Indiramma Edasseril Nambaruvikala Karunagappally Kollam v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 29TH DAY OF FEBRUARY 2016/10TH PHALGUNA, 1937 WP(C).No. 3377 of 2012 (V) --------------------------- PETITIONER: -----------------INDIRAMMA, EDASSERIL, NAMBARUVIKALA, KARUNAGAPPALLY, KOLLAM BY ADVS.SRI. LEO GEORGE SRI.K.N. SASIDHARAN NAIR RESPONDENTS: ---------------------- ## 1. STATE OF KERALA - REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT - GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001 2. THE LAND REVENUE COMMISSIONER THIRUVANANTHAPURAM 695001 ## 3. THE DISTRICT COLLECTOR - KOLLAM 691001 ## 4. THE REVENUE DIVISIONAL OFFICER - KOLLAM 691001 ## 5. THE TAHSILDAR - KARUNAGAPPALLY 688524 ## 6. THE VILLAGE OFFICER - KARUNAGAPPALLY 688524 Addl.7. CHANDRAN AGED 35 YEARS, S/O.KOCHUNARAYANAN PUNTHALAKIZHAKKETHARA, NAMBARUVIKALA, ALUMKADAVU P.O. KOLLAM DISTRICT. ## Addl.8. SIVADASAN S/O. PARAMESWARAN ASARI, PUNTHALAKIZHAKKATHIL NAMBARUVIKALA, ALUMKADAVU P.O., KOLLAM DISTRICT. Addl.9. AHAMMED KUNJU AGED 54 YEARS, S/O.KUNJUMMAR KUNJU, KOLLASSERI PADEETTATHIL, NAMBARUVIKALA, ALUMKADAVU P.O. KOLLAM DISTRICT. WP(C).No. 3377 of 2012 Addl.10. SALIM.A., S/O. ALI UMMAR KUNJU, KOLLASSERI KIZHAKKATHIL NAMBARUVIKALA, ALUMKADAVU.P.O., KOLLAM DISTRICT. Addl.11. GOPALAKRISHNAN S/O. MADHAVAN ASARI, PUNTHALA KIZHAKKATHIL NAMBARUVIKALA, ALUMKADAVU.P.O., KOLLAM DISTRICT. ADDL R7 TO R11 ARE IMPLEADED AS PER ORDER DATED 02/03/2012 IN IA 3004/2012. R7-11 BY ADV. SRI.K.ABDUL JAWAD R1 TO R6 BY SPECIAL GOVERNMENT PLEADER SMT. SUSHEELA BHATT GOVERNMENT PLEADERS SRI. V.K. RAFIQ SRI. EGGY N. ELIYAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.2.2016, THE COURT ON 29.02.2016 DELIVERED THE FOLLOWING: WP(C).No. 3377 of 2012 PETITIONER'S EXHIBITS: P1 : TRUE COPY OF THE ORDER PASSED BY THE FOURTH RESPONDNET IN L.C.NO.10/1994, DATED 3/8/1994. P2 : TRUE COPY OF THE NOTICE ISSUED TO THE HUSBAND OF THE PETITIONER BY THE FIFTH RESPONDENT DATED NIL. P3 : TRUE COPY OF THE ORDER PASSED BY THE FOURTH RESPONDENT DATED 3.7.2007. P4 : TRUE COPY OF THE ORDER PASSED BY THE FIFTH RESPONDENT DATED 5.4.2008. P5 : TRUE COPY OF THE ORDER PASSED BY THE FOURTH RESPONDENT DATED 9.11.2008. P6 : TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT DATED 3.6.2009. P7 : TRUE COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT DATED 31.10.2009. P8 : TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C) NO,32119/2009 DATED 14.12.2010. P9 : TRUE COPY OF THE ORDER PASSED BY THE FIFTH RESPONDENT DATED 2.5.2011. P10 : TRUE COPY OF THE ORDER PASSED BY THE FOURTH RESPONDENT DATED 27.12.2011. P11 : TRUE COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT DATED 31.1.2012. ## RESPONDENTS' EXHIBITS: R7(a) : TRUE COPY OF THE MAHAZAR PREPARED, PRECEDING TO EXTS.P1 AND P2. R7(b) : TRUE COPY OF THE RELEVANT PAGE IN THE BASIC TAX REGISTER (btr) SHOWING THE STATUS OF THE LAND. //TRUE COPY// P.A. TO JUDGE smv ## **SHAJI P. CHALY, J** ----------------------------------------------- **W.P. (C) No.3377 of 2012 ----------------------------------------------Dated this the 29[th] day of February, 2016.** ## **JUDGMENT** This writ petition is filed seeking to quash Exts.P9, P10 and P11 orders passed by respondents 5, 4 and 3 respectively under the Land Conservancy Act, 1957. 2. Brief facts required for the purpose of disposal of the writ petition are as follows: 3. Petitioner is the wife of one late Rajendra Prasad. Rajendra Prasad was the owner in possession of 45 cents of property in old Sy.No.13709/A/1-3 and 13709/A/1-1 of Karunagapally Village, secured from his parents Damodaran and Jagadamma who were in possession of the property for years together. During 1994 at the behest of a few local residents who were making attempts to cut open a pathway through a portion of the property of Rajendra Prasad, 5[th] respondent initiated proceedings against Rajendra Prasad under the Act by issuing LC No.10/1994 and ordered to impose prohibitory tax on him holding that he had encroached upon an extent of 3.08 cents of W.P. (C) No.3377 of 2012 2 Government poramboke, evident from Ext.P1. As per Ext.P1 5[th] respondent directed Rajendra Prasad to vacate the premises consequent to which he was issued with Ext.P2 notice. As per Ext.P2 Rajendra Prasad was called upon to pay arrears of land tax from the year 1944 onwards, is the contention. 4. It is the case of the petitioner that the aforementioned 45 cents of land was in possession of the husband of the petitioner and his predecessors-in-interest for the last more than 100 years and therefore, the proceedings initiated by the 5[th] respondent under the provisions of the Land Conservancy Act is illegal and unjustified. Thereupon Rajendra Prasad preferred an appeal before the 4[th] respondent against Ext.P1 order and during the pendency of the same Rajendra Prasad died. Consequently the appeal was pursued by the petitioner who is in occupation of the land in question as a successor to her husband. As per Ext.P3 order dated 3.7.2007 the said appeal was allowed and thereupon the 4[th] respondent directed the 5[th] respondent to pass fresh orders taking into account the contentions raised by the petitioner that the 5[th] respondent has no jurisdiction to initiate proceedings under the Act in respect of an encroachment took W.P. (C) No.3377 of 2012 3 place prior to the commencement of the Land Conservancy Act, 1957. 5. Pursuant to Ext.P3 order, contends the petitioner that, 5[th] respondent though found the encroachment was prior to the commencement of the Act , confirmed the earlier order passed by him holding that the land in question is classified as vazhi poramboke as per the revenue records and accordingly passed Ext.P4 order. Aggrieved by the said order, petitioner has filed appeal before the 4[th] respondent and by Ext.P5 order dismissed the appeal. Ext.P5 was challenged by the petitioner by filing revision before the 3[rd] respondent. The said revision was also dismissed by Ext.P7 order dated 31.10.2009. Aggrieved by Ext.P7 order, petitioner has preferred W.P.(C) No.32119/2009 before this court and by judgment dated 14.12.2010 the orders passed by the statutory authorities were set aside and directed the 5[th] respondent to re-consider the matter duly taking into account the findings in Ext.P3 order. 6. The 5[th] respondent as directed by this court, thereafter has passed Ext.P9 order holding that the encroachment into the property in question is after the introduction of the Land W.P. (C) No.3377 of 2012 4 Conservancy Act and therefore, there is no impediment whatsoever in evicting the encroachment. Aggrieved by Ext.P9 petitioner has preferred appeal before the 4[th] respondent and the same was dismissed by Ext.P10. Consequent to which revision was filed before the 3[rd] respondent which was also dismissed by Ext.P11 order. It is thus aggrieved by Exts.P9, P10 and P11, this writ petition is preferred. 7. The 5[th] respondent and party respondents 7 to 11 have filed counter affidavits refuting the allegations and claims and demands made by the petitioner. The 5[th] respondent contended that the petitioner has committed encroachment of 3.08 cents of Government poramboke land comprised in old Sy.No.13709/B (Resurvey No.330/5) of Karunagapally Village, consequent to which the LC case No.10/94 was registered against the use of the petitioner and it was based on the said circumstances only, further proceedings were initiated by the statutory authorities. It is also contended that late Rajendra Prasad has filed O.S No.125/1994 before the Munsiff Court, Karunagapally against Sadasivan Achary and others from using the disputed land as pathway to enter into their property. The Munsiff court W.P. (C) No.3377 of 2012 5 dismissed the petition in favour of the party respondents on the basis of the findings of the Advocate Commissioner that the petitioner's husband has constructed a fence newly on the eastern side of the plaint schedule property. It is also contended that even though the petitioner has preferred appeal and revision before the statutory authorities they were dismissed since the petitioner was not entitled to hold the property encroached upon, the same being, as per the land revenue records a vazhi poramboke. It is also contended that the authorities have passed Exts.P9, P10 and P11 orders in absolute compliance of the directives issued by this court in Ext.P8 judgment. Therefore, contended that, no interference is called for in the orders passed by the statutory authorities, the same being in accordance with law and in terms of the directions issued by this court. 8. The party respondents has filed a counter affidavit almost in similar lines and also contending that their predecessors and they themselves have been using a public pathway leading from the public road to their residences from time immemorial that they have no other access to their lands W.P. (C) No.3377 of 2012 6 from the public road. It is also contended that the said pathway is a Government vazhi poramboke land having an extent of 2.30 Ares comprised in resurvey No.330/05 of Karunagapally Village. That apart it is contended that during the year 1994 when the construction of the petitioner's house was going on she and her husband unauthorizedly annexed the said poramboke land to her property denying their right to use public pathway. It is also contended that now the said party respondents are using another private land to access their houses on foot. It is also contended that vehicular access was completely denied to them. In such circumstances, they have filed complaints before the authorities under the Land Conservancy Act and based on such complaints proceedings under the Land Conservancy Act was initiated. That apart it is contended that the husband of the petitioner even though tried to get injunction against the beneficiaries was aborted by dismissal of the said suit by the Munsiff Court by its judgment and decree dated 26.02.1996 and the same has become final. It is also contended that thereafter the authorities have concurrently found that the petitioner has encroached into the vazhi poramboke and has annexed the Government land to W.P. (C) No.3377 of 2012 7 their property. It is the contention of the said respondents that the orders passed by the statutory authorities are in order in all respects. The said respondents have denied the contentions raised by the petitioner that the orders passed by the statutory authorities are in violation of the directives issued by this court in Ext.P8 judgment. That apart it is contended that as per the mahazar prepared the 5[th] respondent has found that trees standing in the property shows that the maximum period of occupation of the petitioner is 20 years since the coconut trees situated in the said property are aged 20 years apart from other trees standing in the said property. It is also contended that if the petitioner was in possession of the property, the same would not have been shown in the resurvey as vazhi poramboke in the Basic Tax Register. In order to establish the said situation the respondents have produced Ext.R7(b) which is the relevant page in the Basic Tax Register. Therefore respondents contends that it is clear that the property in question is a vazhi poramboke which can never be assigned to any person. In such circumstances the respondents prayed that the writ petition may be dismissed. W.P. (C) No.3377 of 2012 8 9. Petitioner has filed a reply reiterating her earlier contentions and also refuting the allegations made by the respondents in the respective counter affidavits. 10. Heard learned counsel for the petitioner, learned Government Pleader and learned counsel appearing for party respondents 7 to 11. 11. The foremost contention advanced by learned counsel for the petitioner is that Exts.P9, P10 and P11 order are illegal since they have not taken into account the directives issued by this court in Ext.P8 judgment. It is further contended that as per Ext.P8 judgment this court has found that the findings contained in Ext.P3 order are final and conclusive and the respondent statutory authorities overlooked the said findings and passed orders in violation of the same. It is the specific contention of the learned counsel that since in Ext.P3 it is found that the notice issued by the Tahsildar shows the time of encroachment as 40 years, Section 5 of the Kerala Land Conservancy Act could not be invoked in this case. Therefore learned counsel contends, that, the finding in Ext.P2, that the petitioner or her predecessor-in-interest was in possession of the land for the past W.P. (C) No.3377 of 2012 9 40 years was taken note of by this court, while passing Ext.P8 judgment and being conscious of the said fact a specific direction was issued to the 5[th] respondent to confine to the findings contained in Ext.P3 order. Learned counsel also contends that as per Section 110 of the Evidence Act the burden is on the respondents to prove that the petitioner came in possession of the land sub-section subsequent to the introduction of the Kerala Land Conservancy Act. It is also contended that, when such findings were referred by the 5[th] respondent in Ext.P2 and the 4[th] respondent in Ext.P3, on and off the statutory authorities cannot change their stand and thereby disturb the possession of the petitioner of the disputed land in question. In this regard, learned counsel invited my attention to the judgment rendered by the Apex Court in **Hope Plantations Ltd. v. Taluk Land Board, Peermade and another** [(1995) 5 SCC 590] and specifically invited my attention to paragraph 26 wherein it is held that the principles of estoppel and res judicata are based on public policy and justice and the same applies to the statutory and the administrative authorities also. That apart judgment of the Apex Court in **Shiromani Gurdwara Parbandhak** W.P. (C) No.3377 of 2012 10 **Committee v. Mahant Harnam Singh C. and others** reported in [(2003) 11 SCC 377] and **Swamy Atmananda and others v. Sri Ramakrishna Tapovanam and others** reported in [(2005) 10 SCC 51] were referred, to canvass the proposition that the factual findings relating to the nature and character of the institutions specifically found on an elaborate review of the governing legal principles as well and which have reached finality cannot be reagitated and the same is precluded on the principle of 'issue estoppel'. Learned counsel has also referred to various observations made in the 9[th] edition of 'Wade on Administrative Law' to propound that, the administrative authorities should be consistent in their findings and principles of law evolved applies to such authorities also. 12. On the other hand, learned Government Pleader contended that if the property was in possession of the petitioner as is contended, definitely, while resurvey was done, it would have been included in the Basic Tax Register in the 'thandaper' of the petitioner. Instead, since even after resurvey the property is shown in the Basic Tax Register as vazhi poramboke, which itself is an indicative fact or that the property remained as W.P. (C) No.3377 of 2012 11 poramboke land at the time of resurvey. Learned Government Pleader fully supported the orders passed by the statutory authorities. 13. Learned counsel appearing for respondents 7 to 11 has primarily contended that in fact what was directed in Ext.P3 order by the 4[th] respondent, is a direction to the 5[th] respondent to consider the issue taking notice that the Tahsildar has shown the time of encroachment and whether Section 5 of Kerala Land Conservancy Act can be invoked in the case, which thus means that what is contained in Ext.P3 order is not, that the 4[th] respondent has accepted the findings of the Tahsildar, that the petitioner was in possession of the property for the past 40 years but the direction was to the 5[th] respondent to take note of the 40 years mentioned in Ext.P2 and consider the case of the petitioner as to whether Section 5 of the Kerala Land Conservancy Act applies. That apart it is also contended that since it is found that even after resurvey the disputed property in question is a vazhi poramboke, the same cannot W.P. (C) No.3377 of 2012 12 be assigned or permitted to be used by any person for private use. It is also contended that the party respondents were in absolute enjoyment of the said property to have access to their properties situated near to the disputed land in question. It is also the case of the party respondents that in view of the judgement of the Munsiff Court in O.S NO.124/1994, it is categoric and clear that as per the commission report a new fencing was done on one side of the property by encroaching into the disputed area in question. Therefore the counsel contended that the findings rendered by the statutory authorities are in order and does not warrant any interference at all. 14. I have considered the rival submissions made by the petitioner and the respondents, perused the documents and pleadings. The question to be considered is with respect to the direction/finding contained in Ext.P3 order and the nature of direction issued by this court in Ext.P8, with respect to the manner in which Ext.P3 was to be treated. According to the learned counsel for the W.P. (C) No.3377 of 2012 13 petitioner, the contents in Ext.P3 with regard to the findings of the Tahsildar showing the time of encroachment as 40 years, is a conclusive finding and the directions was to consider that finding of fact vis-a-vis Section 5 of the KLC Act. Learned Government Pleader as well as the learned counsel for party respondents submitted that if that was accepted as a finding of the 4[th] respondent then there was no reason for the 4[th] respondent to remand the matter to the 5[th] respondent. In order to consider the issue, I think it is only relevant and appropriate that Ext.P2 is referred to. Ext.P2 is a receipt issued by the 5[th] respondent showing the details of the encroachment and the amount to be paid as penalty for doing so. It is mentioned that the period for the penalty was imposed is 40 years and the amount was calculated at Rs.290/-. But there is no finding in Ext.P2 how the 5[th] respondent has arrived at a finding regarding the period of occupation of the property by the predecessor of the petitioner. 15. Therefore in my view the entry made therein with W.P. (C) No.3377 of 2012 14 respect to 40 years cannot be considered as a conclusive proof to arrive at a conclusion that the petitioner was in possession of the disputed property for the past 40 years prior to the issuance of Ext.P2. According to me, in Ext.P3 the 4[th] respondent had relied on Ext.P2 document to point out that the petitioner was allegedly in possession of the property for 40 years. It is important to note that the case projected by the petitioner was that her predecessors were in possession of the property for the past 110 years. No documents or reliable evidence was produced to arrive at a conclusive finding that the petitioner or her predecessor was in possession of the property for so much period or for a period of 40 years prior to the issuance of Ext.P2. Merely because a receipt was produced in which there is an entry with respect to the possession of property as 40 years that will not be a conclusive proof to establish the possession of the property with the petitioner or her predecessor for that length of period. 16. That apart it is contended by the Learned W.P. (C) No.3377 of 2012 15 Government Pleader as well as learned counsel for the party respondents that Section 5 of the Kerala Land Conservancy Act takes care of the period possessed by a person prior to the introduction of the Act also. In order to appreciate the law correctly, I think it is only appropriate that Section 5 of the Act is extracted hereunder: “5. Land which is the property of Government not to be occupied without permission:- (1) From and after the commencement of this Act, it shall not be lawful for any person to occupy a land which is the property of Government, whether a poramboke or not without permission from the Government as may be empowered in this behalf. [Explanation.-- For the removal of doubts it is hereby declared that the erection of any wall, fence or building or the putting up of any overhanging structure or projection (whether on a temporary or permanent basis) on or over any land aforesaid shall be deemed to be occupation of such land] (2) Notwithstanding anything contained in subsection (1), it shall not be lawful for any person to erect or cause to erect any wall, fence or building or put up or cause to put up any overhanging structure or projection (whether on a temporary or permanent basis) on or over any land referred to in sub-section (1) except under and in accordance with the terms and conditions of a licence issued by the Government or such officer of the W.P. (C) No.3377 of 2012 16 Government as may be empowered by them in this behalf.' (3) Any person desirous of obtaining a licence referred to in sub-section (2) may apply to the Government or to such officer of the Government as may be empowered by them in this behalf for an appropriate licence. (4) An application under sub-section (3) shall be in such form and shall contain such particulars and shall be accompanied by such fee, as may be prescribed by rules made under this Act].” 17. On a consideration of Section 5 of the Act, what is discernible is that from the commencement of the Act, it shall not be lawful for any person to occupy a land which is the property of Government, whether a poramboke or not without permission from the Government as may be empowered in this behalf. 18. After assimilating the legal situation contained under Section 5, I am of the considered opinion that even if the property was held by a person prior to the introduction of the Act, on commencement of the Act the person in possession is bound to file suitable application before the appropriate statutory authorities and secure permission to W.P. (C) No.3377 of 2012 17 continue possession of the same. There is no case for the petitioner that either the predecessors-in-interest or the petitioner has made any such application before the statutory authorities as required under Section 5 of the Kerala Land Conservancy Act. Therefore, I am of the considered opinion that the findings rendered by the statutory authorities with respect to the same is in accordance with law. 19. Next question to be considered is whether, in Ext.P8 a peremptory finding was rendered by this court with regard to the finality of Ext.P3 order passed by the 4[th] respondent with respect to the period specified therein. What is observed in paragraph 10 of Ext.P8 judgement with regard to Ext.P3 order is as follows: “Therefore, on remand, when the matter was reconsidered, the Tahsildar ought to have borne in mind the findings of the Appellate Authority, as contained in Ext.P3 order and examine the issue in the light of such finding. A reading of Ext.P4 order W.P. (C) No.3377 of 2012 18 passed by the Tahsildar shows that this issue was not even adverted to, despite the finding that, the petitioner's husband had encroached into the property about 60 years back.” (40 years as per Ext.P2). 20. Therefore, in my view, what was intended by this court by making such observation is that the petitioner has raised a contention that she was in possession of the property for a specified period and prior to the commencement of the Kerala Land Conservancy Act, and the said contention put forth by the petitioner was never considered by the 3[rd] , 4[th] and 5[th] respondents respectively while passing the impugned orders. If this court was convinced that finding in Ext.P3 with regard to the number of years, the property was held by the predecessor-ininterest of the petitioner or the petitioner, this court ought not have made mention with regard to the consideration of the same by the 5[th] respondent. Therefore, this court was of the opinion that such an issue raised by the petitioner was W.P. (C) No.3377 of 2012 19 not considered by the respective statutory authority and that is why the same was directed to be considered by this court in Ext.P8, and in such circumstances, I am of the considered opinion that, there is no violation of directives contained in Ext.P8 judgement. 21. So far as the factual findings in the impugned orders are concerned, three statutory authorities have found concurrently that the petitioner was in possession of the property after the introduction of the KLC Act and for 20 years alone taking into account the age of the various trees standing in the property and the maximum age of two coconut trees, assessed to be at the age of 20 years. Therefore, such factual finding entered into by the 5[th] respondent and re-appreciated by the 4[th] and 3[rd] respondents respectively cannot be said to be without appreciation of proper evidence. Moreover, when this court is considering the orders of the statutory authorities by exercising its powers of judicial review conferred under W.P. (C) No.3377 of 2012 20 Article 226 of the Constitution of India, the scope of enquiry is to the manner in which the statutory authorities have considered the case of the petitioner. Petitioner does not have a case that sufficient opportunity was not provided to the petitioner to contest her proceedings and that the documents or other evidence produced by the petitioner were not considered by the statutory authorities. On the other hand, from the impugned orders, I find that sufficient opportunity was provided by the respective authorities to the petitioner to contest the proceedings by observing the principles of natural justice and therefore I do not find any illegality, legal infirmity or any irrationality in the orders passed by the authorities below. In such circumstances writ petition fails and accordingly the same is dismissed. Sd/- **SHAJI P. CHALY** //true copy// **JUDGE** P.A. To Judge smv 23.2.2016