M.O. Cheriyan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY, THE 03RD DAY OF DECEMBER 2020 / 12TH AGRAHAYANA, 1942** ## **WP(C).No.20752 OF 2019(T)** ## **PETITIONER:** **M.O.CHERIYAN, AGED 71 YEARS, S/O. OOMMAN, MELATHIL, EDATHITTA MURI, EDATHITTA P.O., KODUMON VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.B.MOHANLAL** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 THE DISTRICT COLLECTOR, COLLECTORATE, PATHANAMTHITTA P.O., PATHANAMTHITTA 689 645.** - **3 THE TAHASILDAR(LAND RECORDS), ADOOR P.O., PATHANAMTHITTA 691 523.** - **4 THE TALUK SURVEYOR, OFFICE OF THE TAHASILDAR (LAND RECORDS), ADOOR P.O., PATHANAMTHITTA 691 523.** - **5 THE VILLAGE OFFICER, KODUMON VILLAGE, KODUMON P.O., PATHANAMTHITTA 691 555.** ## **ADV.SMT.VIDYA, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1711-2020, THE COURT ON 03-12-2020 DELIVERED THE FOLLOWING:** W.P.(C)No.20752 of 2019 2 ## **JUDGMENT** The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P9 order dated 10.06.2019 of the 3[rd] respondent Tahsildar (Land Records), whereby the said respondent declined the request made by the petitioner to rectify the mistakes in resurvey record in respect of 88 cents of property owned by the petitioner and his wife Smt.Ammini Cheriyan, covered by Ext.P1 sale deed No.9/1991 of the Sub Registrar Office, Adoor, Ext.P2 sale deed No.113/1990 of the Sub Registrar Office, Adoor and Ext.P3 tax receipt dated 01.11.1994 issued by the 5[th] respondent Village Officer. The petitioner has also sought for a writ of mandamus commanding the respondents to rectify the mistake in the re-survey records of 88 cents of property of the petitioner and his wife, comprised in old Sy.Nos.339/5A, 201/1/1/85, 201/17/88, 201/1/1/103, 188/6 and 201/4 (Re.Sy.No.234/4 in Block No.22) and in old Sy.Nos.188/7/1, 188/5A, 188/5B (Re.Sy.No.222/3 in Block No.22) of Kodumon Village, covered by Ext.P1 sale deed No.9/1991 and Ext.P2 sale deed No.113/1990 of W.P.(C)No.20752 of 2019 3 the Sub Registrar Office, Adoor and Ext.P3 tax receipt dated 01.11.1994, under Section 13A of Kerala Survey and Boundaries Act, 1961 within a stipulated time, as directed by this Court, and to accept tax in respect of the entire property from the petitioner and his wife. The further relief sought for is a consequential declaration and also a direction to accept tax for the entire extent of 6.24 acres of property from the petitioner and his wife. 2. On 30.07.2019, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government pleader took notice for the respondents. 3. Going by the averments in the writ petition, the petitioner and his wife are having absolute title, possession and enjoyment of property having an extent of 3.16 acres and another extent of 3.08 acres obtained by virtue of Exts.P1 and P2 sale deeds. They effected mutation vide Tandaper Account Nos.9485 and 9484 of Kodumon Village, and remitted basic tax as evidenced by Ext.P3 tax receipt dated 01.11.1994 issued by the 5[th] respondent Village Officer, for the year 1993-94. The document marked as Ext.P4 is the tax receipt dated 27.02.1996 W.P.(C)No.20752 of 2019 4 issued by the 5[th] respondent, for the year 1995, in which the total extent of the property is shown as 5.54 acres, as against 6.24 acres (3.16 + 3.08), and the remaining 0.7 acres of land was not included as it is shown as Government land. The petitioner submitted Ext.P5 application dated 25.11.1996 before the ReSurvey Superintendent, Adoor with a request to rectify the mistakes in the re-survey records. The document marked as Ext.P6 is the basic tax receipt dated 11.05.2016 issued by the 5[th] respondent for the year 2016-17. The petitioner submitted Ext.P7 application before the 3[rd] respondent Tahsildar, under the provisions of the Kerala Survey and Boundaries Act, requesting to rectify the mistake in the re-survey records. The 3[rd] respondent forwarded the said application to the 4[th] respondent for consideration. Alleging inaction on the part of respondents 3 to 5 to survey the property and to rectify the defects in the re-survey records, the petitioner approached this Court in W.P.(C)No.3857 of 2018. That writ petition was disposed of by Ext.P8 judgment dated 21.02.2018 directing the 3[rd] respondent herein to consider the request made by the petitioner and take necessary steps, W.P.(C)No.20752 of 2019 5 within a period of three months, with notice to all affected persons. Alleging non-compliance of the directions contained in Ext.P8 judgment, the petitioner filed Cont.Case(C).No.457 of 2019. The 3[rd] respondent after the receipt of notice in the Contempt Case passed Ext.P9 order dated 10.06.2019, wherein it is stated that the petitioner failed to produce patta in respect of the property obtained by the previous owner and the Secretary of Kodumon Grama Panchayat submitted a letter stating that puramboke land in the vicinity of Mullotu Dam has to be ascertained and as such, the application made by the petitioner could not be considered for the time being. By Ext.P10 order dated 03.07.2019, this Court closed Cont.Case(C)No.457 of 2019 giving liberty to the petitioner to challenge Ext.P9 order. 4. In the writ petition, it is averred that the the petitioner and his wife purchased the property from its previous owner Sri.Eapan Varghese and Smt.Marykutty Eapan, who obtained that property by virtue of Ext.P11 sale deed dated 03.05.1989 of the Sub Registrar Office, Adoor. As stated in Ext.P11, they obtained that property from its previous owner Sri.Ayyan, S/o.Sankaran, W.P.(C)No.20752 of 2019 6 who had obtained that property by virtue of a patta in LA No.13/1998 issued by the 4[th] respondent. Thereafter, Sri.Ayyan sold the property to Sri.Eapan Varghese and Smt.Jolly Eapan. They sold the property to the petitioner and his wife. At the time of registration of sale deeds, the Sub Registrar, Adoor verified the patta and nobody has claimed any right over that property. Therefore, respondents 3 to 5 ought to have taken steps to rectify the mistake in the re-survey records and effected mutation of 88 cents of property (68+20) wrongly assigned as Government land. Pointing out the above aspect, the petitioner submitted Ext.P12 representation dated 25.06.2019 before the 3[rd] respondent. 5. The petitioner approached the 4[th] respondent with a request to obtain a copy of the patta. The 4[th] respondent by Ext.P13 reply dated 27.09.2017 informed the petitioner that, on verifying the records in the office, the pattayam file is not available and hence a copy of the patta could not be issued. Thereafter the petitioner obtained Ext.P14 relevant extract of pattayam register from the office of the 3[rd] respondent Tahsildar W.P.(C)No.20752 of 2019 7 (Land Records), under the Right to Information Act, 2005. Relying on Ext.P14, the petitioner would contend that the respondents ought to have found that the petitioner and his wife are still holding the entire extent of 6.24 acres of property covered by Exts.P1 and P2, which is well demarcated by separate boundaries. Therefore, the application made by the petitioner to rectify the mistake in the re-survey records could have been allowed by effecting mutation of the entire property and by accepting tax from the petitioner and his wife. The 3[rd] respondent is the statutory authority under the Kerala Survey and Boundaries Act to rectify the mistake in the re-survey records, who failed to rectify that mistake, by declining the request made by the petitioner in Ext.P7 application. 6. A statement has been filed on behalf of the 3[rd] respondent Tahsildar (Land Records), opposing the reliefs sought for in this writ petition. 7. In the statement, it is stated that, in compliance of the directions contained in Ext.P8 judgment of this Court in W.P. (C)No.3857 of 2018, the 4[th] respondent Taluk Surveyor W.P.(C)No.20752 of 2019 8 conducted site inspection. As per the report of the Taluk Surveyor, the properties are in Rs.Sy.Nos.234/2, 222/3 and 234/4 in Block No.20 of Kodumon Village. On inspection, it was found that, except 47.31 ares in Re.Sy.No.234/3, remaining properties are included in the re-survey records in the name of the petitioner and his wife. The reason for not including the property in re-survey No.234/3 (old Sy.No.188/7) is that, as per the re-survey records, an extent of 53 ares in Re.Sy.No.234/3 (old Sy.No.188/7) is Sarkar Tarisu. Pursuant to the directions contained in Ext.P8 judgment, a personal hearing was conducted. The petitioner failed to submit the original pattayam with regard to the property in Sy.No.234/3 (old Sy.No.188/7). On verifying pattayam register No.II in the office of the 3[rd] respondent, it was found that the disputed land comprised in old Sy.No.188/7-1 having an extent of 1.17 acre was assigned to Sankaran Ayyan, Charivu Thundil Mangad, Enadimangalam Village, vide patta No.LA13/88 dated 02.05.1989. The said Sankaran Ayyan on the next day of assignment, i.e., on 03.05.1989, transferred the patta land to Smt.Marykutty Eapan, Mangalassery Muri, W.P.(C)No.20752 of 2019 9 Kaippattoor, Vallicode Village, as per Ext.P11 sale deed bearing No.1452 of 1989 of the Sub Registrar Office, Adoor. Thereafter, the petitioner and his wife purchased the said land from Smt.Marykutty Eapan on 01.11.1990, vide Ext.P2 sale deed bearing No.113/1990 of the Sub Registrar Office, Adoor. The petitioner failed to produce the original patta No.LA13/88 issued in favour of Sri.Sankaran Ayyan. At the time of hearing, the petitioner was not able to prove the identity of the property. As the said land is Sarkar Tarisu, Ext.P7 application made by the petitioners was rejected by Ext.P9 order. By Ext.P10 order, Cont.Case (C)No.457 of 2019 was closed, giving liberty to the petitioner to challenge Ext.P9 order. Instead of availing the statutory remedy under Section 13A of the Kerala Survey and Boundaries Act, the petitioner has approached this Court in this writ petition, invoking the writ jurisdiction under Article 226 of the Constitution of India. In the statement, it is pointed out that, Sri.Sankaran Ayyan transferred the land assigned vide patta No.LA13/88 on the very next day of assignment, even without effecting mutation, and in violation of sub-rule (1) of Rule 8 of W.P.(C)No.20752 of 2019 10 the Kerala Land Assignment Rules, 1964. The said land is also proposed for Mullotu Dam Project, which is under consideration of the Government. 8. By order dated 28.11.2019, the learned Government Pleader was directed to produce the survey sketch of the 4[th] respondent Taluk Surveyor. Pursuant to that order, along with a memo filled by the learned Government Pleader dated 02.12.2019, a copy of the report and survey sketch dated 28.09.2018 of the 4[th] respondent Taluk Surveyor is placed on record. 9. The petitioner has filed a reply affidavit to the statement filed by the 3[rd] respondent, wherein it is stated that, Sri.Sankaran Ayyan sold the property assigned vide pattyam No.LA13/88 dated 02.05.1989 to Sri.Eapan Varghese and Smt.Jolly Eapan and they sold the property to the petitioner vide Ext.P1 sale deed bearing No.9/1991. The custodian of the patta is the 3[rd] respondent Tahsildar and it is his responsibility to verify the documents before finalising the proceedings and rectifying the mistakes in the re-survey records. The Sub Registrar, Adoor W.P.(C)No.20752 of 2019 11 verified the patta of the property and registered Exts.P1 and P2 sale deeds in favour of the petitioner and his wife and nobody has claimed any right over that property. Therefore, the respondents ought to have taken steps to rectify the mistakes in the re-survey records. The details of the patta granted to Sri.Sankaran Ayyan is clearly established by Ext.P14 relevant extract of the pattayam register maintained in the office of the 4[th] respondent. Therefore, the 3[rd ] respondent can verify Ext.P14 and rectify the mistakes in the re-survey records. The total extent of 124.55 ares and 127.82 ares of property included in Exts.P1 and P2 sale deeds are lying in one compact block. Out of the said property, 53 ares is wrongly included in Re.Sy.No.243/3 and classified as Sarkar Tarisu. The 4[th] respondent in his report dated 02.12.2010 recommended sub-division of 55 ares of property comprised in Rs.Sy.No.234/3 of Kodumon Village and recommended to assign 35.6 ares of property in Rs.Sy.No.234/5. Pursuant to the directions in the order of this Court dated 29.11.2019, the learned Government Pleader has produced a copy of the report and survey sketch of the 4[th] respondent Taluk Surveyor, along W.P.(C)No.20752 of 2019 12 with a memo dated 02.12.2019, as per which the property of the petitioner was wrongly classified as Government land, while conducting re-survey. Despite the above report, the respondents have not taken any steps to rectify the mistakes in the re-survey records. On 23.07.2019, the 3[rd] respondent issued Ext.P15 order dated 05.08.2019 pointing out that the assignment of the land covered by pattayam No.LA13/88, by virtue of Exts.P1 and P2 sale deeds, is in violation of sub-rule (1) of Rule 8 of the Kerala Land Assignment Rules, 1964. In the report filed by the Taluk Surveyor, produced along with the memo filed by the learned Government Pleader, it is categorically stated that the property in question was wrongly shown as Sarkar Tarisu, while conducting re-survey, without notice to the petitioner. The petitioner would also point out that, in view of Circular No.A3-263/2017-Revenue dated 03.10.2019, certain amendments are made to sub-rule (1) of Rule 8 of the Kerala Land Assignment Rules, 1964. In view of the said amendments, there is no violation of sub-rule (1) of Rule 8 of the said Rules in purchasing the property from Sri.Sankaran Ayyan by the predecessor in interest by the petitioner. W.P.(C)No.20752 of 2019 13 10. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 11. The petitioner and his wife are claiming absolute title, possession and enjoyment of property having an extent of 3.16 acres and another extent of 3.08 acres in Kodumon Village, on the strength of Ext.P1 sale deed No.9/1991 and Ext.P2 sale deed No.113/1990 of the Sub Registrar Office, Adoor. They effected mutation vide Tandaper Account Nos.9485 and 9484 of Kodumon Village, and remitted basic tax as evidenced by Ext.P3 tax receipt dated 01.11.1994 issued by the 5[th] respondent Village Officer, for the year 1993-94. However, in Ext.P4 tax receipt dated 27.02.1996, for the year 1995, the total extent of the property is shown as 5.54 acres, as against 6.24 acres (3.16 + 3.08). According to the petitioner, the remaining 0.7 acres of land was not included, as it is shown as Government land. 12. Rule 4 of the Kerala Land Assignment Rules deals with purposes for which land may be assigned. As per Rule 4, Government lands may be assigned on registry for purposes of - personal cultivation, house sites and beneficial enjoyment of W.P.(C)No.20752 of 2019 14 adjoining registered holdings. Rule 5 deals with maximum limit to be assigned for cultivation. As per sub-rule (1) of Rule 5, the extent of land that shall be registered in favour of a single family for personal cultivation by members of the family shall not ordinarily exceed, in the case of unoccupied lands, not more than one acre of land whether wet or dry, in the plains and not more than one acre of wet land or three acres of dry land in hilly tracts and in the case of lands held on lease whether current or time expired or by way of encroachment not considered objectionable, where there are no valuable improvements effected on the land by the occupant, not more than one acre of land, whether wet or dry, in the plains and not more than one acre or wet land or three acres of dry land in hilly tracts; and where there are valuable improvements effected on the land by the occupant, not more than two acres of land wet or dry in the plains and not more than two acres of wet land or four acres of dry land in hilly tracts. 13. As per Note to sub-rule (1) of Rule 5, in the case of occupied lands and lands held on lease, whether current or time W.P.(C)No.20752 of 2019 15 expired, or by way of encroachment not considered objectionable, where the occupant has not effected valuable improvements on the lands, one acre of wet land in the plains shall be deemed to be equivalent to one acre of dry land, and one acre of wet land in the hilly tracts shall be deemed to be equivalent to three acres of dry lands; and in the cases of lands held on lease whether current or time expired or by way of encroachments not considered objectionable where the occupant has effected valuable improvements on the lands, one acre of wet land in the plains shall be deemed to be equivalent to one acre of dry land and one acre of wet land in the hilly tracts shall be deemed to be equivalent to two acres of dry land. 14. As per sub-rule (2) of Rule 5, when a family owns or holds any land over which it has proprietary right or has security of tenure, only the balance of extent of Government land necessary to make up the extent admissible under sub-rule (1) shall be granted to it on registry. Rule 6 deals with assignment for house site and for beneficial enjoyment and Rule 7 deals with priority to be observed in assignment. W.P.(C)No.20752 of 2019 16 15. Rule 8 deals with conditions of assignment on registry. Sub-rule (1) of Rule 8 substituted by SRO 477/69 dated 21.11.1969 in Kerala Gazette Ex.No.281 dated 22.11.1969 provides that lands granted on registry shall be heritable and alienable. Sub-rule (1A) of Rule 8 inserted by SRO 284/71 dated 03.08.1971 in Kerala Gazette Ex.No.346 dated 06.08.1971 provides that, notwithstanding anything contained in sub-rule (1), unoccupied lands assigned on registry shall not be alienable for a period of three years from the date of registry. As per the proviso to sub-rule (1A), the assignee may mortgage such lands (a) to the Government or Co-operative Institutions or the Tea Board or the Rubber Board or any other financial institution recognised by the Government in this behalf, as security for obtaining loans for agricultural or land improvement purposes or for growing tea or rubber, and (b) to the Government or Cooperative Institutions as security for obtaining loans for house construction under the Village Housing Project Scheme or any other housing schemes sponsored by the Government, if such house is required for the occupation of the assignee or his family. W.P.(C)No.20752 of 2019 17 16. As per sub-rule (2) of Rule 8, the assignee or a - - member of his family or his successor in interest shall reside in the land if it is granted as house site, or shall personally cultivate the same if it is granted for cultivation; and such residence or cultivation, as the case may be, shall commence effectively within a period of one year, from the date of receipt of the patta or of the provisional patta in cases where a provisional patta is issued in the first instance. 17. As per sub-rule (3) of Rule 8, the registry shall be - liable to be cancelled for contravention of the provisions in sub - rule (1) or sub rule (2) and the registry may also be cancelled, if it 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 W.P.(C)No.20752 of 2019 18 one superior to it. 18. As per the first proviso to sub-rule (3) of Rule 8, no registry of land shall be cancelled without giving the party or parties affected thereby, a reasonable opportunity of being heard. As per the second proviso to sub-rule (3) of Rule 8, no assignment of land shall be cancelled if the annual family income of the transferee occupant does not exceed Rs.10,000/- and who does not own or possess any landed property, anywhere in the State. As per the third proviso to sub-rule (3) of Rule 8, in the case of a transfer of land covered by the above Proviso the assignee shall not be eligible for further assignment of land anywhere in the State. 19. In **Varkey Abraham v. Secretary to Government, Revenue Department and others [2007 (3) KHC 365]** , a Division Bench of this Court held that, Rule 5 of the Kerala Land Assignment Rules provides for the maximum extent of land that could be assigned on registry for purposes of personal cultivation, house sites and beneficial enjoyment of adjoining registered holdings. As per clause (b) of sub-rule (1) of Rule 5, in the case W.P.(C)No.20752 of 2019 19 of lands held on lease, whether current or time expired or by way of encroachment not considered objectionable, the lessee or the encroacher as the case may be will be eligible for assignment of not more than 50 cents of land, whether wet or dry, in the plains, and one acre of land, whether wet or dry in hilly tracts. Land, if any, held in excess of this area shall be surrendered to Government and no compensation shall be payable for the lands so surrendered. Clause (b) of Rule 5 was substituted by the amendment which came into force on 03.03.2005. Prior to amendment, clause (b) provided for assignment of larger extents, namely, not more than one acre in the plains and not more than one acre of wet land or three acres of dry land in hilly tracts, if there are no improvements in the land, and where there are improvements effected on the land by the occupant, not more than two acres in the plains and not more than two acres of wet land or four acres of dry land in hilly tracts. It is stated by the petitioner that the land in question is not in hilly tracts. Therefore, the maximum extent that could be assigned, before the amendment of the Rules in 2005, is one acre or two acres, W.P.(C)No.20752 of 2019 20 depending on the question whether the petitioner has effected valuable improvements in the land. The amended Rules would apply to any assignment after the amendment, irrespective of the date of application and therefore, the maximum extent that could be assigned to the petitioner, if he is entitled to get assignment, is not more than fifty cents of land. 20. In **Varkey Abraham** , the Division Bench held that, various provisions in the Kerala Government Land Assignment Act and the Kerala Land Assignment Rules would unmistakably show that the Act and Rules are intended to protect landless people by assigning to them Government lands for cultivation and other purposes. The Act provides for assignment of Government land absolutely or subject to such restrictions, limitations and conditions as may be prescribed. The Rules provides for assignment of lands on registry for purposes of personal cultivation. The Rules also provides for granting assignment of small extents of land for constructing houses and for the beneficial enjoyment of adjoining registered holdings. The Rules contain provisions for extending priority to landless people, W.P.(C)No.20752 of 2019 21 members of Scheduled Caste and Scheduled Tribes, Exservicemen, persons disabled in active military service, persons who are dependants of those who are killed or disabled while in active military service, small holders whose family income is less than Rs.10,000/-, certain category of kumkidars, etc. The procedure for assignment is also provided in the Rules. Provision is made for preparing the lists of lands to be reserved for Government or public purposes and the lands to be set apart for assignment on registry. The lists are to be approved by the Government or an authorized authority. The authority to approve the list of lands available for lease or license shall be District Collector. Various authorities are also provided to whom the applications under the different categories are to be submitted. The Act and Rules are not intended for enriching persons who hold extensive lands. Assignment on Registry of Government lands to such persons would defeat the very purpose of the Act and Rules. There is no vested right in any person to claim assignment on registry of Government land. The claim made by the petitioner originated and continued on encroachment. Such a W.P.(C)No.20752 of 2019 22 person cannot have any legal right to claim that land. Provision for assignment of lands to encroachers is with a specific purpose. It is intended to protect such of the encroachers who are landless and downtrodden. They too have no vested right to get assignment on registry. The scheme of the Act and the Rules would unmistakably show it. Mighty people do not come anywhere near the benevolent protective umbrella of the Act and Rules. True, a person may desire to annex to his property the neighbouring lands, though it is Government land. Such a desire is not recognised or protected under the Act and Rules. 21. In the instant case, the petitioner and his wife purchased the property from its previous owner Sri.Eapan Varghese and Smt.Marykutty Eapan. Smt.Marykutty Eapan obtained a portion of that property having an extent of 1.17 acre in old Sy.No.188/7-1 Kodumon Village by virtue of Ext.P11 sale deed dated 03.05.1989 of the Sub Registrar Office, Adoor. As per Ext.P11, she obtained that property from its previous owner Sri.Ayyan, S/o.Sankaran, who had obtained that property by virtue of a patta in LA No.13/1998 issued by the 4[th] respondent. W.P.(C)No.20752 of 2019 23 Thereafter, Sri.Ayyan sold the property to Smt.Jolly Eapan, who sold that property to the petitioner's wife. 22. The document marked as Ext.P14 is the relevant extract of pattayam register No.II in the office of the 3[rd] respondent Tahsildar (Land Records), as per which, the disputed land comprised in old Sy.No.188/7-1 having an extent of 1.17 acre was assigned to Sankaran Ayyan, Charivu Thundil Mangad, Enadimangalam Village, vide patta No.LA13/88 dated 02.05.1989. In Ext.P14, 'date on which first patta issued' is shown as 02.05.1989. The said Sankaran Ayyan, on the next day of assignment, i.e., on 03.05.1989, transferred the patta land to Smt.Marykutty Eapan, Mangalassery Muri, Kaippattoor, Vallicode Village, as per Ext.P11 sale deed bearing No.1452 of 1989 of the Sub Registrar Office, Adoor. In the statement filed by the 3[rd] respondent it is pointed out that, Sri.Sankaran Ayyan transferred the land assigned vide patta No.LA13/88, on the very next day of assignment, even without effecting mutation, and in violation of sub-rule (1) of Rule 8 of the Kerala Land Assignment Rules, 1964. The said land is also proposed for Mullotu Dam Project, W.P.(C)No.20752 of 2019 24 which is under consideration of the Government. Thereafter, the petitioner and his wife purchased the said land from Smt.Marykutty Eapan, on 01.11.1990, vide Ext.P2 sale deed bearing No.113/1990 of the Sub Registrar Office, Adoor. 23. The petitioner submitted Ext.P7 application before the 3[rd] respondent, with a request to rectify the mistake in the resurvey records. That application stands rejected by Ext.P9 order dated 10.06.2019, wherein it is stated that the petitioner failed to produce patta in respect of the property obtained by the previous owner and the Secretary of Kodumon Grama Panchayat submitted a letter stating that puramboke land in the vicinity of Mullotu Dam has to be ascertained and as such, the application made by the petitioner could not be considered for the time being. 24. As per the statement filed by the 3[rd] respondent, the 4[th] respondent Taluk Surveyor submitted a report, after conducting site inspection, as per which, the properties are in Rs.Sy.Nos.234/2, 222/3 and 234/4 in Block No.20 of Kodumon Village. On inspection, it was found that, except 47.31 ares in W.P.(C)No.20752 of 2019 25 Re.Sy.No.234/3, remaining properties are included in the resurvey records in the name of the petitioner and his wife. The reason for not including the property in re-survey No.234/3 (old Sy.No.188/7) is that, as per the re-survey records, an extent of 53 ares in Re.Sy.No.234/3 (old Sy.No.188/7) is Sarkar Tarisu. 25. According to the petitioner, at the time of registration of sale deeds, the Sub Registrar, Adoor verified the patta and nobody has claimed any right over that property. Therefore, respondents 3 to 5 ought to have taken steps to rectify the mistake in the re-survey records and effected mutation of 88 cents of property (68+20) wrongly assigned as Government land. 26. It is pertinent to note that, in Ext.P11 sale deed bearing No.1452 of 1989 of the Sub Registrar Office, Adoor, dated 03.05.1989, executed by Sri. Sankaran Ayyan, whereby property having an extent of 1.17 acre in old Sy.No.188/7-1 Kodumon Village, assigned vide patta No.LA13/88, was transferred to Smt.Marykutty Eapan, 'date on which first patta issued' is conspicuously absent. The recitals in Ext.P11 sale deed are to the effect that Sankaran Ayyan obtained possession and W.P.(C)No.20752 of 2019 26 enjoyment of the property vide patta No. LA13/88. As evident from Ext.P11 sale deed, Sri.Sankaran Ayyan transferred the land assigned vide patta No.LA13/88, on the very next day of assignment, even without effecting mutation, and in violation of sub-rule (1) of Rule 8 of the Kerala Land Assignment Rules. 27. As held by a Division Bench of this Court in **Varkey Abraham** , the provisions under the Kerala Government Land Assignment Act and the Rules made thereunder are intended to protect landless people by assigning to them Government lands for cultivation and other purposes. The Act and Rules are not intended for enriching persons who hold extensive lands. 28. In the instant case, the land assigned to Sri.Sankaran Ayyan, vide patta No.LA13/88 on 02.05.1989, was transferred to Smt.Marykutty Eapan on the very next day, i.e., on 03.05.1989 vide Ext.P11 sale deed No.1452 of 1989 of the Sub Registrar Office, Adoor. Thereafter, the said property was transferred to the petitioner's wife, on 11.01.1990, vide Ext.P2 sale deed No.113/1990 of the Sub Registrar Office, Adoor. In Ext.P15 order dated 05.08.2019, the 3[rd] respondent Tahsildar (Land Records), W.P.(C)No.20752 of 2019 27 while rejecting the request made by the petitioner in Ext.P12 representation dated 25.06.2019, has made it clear that vide Ext.P11 sale deed, Sri.Sankaran Ayyan transferred the land assigned vide patta No.LA13/88, on the very next day of assignment, even without effecting mutation, and in violation of sub-rule (1) of Rule 8 of the Kerala Land Assignment Rules. 29. In such circumstances, this Court finds no reason to interfere with Ext.P9 order of the 3[rd] respondent Tahsildar (Land Records), invoking the discretionary jurisdiction of this Court under Article 226 of the Constitution of India, since the request made in Ext.P5 application is in respect of land covered by patta No.LA13/88, transferred in violation of the provisions under the Kerala Land Assignment Rules. 30. In the result, the writ petition fails and the same is accordingly dismissed. 31. The 3[rd] respondent Tahsildar (Land Records) shall initiate appropriate proceedings to cancel patta No.LA13/88 issued in favour of Sri.Sankaran Ayyan, for violation of the provisions under Rule 8 of the Kerala Land Assignment Rules, W.P.(C)No.20752 of 2019 28 after giving notice to all the affected parties, immediately on receipt of a certified copy of this judgment. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** W.P.(C)No.20752 of 2019 29 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1** **THE TRUE COPY OF THE SALE DEED NO. 9/1991 OF ADOOR SUB REGISTRY EXECUTED IN FAVOUR OF THE PETITIONER AND HIS WIFE SMT. AMMINI CHERIYAN.** - **EXHIBIT P2 THE TRUE COPY OF THE SALE DEED 113/1990 OF ADOOR SUB REGISTRY EXECUTED IN FAVOUR OF THE PETITIONER AND HIS WIFE SMT. AMMINI CHERIYAN.** - **EXHIBIT P3 THE TRUE COPY OF THE TAX RECEIPT DATED 11/11/1994 FOR THE YEAR 1993-1994 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER AND HIS WIFE SMT. AMMINI CHERIYAN.** - **EXHIBIT P4 THE TRUE COPY OF THE TAX RECEIPT DATED 27/2/1996 ISSUED BY THE 5TH RESPONDENT FOR THE YEAR 1995 TO THE PETITIONER.** - **EXHIBIT P5 THE TRUE COPY OF THE APPLICATION DATED 25/11/...... SUBMITTED BY THE PETITIONER BEFORE THE RE-SURVEY SUPERINTENDENT, ADOOR.** - **EXHIBIT P6 THE TRUE COPY OF THE TAX RECEIPT DATED 01/5/2016 ISSUED BY THE 5TH RESPONDENT FOR THE YEAR 2016-2017 TO THE PETITIONER.** - **EXHIBIT P7 THE TRUE COPY OF THE APPLICATION DATED 28/9/2017 FILED BY THE PETITIONER BEFORE THE TAHASILDAR, ADOOR.** **EXHIBIT P8** **THE TRUE COPY OF THE JUDGMENT DATED 21/2/2018 IN WPC NO 3857/2018 OF THIS HONBLE COURT.** W.P.(C)No.20752 of 2019 30 **EXHIBIT P9** **THE TRUE COPY OF THE ORDER NO. D714268/2017 DATED 10.6.2019 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P10 THE TRUE COPY OF THE JUDGMENT DATED 3/7/2019 IN CONTEMPT CASE (C0 NO/ 457/2019 OF THIS HONBLE COURT.** - **EXHIBIT P11 THE TRUE COPY OF THE SALE DATED DATED 3/5/1989 OF ADOOR SUB REGISTRY.** - **EXHIBIT P12 THE TRUE COPY OF THE REPRESENTATION DATED 25/6/2019 FIELD BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P13 THE TRUE COPY OF COMMUNICATION NO. A614216/17 DATED 27/9/2017 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P14 THE TRUE COPY OF THE RELEVANT PAGES OF THE PATTAYAM REGISTER OBTAINED BY THE PETITIONER FROM THE OFFICE OF THE 4TH RESPONDENT UNDER RIGHT TO INFORMATION ACT.** - **EXHIBIT P15 THE TRUE COPY OF THE ORDER NO.D714268/17 DATED 05/08/2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P16 THE TRUE COPY OF THE CIRCULAR NO.A3263/2017-REVENUE DATED 03/10/2019 ISSUED GOVERNMENT.** ## **RESPONDENTS' EXHIBITS:NIL** ## **TRUE COPY** ## **P.A. TO JUDGE**