M.A. Habeebullah v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 10TH DAY OF APRIL 2013/20TH CHAITHRA 1935** ## **WP(C).No. 13913 of 2011 (L)** **----------------------------** **PETITIONER(S): --------------------------** **M.A. HABEEBULLAH, MANNANCHERY HOUSE, PERUMBAVOOR P.O., ERNAKULAM DISTRICT-683 543.** **BY ADVS.SRI.NAGARAJ NARAYANAN,** **SRI.SAIJO HASSAN,** **SRI.RAJAN VELLOTH,** **SRI.PRATHAP PILLAI, SRI.RAFEEK. V.K.,** **SRI.BENOJ C AUGUSTIN, SRI.I.J.AUGUSTINE, SRI.SEBIN THOMAS.** **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT (R.C.) DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001.** **2. THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM-682 030.** **3. THE REVENUE DIVISION OFFICER, REVENUE DIVISIONAL OFFICE, MUVATTUPUZHA-686 661.** - **4. THE SPECIAL TAHSILDAR, (L.R.NO.V), KUNNATHUNADU TALUK, ERNAKULAM, COCHIN-19.** - **THE 4TH RESPONDENT IS CORRECTED AS** - **''THE TAHSILDAR, KUNNATHUNADU TALUK, PERUMBAVOOR, ERNAKULAM DISTRICT''.** **AS PER ORDER DATED 27.09.2011 IN I.A. NO.15100/2011.** **5. THE VILLAGE OFFICER, PERUMBAVOOR-683 543.** ## **BY GOVT. PLEADER MR.NOUSHAD THOTTATHIL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **WP(C).No. 13913 of 2011 (L)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE PATTAYAM DATED 18/12/1976. EXT.P2 COPY OF THE NOTICE DATED 10/08/1985 ISSUED BY THE TAHSILDAR. EXT.P3 COPY OF THE REPORT AND SKETCH DATED 04/04/2006. EXT.P4 COPY OF THE LETTER DATED 06/03/2008 ISSUED BY THE TAHSILDAR. EXT.P5 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 28/05/2008 BEFORE THE TAHSILDAR, REVENUE TALUK ADALATH. EXT.P6 COPY OF THE LETTER DATED 19/01/2009 OF THE 3RD RESPONDENT TO THE 1ST RESPONDENT. EXT.P7 COPY OF THE FORWARDING LETTER ALONG WITH THE DRAFT DIVESTING NOTIFICATION. EXT.P8 COPY OF THE LETTER DATED 22/09/2009 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXT.P9 COPY OF THE LETTER DATED 08/12/2009 ISSUED BY THE 1ST RESPONDENT. EXT.P10 COPY OF THE REPRESENTATION DATED 01/02/2010 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE CHIEF MINISTER. EXT.P11 COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT DATED 05/04/2010. EXT.P12 COPY OF THE PETITION DATED 19/06/2010 SUBMITTED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT. EXT.P13 COPY OF THE INFORMATION FURNISHED BY THE APPELLATE AUTHORITY DATED 27/01/2011. EXT.P14 COPY OF THE DECISION/PROCEEDINGS DATED 26/09/2011 OF THE MUNICIPALITY. EXT.P15 COPY OF THE PHOTOGRAPHS OF THE PETITIONER'S LAND INCLUDING THE LAND IN QUESTION AND THE ADJOINING ANGANWADI AND THE SURROUNDING AREA.** **RESPONDENT'S EXHIBITS:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** A.M.SHAFFIQUE, J. ---------------------------------------------------- W.P.(C) No. 13913 of 2011 - L --------------------------------------------------Dated this the 10[th] April, 2013 **J U D G M E N T** This writ petition is filed for a direction to respondents 1 to 3 to assign 31 Sq.M. of land in the possession of the petitioner in Re.Sy.No. 9 of Block 103 of Kunnathunad Taluk,Perumbavoor village after changing the description of the property in the revenue records. 2. The facts involved in the case would disclose that the petitioner obtained a patta from the Land Tribunal in respect of 3.76 Ares of land in Sy. No. 193/12A. When proceedings were taken for mutation, it was observed that the land in Sy. No. 193/12A only relates to 2.60 Ares, whereas an extent of 0.85 Sq. Mtrs was in a different survey number and that an extent of 0.31 Sq.Mtrs included in the aforesaid patta 2 W.P.(C) No. 13913 of 2011 - L is shown as 'puramboke'. Petitioner obtained title in respect of the said 0.85 Sq.meters from the person who was holding the property in his name. In respect of the puramboke land he submitted an application for assignment. When the application for assignment was being processed, it was found by the revenue authorities that this small extent of land was forming part of “Kulam puramboke” as seen from the BTR register. Therefore, petitioner submitted an application for changing the tenure of land. While this process was going on, it was noticed that the property vested in the Municipality by virtue of S.208A of the Municipalities Act. Therefore the revenue authorities made attempts to divest the said land which was not permitted by the Government on the ground that there was no provision for divesting of land which is already vested in the Municipality. W.P.(C) No. 13913 of 2011 - L **==> picture [7 x 9] intentionally omitted <==** According to the petitioner, though the land was shown as “Kulam puramboke” in the revenue records actually it is not a Kulam puramboke and the said area had already been converted into large scale commercial occupation and therefore the revenue authority ought to have corrected the entry in the BTR register. If such corrections had been carried out at the appropriate time, there would not have been an instance of vesting of the land in the Municipality and it would have remained as Government puramboke land. 3. Counter affidavit is filed by the State Government inter alia contending that in so far as the property is treated as Kulam Puramboke in the revenue records which is vested in the Perumbavoor Municipality, the Government cannot take any action in regard to this matter for assigning the land and it is W.P.(C) No. 13913 of 2011 - L 4 for the Municipality to consider the matter. 4. During the pendency of the writ petition, this Court had requested the respondent to submit a report on the present nature of the land in order to ascertain whether the property is still a Kulam puramboke. Report is filed as per memo dated 9.4.2013. As per the report it is seen that an extent of 10.55 Ares of land in Sy.No. 9 of Block No.103 is shown as Kulam Puramboke. On a verification of the premises it is found that in the said property there is an Anganwadi building bearing No.XI/317, XI/318, XI/316, 25 year old Anjily tree etc. It is further indicated that in respect of the property in possession of the petitioner, it is within the compound and there are trees of more than 20 years old and the petitioner is residing in the said property in Building No. XI/319, there is Mahagony tree, coconut tree and other W.P.(C) No. 13913 of 2011 - L 5 improvements in the property. 5. The existence of buildings in the said property would show that as matters stand now, it is not a “Kulam puramboke” as stated in the revenue records. 6. The question is the position of the land at the time when the petitioner acquired the patta. Going by the report, it is clear that there are several trees standing in the said property and there is no Kulam as such. Apparently, the property had been converted long back and therefore the revenue records by itself does not speak the actual situation. In fact, this Court had considered this matter in the light of the provisions of the Conservation of Paddy Land and Wetland Act, 2008 and a Division Bench in of this Court in **Praveen** K. v. **Land Revenue Coommissioner** (2010 (2) KHC 499) and a learned **Shahanas Shukkoor** v. Single Judge of this Court in 6 W.P.(C) No. 13913 of 2011 - L **Chelannur Grama Panchayat** (2009 (3) KLT 899) and another learned Single Judge of this Court in **Mohammed Abdul Basheer** v. **State of Kerala** (2012 (3) KLT 86) have come to the conclusion that the entry in the BTR cannot be the deciding factor as far as the provisions of the Act is concerned. The actual situation of the property is required to be verified before proceeding to take action under the said Act. Same is the situation here. It was once upon a time a Kulam puramboke. But the factual situation of the property has changed over a period of time which ought to be corrected by the revenue authorities which had not been done in the case. In the result, it was open for the revenue authorities to make necessary corrections in the revenue records depending upon the actual state of affairs other than the sticking on to the entry in BTR which was W.P.(C) No. 13913 of 2011 - L 7 prepared several years back. 7. That apart, this Court in **Jalaja Dileep** v. **RDO** (2012(3) KHC 273) had after making a detailed factual situation of the provision relating to correction in the revenue records had opined that the revenue authorities especially B.T.R. requires to be reclassified based on the actual situation available. 8. Under these circumstances before proceeding further, the question to be considered is whether there is vesting of the aforesaid Kulam puramboke within the Municipality under S.208A, which reads as under: “Transfer of water courses, springs, reservoirs, etc, to Municipalities,- (1) Notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 (8 of 1958) or in any other llaw for the time being in force, all public water courses including those which W.P.(C) No. 13913 of 2011 - L 8 the public water courses including those which the public have been using so as to give them easement rights over them, (other than rivers flowing through the municipal areas and other areas as may be specified by Government, by notification in the Gazette) whether existing at the commencement of this Act or were made; set up or constructed, thereafter whether made or constructed at the cost of the Municipality or not, along with their river beds, banks, springs, channels for irrigation and drainage, canals, lakes, backwaters, water courses all water whether or standing, flowing streams, reservoirs, ponds, water beds, fountains, wells, 'Kappus' channels stand pipes, and other water reservoirs and any land appertaining there to other than private property shall stand transferred to and shall W.P.(C) No. 13913 of 2011 - L 9 ## absolutely vest in the Municipality”. 9. Unless it is clear that at the time of vesting it was a Kulam puramboke and it remained as a Kulam puramboke, there cannot be any vesting at all. The facts involved in the above case especially the report now filed before this Court would indicate that it was never a Kulam puramboke at that point of time when such vesting had taken place. The petitioner got Ext.P1 patta on 18.8.1976. In that view of the matter, I am of the view that there was no vesting of the portion of the property which was in possession of the petitioner since 1976. 10. Apparently, the vesting of the property in the Municipality had come into effect only subsequent to the issuance of patta. Such being the position, as on the date when the petitioner came in possession of the property in the year 1976 this was never a “Kulam W.P.(C) No. 13913 of 2011 - L 10 puramboke”. As such the revenue authority ought to have corrected the revenue records on the basis of the request made by the petitioner in respect of the tenure of land and it could only be treated as “puramboke”. Such being the situation, the revenue authorities will have the jurisdiction to assign the land to the petitioner. 11. In the result, the writ petition is allowed as follows: (i) The petitioner shall submit a fresh representation to the Tahsildar, Kunnathunadu Taluk to the 4[th] respondent for correction of the BTR particulars as claimed by the petitioner and the Tahsildar shall pass appropriate orders to correct the tenure of land in the light of the observations made above within a period of two months from the date of receipt of a copy of this judgment. W.P.(C) No. 13913 of 2011 - L **==> picture [13 x 9] intentionally omitted <==** (ii) If in the event of the revenue authorities changing the tenure of the land as claimed by the petitioner, it is open for the petitioner to submit a fresh application for assignment of the aforesaid extent of land pointing out the earlier applications in this regard, which shall be disposed, in accordance with law. Sd/- **A.M.SHAFFIQUE, JUDGE.** rka /true copy/