Jerry P. Cherian v. District Collector, Ernakulam District; Tahsildar, Muvattupuzha Taluk; Village Officer, Mulavoor Village

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **THURSDAY, THE 31ST DAY OF OCTOBER 2013/9TH KARTHIKA, 1935** ## **WP(C).No. 30542 of 2012 (P)** **---------------------------------------** **PETITIONER:** - **-------------------** **JERRY P.CHERIAN, S/O KORAKUNJU, PULINATTU HOUSE, MANARI P.O, MULAVOR, NOW RESIDING AT PARIJATHAM ROAD, CHENGAMPUZHA NAGAR. P.O, SOUTH KALAMASSERY, ERNAKULAM DISTRICT.** **BY ADV. SRI.N.K.KARNIS.** **RESPONDENTS:** **------------------------** ## **1. THE DISTRICT COLLECTOR,** **ERNAKULAM DISTRICT COLLECTORATE, CIVIL STATION, KAKKANADU, PIN- 682 030.** ## **2. THE TAHSILDAR,** **MUVATTUPUZHA TALUK, PIN-686 661.** ## **3. THE VILLAGE OFFICER,** **MULAVOOR VILLAGE, MULAVOOR P.O, KUVATTUPUZHA, PIN- 686 673.** **BY GOVERNMENT PLEADER SMT. M.J. RAJASREE.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.30542/2012-P:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT. P1: TRUE COPY OF THE STOP MEMO ISSUED BY THE VILLAGE OFFICER, MULAVOOR VILLAGE, DATED 15-11-2012. EXT. P2: TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 17-03-1954. EXT. P3: TRUE COPY OF THE SETTLEMENT DEED EXECUTED IN FAVOUR OF THE PETITIONER AND JENSON JOSEPH DATED 25-06-1994. EXT. P4: TRUE COPY OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT DATED 30-03-2012.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **P.R. RAMACHANDRA MENON, J.** ======================== W.P.(C). No. 30542 of 2012 -------------------------------------------Dated this the 31st day of October, 2013 ## **JUDGMENT** The petitioner is stated as aggrieved of Ext.P1 stop memo issued by the Village Officer on 15.11.2012 intercepting the cutting and removal of rubber trees planted in the property in question. The property concerned is having an extent of 5.75 Acres of land comprised in Sy.No. 1008/44, 45, 46, 69 of Mulavoor Village, which came to the hands of the grandfather of the petitioner as per 'Kuthakappattam Rules 1947' and it was being enjoyed without being interrupted from any corner, right from 1943, although the 'Kuthakappattam lease' given vide Ext.P2 was only with effect from the year 1953. It is stated that the ' Kuthakappattam' was being satisfied by the grandfather of the petitioner, who planted rubber trees in the said property and was enjoying the same as mentioned above. 2. In the year 1994, the grandfather of the petitioner executed Ext.P3 settlement deed, whereby the property was conveyed to the grand children and thus the petitioner came to W.P.C. No. 30542 of 2012 -2- be the owner of the property, who started enjoying the same with possession and such other rights. Ext.P4 dated 30.3.2012 has been produced, as to the satisfaction of the last remittance of 'pattom' on 30.3.2012, with intent to replant the property and the petitioner started cutting and removal of rubber trees, when the 3rd respondent intercepted the same by way of Ext.P1 stop memo. 3. The case of the petitioner is that, he is having every right over the rubber trees planted in the property and as such, the intervention made by the 3rd respondent vide Ext.P1 stop memo is liable to be intercepted by this Court. It is also stated that, absolutely no notice of hearing was ever given to the petitioner before taking over the property and inclusion in the Land Bank. Reliance is also placed on the decision rendered by this Court in **Ouseph Mathai v. State of Kerala and another** (2012 (2) KHC 916). 4. A counter affidavit has been filed on behalf of the 2nd respondent pointing out that, the version of the petitioner is not correct or sustainable. It is stated that, the property herein was not given for unlimited Kuthakappattam lease as put forth by the W.P.C. No. 30542 of 2012 -3- petitioner and in fact, it was given only for 'cashew cultivation', whereas it was made use for planting the rubber, in contravention of the conditions. It is also pointed out that the Kuthakappattam was never sought to be renewed by the petitioner or his grandfather and as such, the Government had every right to have the land resumed, by virtue of the relevant provisions of law and orders issued in this regard. Paragraphs 3 to 6 of the counter affidavit are relevant and hence they are extracted below for convenience of reference. “3. It is submitted that, according to the report of the Village Officer, Mulavoor, the petitioner was trying to clear the land by cutting forest trees. The land was given for the cultivation of cashew trees. As per G.O(MS).No. 280/2011/RD dated 27.07.2011, public land given to lease shall be utilized only for the purpose for which it is leased and cannot be lienated. The land, if let unutilized for six months shall be resumed and returned to the state Land bank as per the G.O. If the petitioner was trying to cut the old rubber trees and replant the new ones, itself is a reason to resume the land. 4. It is submitted that, according to G.O(MS). No. 280/2011/RD dated 27.07.2011, land leased for commercial purpose lease may extent up to a maximum of 10 years. Land leased for infrastructure requirements viz schools, hospitals etc may extent up W.P.C. No. 30542 of 2012 -4- to a maximum of 30 years. Now lease is given to individuals as per the Kerala Land assignment Rules 1964, lease under clause (b) of section 13(A), of land conservancy Act, land be granted by Tahsildar for a period not exceeding to two years of time and maximum of 50 cents in each cases. 5. It is submitted that, Kora Cheria transferred his property but his grand children did not submit application to renew the lease and does not comply with Kuthakapattom Rules. Remittance of pattom does not confer any right over the land to the petitioner and since they do not try to renew the lease as per the Fair value rate, the present possession by the petitioner over the puramboke is illegal. 6. It is submitted that, as per G.O 174/2011/Revenue dated 02.05.2011 of Revenue Department, lease should be calculated according to the Fair value of the nearest assigned land market value will be double of the fair value. Since the petitioner has not renew lease, itself is a reason to resume the land to the Government land bank. Since the petitioner is trying to cut the old rubber trees and to replant the new ones, the land shall be resumed, that the holder planted rubber trees instead of cashew trees for which the permission was granted itself is an open violation of the rule. The land can be taken back on the same reason.” 5. With regard to the decision sought to be relied on by the petitioner, the learned Government Pleader points out that, it W.P.C. No. 30542 of 2012 -5- was a case where the land involved was given for rubber cultivation and that, no violation of condition/Rules was there in any manner. In the instant case, apart from the fact that the lease was never renewed, the property was made use of for rubber cultivation, which is a clear instance of violation and it was accordingly, that the property was taken over and the same was included in the Land Bank as borne by Ext.P1 memo itself. 6. After hearing both the sides, this Court finds that the correct factual position has to be ascertained with reference to the relevant records by the competent authority. This Court finds that, it has to be dealt with by the 1st respondent at the first instance, before being acted upon by this Court. 7. In the said circumstance, the petitioner is set at liberty to approach the 1st respondent by filing necessary representation in this regard within 'two weeks' from the date of receipt of a copy of this judgment, upon which the same shall be considered and finalized by the 1st respondent in accordance with law and also in the light of the decision cited supra and other binding judicial precedents, if any in this regard. This shall be done after giving an opportunity of hearing to the petitioner, at the earliest, W.P.C. No. 30542 of 2012 -6- at any rate, within 'three months' from the ate of receipt of the representation. The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the 1st respondent for further steps. The writ petition is disposed of. **P.R. RAMACHANDRA MENON, JUDGE.** kp/-