Krishna Bhat and Visalakshi and Ganaraja (minor) v. Commissioner of Land Revenue, Trivandrum and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 9TH DAY OF NOVEMBER 2016/18TH KARTHIKA, 1938** ## **WP(C).No. 20839 of 2007 (E)** **----------------------------** **PETITIONER(S): ------------------------** **1. KRISHNA BHAT, S/O.GANAPATHY BHAT, KARUVAJE, BAYAR, KASARAGOD.** - **SUPPLEMENTAL PETITIONER 2 & 3 IMPLEADED** **2. VISALAKSHI, W/O. KRISHNA BHAT, KARUVAJE, BAYAR, KASARAGOD.** **3. GANARAJA-MINOR , AGED 17 YEARS, REPRESENTED BY MOTHER VISALAKSHI, S/O. KRISHNA BHAT, KARUVAJE, BAYAR, KASARAGOD.** - **SUPPLEMENTAL PETITIONERS 2 AND 3 ARE IMPLEADED AS PER ORDER DATED 13/01/2011 IN I.A. NO.351/2011.** **BY ADVS.SRI.V.V.ASOKAN, SMT.S.AMINA.** **RESPONDENT(S):** **---------------------------** **1. COMMISSIONER OF LAND REVENUE, TRIVANDRUM.** **2. THE REVENUE DIVISIONAL OFFICER, KASARAGOD AT KANHANGAD.** **3. THE SPECIAL TAHSILDAR, (LAND ASSIGNMENT), KASARAGOD.** **4. DEVAKI, W/O.LATE THYMPANNA MOOLYA, KARUVAJE, BAYAR, P.O. DHARMATHEDKA, KASARAGOD.** ## **WP(C).No. 20839 of 2007 (E)** **5. RAMA MOOLYA, S/O.LATE THYMPANNA MOOLYA, KARUVAJE, BAYAR, P.O. DHARMATHEDKA, KASARAGOD.** **6. VASANTHI, D/O.LATE THYMPANNA MOOLYA, KARUVAJE IN BAYAR VILLAGE, P.O. DHARMATHEDKA, KASARAGOD.** **7. JAYASREE, D/O.LATE THYMPANNA MOOLYA, KARUVAJE, BAYAR, P.O. DHARMATHEDKA, KASARAGOD.** **R1 TO R3 BY SR. GOVT. PLEADER SRI.SANTHOSH PETER. R4 TO R7 BY ADV. SRI.K.G.GOURI SANKAR RAI.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 20839 of 2007 (E)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT IN AA. NO.43/80.** **EXT.P2 COPY OF THE ORDER OF ASSIGNMENT IN FAVOUR OF THE PETITIONER.** **EXT.P2A COPY OF THE PATTA ISSUED IN FAVOUR OF THE PETITIONER. EXT.P3 COPY OF THE ORDER OF TBE BOARD OF REVENUE. EXT.P4 COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT. EXT.P5 COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT. EXT.P6 COPY OF THE ORDER OF THE 1ST RESPONDENT. EXT.P7 COPY OF THE JUDGMENT IN WP(C).NO.26858/2003. EXT.P8 COPY OF THE HEARING NOTICE ISSUED BY THE 1ST RESPONDENT. EXT.P9 COPY OF THE WRITTEN SUBMISSION FORWARDED BY THE COUNSEL FOR THE PETITIONER TO THE 1ST RESPONDENT. EXT.P10 COPY OF THE ORDER PASSED BY 1ST RESPONDENT.** **RESPONDENT'S EXHIBITS:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **P.V.ASHA, J.** ----------------------------------------------------- W.P(C) No.20839 of 2007-E ---------------------------------------------------------------------Dated this the 9[th] day of November, 2016 ## **JUDGMENT** The petitioner challenges Ext.P10 order by which the Commissioner for Land Revenue cancelled the assignment in favour of the father of the petitioner and directed to take possession of the said property without issuing any notice with respect to the cancellation, while the Commissioner for Land Revenue was considering a revision petition filed by respondents 4 to 7 as against the assignment of land in favour of the petitioner's father. 2. 0.71 acres of land in R.S.838/1 of Bayar village was assigned to Sri. Moolya, the husband of the 3[rd] respondent. As against that assignment the petitioner's father late Sri.Ganapathi Bhat filed appeal No.43/1980 before the Revenue Divisional Officer, Kasaragode. Seeing that the said land formed kumki to the land of Sri. Ganapathi Bhat, and that Special Tahsildar had not proposed the kumki land in favour of the petitioner's father who was the kumkidar, assignment in favour of 3[rd] respondent's W.P(C) No.20839 of 2007-E 2 husband was cancelled and the case was remanded to the Special Tahsildar, as per Ext.P1 order dated 31.3.1981. Thereafter, Ext.P2 order was passed assigning 0.67 acres of the said land in Re-survey No.838/3 in favour of the petitioner's father as Kumki to the kadim land in R.S.No.837/1 and Ext.P2(a) patta was issued in favour of the petitioner's father on 30.10.1981. 3. As against Ext.P1 order of the R.D.O, the 3[rd] respondent's husband Sri.Moolya filed a revision petition before the Board of Revenue. But it was dismissed as per Ext.P3, on the basis of a not pressed memo, on 24.8.1985. Thereafter, another petition was filed by the legal representatives, who are respondents 4 to 7 before the Commissioner of Land Revenue, and the Commissioner of Land Revenue as per Ext.P4 order remanded the matter to the Revenue Divisional Officer. Thereupon, as per Ext.P5 order dated 30.10.2001, the R.D.O confirmed the order passed in Ext.P1. Respondents 4 to 7 approached the Commissioner of Land Revenue and by Ext.P6 order dated 30.6.2003, the Commissioner of Land Revenue again confirmed the proceedings of the R.D.O. Thereafter, the respondents approached this Court in W.P(c).No.26858 of 2003, W.P(C) No.20839 of 2007-E 3 complaining that the Commissioner did not allow their request for adjournment. Therefore, this Court by Ext.P7 judgment dated 28.11.2006 set aside the order and directed the Commissioner to pass fresh orders after affording an opportunity of hearing to both parties. It was thereafter, Ext.P10 order was passed. 4. In Ext.P10, the Commissioner of Land Revenue, found that as per Rule 7A, the assignment made in favour of Sri.Ganapathi Bhat, the father of the petitioner herein was correct. However, it was further found that the land assigned to him was not being used. It was stated that the Revenue Divisional Officer in his letter dated 2.6.2007 had reported that there was no effective possession by anybody in the land and no improvements were effected in the property, which indicated that the assignee had violated Rule 8(2) of Kerala Land Assignment Rules. The Commissioner of Land Revenue, therefore ordered cancellation of assignment made as per Ext.P1. 5. It is at this stage that the petitioner has approached this Court challenging Ext.P10 mainly on the ground that there is no notice with respect to the proposal to cancel. Moreover, it is stated that the assignment was as kumki to the property which W.P(C) No.20839 of 2007-E 4 was in the possession of the petitioner's father, which does not require any cultivation or residence as provided under Rule 8 of the Kerala Land Assignment Rules. 6. Yet another contention is that when this Court directed the 1[st] respondent to consider the revision petition of the party respondents, the Commissioner of Land Revenue did not have any authority to go into any other aspect other than what was available in the revision petition filed by the respondents. 7. The respondents have filed counter affidavit, in tune with the order passed on Ext.P10. According to the respondents, even though the assignment was found in accordance with law, it was found that the petitioner had violated Rule 8(2). In paragraph 6 of the counter affidavit it is stated as follows:- “6. On the light of the judgment of the Honourable High Court in W.P(c).No.26858/2003, the Commissioner, Land Revenue after hearing the petitioners and examining the argument note filed by the respondent observed that the assignee Sri.Ganapathi Bhat, the father of the Writ Petitioner herein has violated Rule 8(2) of KLA Rules. The local inspection report of the Revenue Divisional Officer states that there is no effective possession or improvements in the property, which clearly indicates that the assignee has violated Rule 8(2) of KLA Rules. Hence, the assignment in favour of Sri.Ganapathi Bhat was ordered to be cancelled and the land to be taken possession by the Government as per Ext.P10 order.” It is further stated that Rule 7 of KLA Rules gives only W.P(C) No.20839 of 2007-E 5 preference to kumkidar, but that does not mean that the provisions are not applicable to them. 8. I heard the learned Counsel for the petitioner and learned Government Pleader. As contended by the learned counsel for the petitioner, the 1[st] respondent was only called upon to consider the revision petition filed by the respondents. In the revision petition the complaint of the respondent was against the assignment of land in favour of the petitioner. Therefore, the question regarding the correctness of assignment in favour of the petitioner alone was the subject matter for consideration. The violation of Rule 8(2) was not an issue for consideration in the revision petition filed by the respondents or an issue for which the petitioner was called upon for hearing. 9. Moreover, it is seen that Rule 8(3) reads as follows: “8. Conditions of assignment on registry:- xxxxxx xxxxx xxxxx xxxx xxxx xxxx xxx xxx (3) The registry shall be liable to be cancelled for contravention of the provisions in sub rule (1A) or sub-rule (2). The registry may be cancelled also, if it is found that it was grossly inequitable or was made under a mistake of facts or owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure. In the event of cancellation of the registry, the assignee shall not be entitled to compensation for any improvements he may have made on the land. The authority competent to order such cancellation shall be the authority which granted the registry, or one superior to it: xxxxxxx xxxxxxx xxxxx “ Clause 3 of Rule 8 provides for the procedure and conditions W.P(C) No.20839 of 2007-E 6 under which the assignment can be cancelled. Proviso to Rule 3 provides that no registry of land can be cancelled without giving the party or parties affected thereby, a reasonable opportunity of being heard. In this case the opportunity which was granted to the petitioner was with respect to the assignment, that too, on the basis of the claim raised by respondents 4 to 7 and not with respect to the cancellation of the assignment. Rule 8(3) provides for cancellation of the assignment when the provisions under sub rule 1(A) or sub rule 2 are contravened. Sub rule 1A provides that common occupied land assigned on registry shall not be alienable for a period of 3 days. The petitioner has not alienated the land. Sub rule 2 provides that the assignee shall reside in the land if it is granted as house site, or shall personally cultivate the same if it is granted for cultivation. Ext.P1 patta issued in favour of the petitioner does not provide that it is either for his residence or his cultivation. 10. The learned counsel for the petitioner points out that kumkidars who applied for assignment of kumki land are not liable to pay the value of trees, as can be seen from sub clause 4 of Rule 7A which provides that tree value except for Sandalwood shall not be collected from kumkidars. It is the contention that it 7 W.P(C) No.20839 of 2007-E is only for the purpose of the adjoining lands that assignment is granted as kumki and what is intended by the grant is to continue the use as on the date of assignment and the cancellation on the ground that the land was not being cultivated, cannot be made in respect of a kumki land. Referring to the nature of privileges of kumkidars in the land, the learned counsel referred to the judgments in **State of Mysore v. K.C.Adiga** [AIR 1976 S.C 853], **M.Rama Rao v. Appu** [AIR 1925 Mad.1226]. The judgment of this Court in **Govinda Batta v. Shankaranarayana Bhatta** [1990 (1) KLT S.N Case No.20] was also relied on in which this Court, after referring to the aforesaid judgments, held that kumki right cannot be curtailed or abridged except by a statutory law. It was held that Kerala Land Assignment Act and Rules framed would not provide for a preferential claim for the kumkidars for assignment of kumki property. In the judgment reported in **Bappani Rai v. Thyampanna Rai & Ors.** [AIR 1965 Ker.221], this Court had discussed the rights of kumkidars and held that all previous rights subsisting on the land in favour of anybody else will come to an end when the grantee takes it free from such rights. In paragraph 5 of this judgment the Apex Court held as follows: 8 W.P(C) No.20839 of 2007-E “The effect of a grant of datkhast of kumki lands in South Kanara is laid down by a series of decisions of the Madras High Court. In M.Rama Rao v. Appu, AIR 1925 Mad 1226, the Madras High Court reviewed some of the earlier decisions and held that when the Government granted kumki land on darkhast, any right previously granted by the wargdar in favour of a tenant regarding the kumki land came to an end and even if there was a mortgage right on the kumki land created by the wargdar, it also came to an end as soon as the grant of darkhast was made. In the case before me the disputed land was kumki land; and the Government granted darkhast in favour of the 1[st] respondent. The result is that all previous rights subsisting on the said land in favour of anybody came to an end and the grantee under the darkhast obtained his right free of all such previous rights. Naturally, if the appellant had any right on the land previously, that right must have come to an end on the grant of darkhast.” 11. Therefore, the action of the 1[st] respondent to resume the land on the ground that cultivation is not carried out in the land, without considering the very concept of kumki right is also unsustainable, apart from the fact that there was no notice for cancellation. Under the above circumstances, Ext.P10 to the extent it cancels the assignment of land in favour of the petitioner's father and directs to take possession of the land by Government is set aside. The Writ Petition is accordingly allowed. Sd/- **(P.V.ASHA, JUDGE)** rtr/