323 of 2017 13 accordance with Exts. P2 and P3 form 'A 'and 'B' of the Kerala Land Relinquishment Act and Rules, and the order passed by the District Collector in appeal are in order and legal. 8. Learned counsel for the petitioner vehemently contended that petitioner has only executed form 'A' and 'B', evident from Exts.P2 and P3 to the officials of the Corporation, and therefore, Ext.P1 order passed by the Revenue Divisional Officer in accordance with the provisions of the Act and Rules, 1958 cannot be sustained under law. In my considered opinion, Ext.P1 order is passed by the first respondent, who is the authority constituted under Act, 1958 to pass such orders. It is evident from Exts.P2 and P3 form 'A' and 'B' that, they have issued on 17.8.1999. Apparently, possession is also taken from the petitioner on the very same date itself. Learned counsel for the petitioner has advanced an argument that without W.P.(C). No.12323 of 2017 14 complying with any of the procedure contemplated under law, Ext.P1 order is passed by the RDO in a haste, however, it is evident that, Ext.P1 order is passed by the RDO three years after petitioner has executed Exts.P2 and P3, therefore, it cannot be said that the authority has passed the order in haste. When an authority vested with power under Act, 1958 has passed an order in accordance with the provisions of the said Act and Rules, it will have to be legally presumed that such an order is passed by the authority in accordance with law, therefore, the petitioner has to disprove the same. Petitioner was duty bound to produce sufficient proof in order to arrive at a different conclusion than the one arrived by the statutory authorities. No such document or proof is produced by the petitioner enabling the statutory authorities or this Court to arrive at a different conclusion than the one arrived at by the RDO. Apart from all W.P.(C). No.12323 of 2017 15 these aspects, it is evident that, petitioner has sold balance extent of properties as per Exts.R7(c) and R7(d). In accordance with the schedule provided thereunder, it is clear, petitioner himself admits in those documents that on the northern side of the property is the Thammanam-Pullepadi road, and in the schedule to Ext.R7(c) it is clearly stated, the northern boundary is 1.433 cents of property surrendered by the petitioner. The recital contained in those documents are not disputed or assailed by the petitioner at any point of time. Therefore, even if the case of the petitioner that, the properties sold to respondents 7 to 9 are not inclusive of the land relinquished, it is so admitted by the petitioner in Exts.R7(b), R7(c) and R7(d) registered documents and the significant indication is the northern boundary shown as road and property surrendered by the petitioner respectively. These are all aspects raised by W.P.(C). No.12323 of 2017 16 respondents 7 to 9 which stands unrebutted. It is also equally important to note that, petitioner has not disclosed the entire aspects before this Court including the sale of the property to respondents 7 to 9, which thus means there is suppression of material facts and therefore, this Court will be loathe to grant any relief invoking the discretionary jurisdiction conferred on this Court under Article 226 of the Constitution of India. It is also an admitted fact that petitioner has received an amount of Rs.35,000/- with respect to the building situated in the relinquished property. 9. Learned counsel for the petitioner has also advanced arguments on the basis of the provisions contained under the Kerala Municipality (Acquisition and Disposal of Property) Rules, 2000, to canvass the proposition that, the 6[th] respondent Corporation is not entitled to secure any surrender in W.P.(C). No.12323 of 2017 17 accordance with the provisions of the Land Relinquishment Act and Rules, 1958 and if at all the Corporation requires any land the same will have to be acquired in accordance with the provisions contained under the aforesaid Rules. In my considered opinion, no where petitioner has raised such a plea including this writ petition as it stood originally. It is on the basis of an after thought, petitioner has filed the amendment application to include such contentions also. More over, the subject matter was considered by the statutory authorities taking into account the pleas raised by the petitioner thereuender. In my considered view while challenging the aforesaid proceedings petitioner cannot incorporate new aspects and contend that, the petitioner is entitled to get the relief also taking into such contentions made by the petitioner. Apart from the same, both the statutes in question operate in W.P.(C). No.12323 of 2017 18 different fields in clear exclusion to the other. When the land is evidently surrendered by the petitioner, petitioner has no say as to the manner of its utilisation also. Respondents 7 to 9 also have a case that the petitioner is not having any property after the surrender and sale of the properties to the said respondents, in order to secure the relief sought for in the writ petition. In find force in the said contention taking into account all relevant inputs available on record. 11. Learned counsel for the 6[th] respondent has also invited my attention to the judgment of a Division Bench of this Court in Natarajan v. Village Officer [2013(1) KLT 846], wherein, the very same question in respect of the properties surrendered in the very same village for the very same purpose was considered and held that, the action of securing necessary forms and orders passed by the primary authority was in order. W.P.(C). No.12323 of 2017 19 Having gone through the judgment I am of the considered opinion that, the issue raised by the petitioner was also a subject matter for the consideration of the Division Bench. Even though learned counsel has invited by attention to the judgment of this Court in Thankamma v. State of Kerala [1982 KLT 496:1982 KHC 118] to contend that, if the authority is not vested with any power/jurisdiction irrespective of the surrender to the jurisdiction cannot be said to be an action acceptable to law. However, on a reading of the facts therein what I could gather is that, that was a case where the RDO has exercised powers under the Land Reforms Act without any jurisdiction under the said Act. Even if the contention of the petitioner that, Exts.P2 and P3 are secured by the 6[th] respondent from the petitioner, the order is passed by the RDO, who is the primary authority under Act and Rules, 1958. Yet another judgment W.P.(C). No.12323 of 2017 20 canvassed by the petitioner is the judgment in Sunder Dass v. Ram Prakash [AIR 1997(2) SCC 662], where, the question of executability of a decree which is passed without jurisdiction was under consideration. In my considered view the same has also no relevance to the facts and circumstances of the case at hand. Learned counsel for the petitioner has also invited my attention to the judgment of this Court in John v. Thaikkad Panchayat [AIR 1990(2)KLT 721 :1990 KHC 456], thereunder, the question considered by this Court was whether a free surrender made by a person under the Panchayath (Acquisition and Transfer of Immovable Property) Rules, 1963, (Kerala) requires registration. The facts and circumstances of the said case has also no bearing at all to the issues raised by the petitioner in this writ petition. 12. Taking into account all these aspects and W.P.(C). No.12323 of 2017 21 appreciating the arguments advanced across the bar, I am of the considered opinion that, the petitioner has not made out any case justifying interference under Article 226 of the Constitution of India, there being no illegality, arbitrariness or unfairness in Ext.P11 order passed by the 1[st] respondent, upholding the orders passed by other statutory authorities. Resultantly, writ petition fails, accordingly, it is dismissed. Sd/- SHAJI P. CHALY, JUDGE dlk/16/6/18