N. Asokakumar v Adimaly Block Panchayat & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **FRIDAY, THE 11TH DAY OF APRIL 2014/21ST CHAITHRA, 1936** ## **OP(C).No. 823 of 2014 (O)** ## **-------------------------------------** ## **MT(OP)NO.40/2011 OF MUNNAR SPECIAL TRIBUNAL COUT, MUNNAR (O.S.NO. 27/2004 of SUB COURT,THODUPUZHA )** **-------------------------** **PETITIONER:** - **-------------------** **N. ASOKAKUMAR, AGED 59 YEARS, (S/O.LATE KESAVAN NAIR), MANAYATH HOUSE, NO.34/1130, BALAKRISHNA MENON ROAD, BMRA 106, EDAPPALLY, KOCHI - 682 024.** **BY ADVS.SRI.T.K.MARTHANDAN UNNITHAN SRI.V.JAYAKUMAR** **RESPONDENTS:** - **------------------------** ## **1. ADIMALY BLOCK PANCHAYAT,** - **REPRESENTED BY ITS SECRETARY, ADIMALY P.O., DEVIKULAM TALUK, IDUKKI DISTRICT, PIN - 685 651.** **2. THE VILLAGE OFFICER,** - **PALLIVASAL VILLAGE, PALLIVASAL, 2ND MILE, PALLIVASAL, DEVIKULAM TALUK, IDUKKI DISTRICT, PIN - 685 566.** **3. THE VILLAGE OFFICER, ANAVIRATTY VILLAGE, ANAVIRATTY, DEVIKULAM TALUK, IDUKKI DISTRICT, PIN - 685 561.** **4. SUDHARMA,** - **W/O.VIJAYAN, THUNDIYIL HOUSE, KALLAR, KURISUPARA KARA, ANAVIRATTY VILLAGE, VATTAYAR (P.O), IDUKKI DISTRICT, PIN - 685 561.** **5. PALLIVASAL GRAMA PANCHAYAT** - **REPRESENTED BY ITS SECRETARY, 2ND MILE (P.O.), PALLIVASAL, DEVIKULAM TALUK, IDUKKI DISTRICT, PIN - 685 613.** **6. THE TAHSILDAR,** - **DEVIKULAM TALUK, DEVIKULAM, IDUKKI DISTRICT, PIN - 685 613.** **7. THE STATE OF KERALA** - **REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN - 695 001.** **R2,R3,R6 & R7 BY SPL.GOVERNMENT PLEADER SMT.SUSHEELA R.BHAT** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08-04-2014, ALONG WITH OP(C)NO. 824 OF 2014, THE COURT ON 11-04-2014 DELIVERED THE FOLLOWING:** Msd. **OP(C).No. 823 of 2014 (O) -------------------------------------** ## **APPENDIX** ## **---------------** ## **PETITIONER(S)' EXHIBITS -------------------------------------** **EXT.P1: TRUE COPY OF PARTITION DEED NO.1346 DATED 13.06.1986 OF THE DEVIKULAM SUB REGISTRY OFFICE. EXT.P2: TRUE COPY OF THE REGISTERED DOCUMENT NO.425 DATED 02.11.1114 ME REFERRING TO THE APPLICATION SR 28 OF 1112. EXT.P3: TRUE COPY OF THE TAX RECEIPT DATED 01.06.1120 ME ISSUED FROM THE PALLIVASAL VILLAGE. EXT.P3(A): TRUE COPY OF THE TAX RECEIPT DATED 11.06.1121 ME ISSUED FROM THE PALLIVASAL VILLAGE. EXT. P4: TRUE COPY OF THE TAX RECEIPT DATED 20.11.1950 ISSUED FROM THE PALLIVASAL VILLAGE. EXT.P4(A): TRUE COPY OF THE TAX RECEIPT DATED 05.12.1963 ISSUED FROM THE PALLIVASAL VILLAGE. EXT.P4(B): TRUE COPY OF THE TAX RECEIPT DATED 29.10.1964 ISSUED FROM THE PALLIVASAL VILLAGE TO THANDAPPER HOLDER NO.58. EXT.P4(C): TRUE COPY OF THE TAX RECEIPT DATED 06.04.1984 FOR 1.45 ACRES ISSUED TO THANDAPPER HOLDER NO.54-EASO UNNI. EXT.P4(D): TRUE COPY OF THE TAX RECEIPT 06.04.1984 ISSUED FROM PALLIVASAL VILLAGE TO THE THANDAPPER NO.58-PETITIONER'S FATHER SRI.KESAVAN NAIR. EXT.P5: TRUE COPY OF NOTICE DATED 03.12.1994 ISSUED FROM THE VILLAGE OFFICE, PALLIVASAL. EXT.P5(A): TRUE COPY OF TAX RECEIPT DATED 21.03.1990 ISSUED FROM THE PALLIVASAL VILLAGE.** **EXT.P5(B): TRUE COPY OF TAX RECEIPT DATED 04.02.1992 ISSUED FROM THE PALLIVASAL VILLAGE.** **EXT.P5(C): TRUE COPY OF TAX RECEIPT DATED 19.01.1993 ISSUED FROM THE PALLIVASAL VILLAGE.** **EXT.P5(D): TRUE COPY OF THE TAX RECEIPT DATED 20.02.1994 ISSUED FROM THE PALLIVASAL VILLAGE. EXT.P5(E): TRUE COPY OF THE TAX RECEIPT DATED 19.03.1997 ISSUED FROM THE PALLIVASAL VILLAGE.** **EXT.P6: TRUE COPY OF THE TAX RECEIPT DATED 25.05.2007 ISSUED FROM THE ANAVIRATTY VILLAGE.** Msd. **OP(C).No. 823 of 2014 (O) -------------------------------------** **EXT.P6(A): TRUE COPY OF THE TAX RECEIPT DATED 09.08.2012 ISSUED FROM THE ANAVIRATTY VILLAGE. EXT.P7: TRUE COPY OF KERALA GAZETTE NOTIFICATION DATED 08.05.1985 PUBLISHED IN THE KERALA GAZETTE DATED 25.06.1985. EXT.P8: TRUE COPY OF ROUGH SKETCH SHOWING THE LIE OF THE PROPERTY, KALLAR-MANKULAM ROAD AND KALLAR RIVER. EXT.P8(A): TRUE COPY OF THE CERTIFIED COPY OF SKETCH SHOWING PETITIONER'S PROPERTY. EXT.P9: TRUE COPY OF SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER SHOWING THE PLAINT SCHEDULE ITEM NO.2. EXT.P9(A): TRUE COPY OF ADDITIONAL WRITTEN STATEMENT DATED 15.06.2006 IN OS. NO.27/04 OF THE SUB COURT, THODUPUZHA. EXT.P10: TRUE COPY OF PETITION IA.NO.214/13 IN MTOP.NO.40/2011 OF THE MUNNAR SPECIAL TRIBUNAL. EXT. P11: TRUE COPY OF ORDER DATED 14.02.2014 PASSED BY THE MUNNAR TRIBUNAL IN MTOP.NO.40-2011. EXT.P12: TRUE COPY OF JUDGMENT DATED 03.02.2011 PASSED BY THE HON'BLE HIGH COURT OF KERALA IN WPC.NO.3487/2011.** **RESPONDENT(S)' ANNEXURES: ---------------------------------------------ANNEXURE - I: A TRUE COPY OF THE STATEMENT FILED ON BEHALF OF THE 3RD RESPONDENT IN W.A.NO.353/2011.** **//TRUE COPY//** **P.S.TO JUDGE.** Msd. “C.R.” **==> picture [295 x 99] intentionally omitted <==** Is the Munnar Special Tribunal competent to adjudicate disputes with respect to ownership, possession, use or any rights whatsoever even between private individuals concerning the land in Munnar area? 2. These original petitions have been filed under Article 227 of the Constitution of India challenging the finding rendered by the Munnar Special Tribunal ('the Tribunal' for short) on maintainability. The petitioners in the two original petitions are brothers who were allotted 3.95 acres and 5 acres respectively under a Partition Deed (Document No.1346/1986) executed in their family. Their father obtained a larger extent of 27.45 acres of land in Pallivasal Village of Devikulam Taluk on assignment under the Cardamom Rules, 1935 (Travancore). The petitioners had filed two separate suits in O.S.Nos.27/2004 and 25/2004 on the file of the court of the Subordinate Judge of Thodupuzha. The suits though initially one for injunction against trespass were 2 OP (C) Nos.823 & 824 of 2014 later amended as one for declaration of title and recovery of possession. The plea in the suits is that about 35 cents of land belonging to the family of the petitioners have been encroached upon for the purpose of constructing an approach road. The approach road has been allegedly laid to connect the bridge across the Kallar river to the Kallar-Mangulam road without even resorting to land acquisition. 3. The suits were transferred to the Tribunal after its constitution under Section 3 of the Munnar Special Tribunal Act, 2010 ('the Act' for short) which commenced sitting on 16-2-2011. The respondents (the defendants in the suits) are the Adimali Block Panchayat, Pallivasal Grama Panchayat, the Tahsildar, the Village Officers etc. The third defendant in the suits who was earlier a ward member and now the Vice President of the Grama Panchayat has however been impleaded in his personal capacity. The petitioners contend that the adjudication in the suits partakes the character of a private dispute by the junction of the third defendant. It is the case of the petitioners that the references to the Tribunal are hence unwarranted 3 OP (C) Nos.823 & 824 of 2014 and that the cases have to be returned to the court of the Subordinate Judge. The Tribunal has by the orders impugned held that the references are maintainable and that it has got jurisdiction even if the adjudication is of private dispute. 4. I heard Mr.T.K.M.Unnithan, Advocate on behalf of the petitioners and Mrs.Susheela R.Bhat, Special Government Pleader on behalf of the respondents in these two original petitions. 5. A reference to the definition of the term 'Dispute' under Section 2(d) of the Act is more than sufficient to resolve the controversy and the same is extracted hereunder:- (d) 'Dispute' means all disputes with respect to ownership, possession, use or any rights what so ever over or concerned the land in Munnar area as well as all constructions and other uses of the land in such area which are pending before any authority or courts. A cursory look at the preamble of the Act also reveals that its purpose is to settle once and for all disputes within a fixed time limit pending before the various authorities including this Court. The disputes are OP (C) Nos.823 & 824 of 2014 4 ofcourse confined to the land in Munnar area which is rich in flora and fauna requiring preservation and comprises of the following villages: i) Chinnakanal ii) Kannan Devan Hills iii) Santhanpara iv) Vellathooval v) Anavilasam vi) Pallivasal vii) Anaviratty & viii) Bison valley The Act no where indicates that the jurisdiction of the Tribunal under the Act is confined to adjudication of disputes between a private individual on the one side and the Government officials on the other side. The all embracing definition of the term 'dispute' in the Act takes in the adjudication of issues even between private individuals. The only limitation is that the dispute should be with respect to ownership, possession, use or any rights whatsoever over the land in Munnar area in the 8 villages aforestated. 6. It is of course true that the Tribunal has 5 OP (C) Nos.823 & 824 of 2014 no original jurisdiction to receive plaints but gets jurisdiction only on reference by the civil court, any other authority or this Court. A Division Bench of this Court had occasion to notice this aspect in M/s.Kannan Devan Hills Plantation Co. (P) Ltd. v. State of Kerala [2010(4) KLT 24] as follows:- A combined reading of S.3 sub-s(9), S.4 and S.5, we are of the opinion that the Tribunal, contemplated under the said Act, does not have any original jurisdiction in the sense that it cannot entertain any dispute or a cause, if approached by any person who has a “dispute” within the meaning of the expression contained in S.2 (d) of the Act. Under S.4, if such a dispute is raised before any Court or authority, such dispute shall automatically stand transferred to the said Tribunal. It is only on such a transfer the Tribunal acquires the jurisdiction to resolve the dispute. 7. I directed the Registry of this Court to call for a report from the Tribunal as regards the details of cases hitherto disposed of and also pending consideration on its file. The report obtained reveals that only 88 cases have been disposed of till date 6 OP (C) Nos.823 & 824 of 2014 (most of which went for default) and 76 cases are pending disposal on the file of the Tribunal. It is not as if that there are no other disputes pending in relation to the land in Munnar area in the court of the Subordinate Judge of Thodupuzha. About 19 cases are pending on its file awaiting reference and more number of cases on the file of the court of the Munsiff of Devikulam of similar status. A query was put to the Special Government Pleader as to why the cases pending in the courts of the Subordinate Judge and Munsiff are not being transferred to the Tribunal. 8. My attention was drawn to the judgment in W.P (C) No.3487/2011 on the file of this Court which records the submission of the then Additional Advocate General about the amendment to the Act. The Additional Advocate General had submitted that there is a proposal for amendment to the Act and this Court therefore directed that no private disputes need be referred. Only the disputes involving the Government was directed to be referred to the Tribunal pending amendment to the Act and this stand is seen followed in the judgment in W.P (C) No.3241/2011 of this Court also. The Special OP (C) Nos.823 & 824 of 2014 7 Government Pleader has filed a statement in OP (C) No.823/2014 clarifying that no amendment has been made and that the Act 'still governs the field'. It should reasonably be understood that any proposal for amendment is still at the stage of infancy and that the Act which came into effect on 14.6.2010 applies fortiori. 9. More than three years have elapsed since the disposal of W.P (C) Nos.3487/2011 and 3241/2011 and there is no sign of any amendment to the Act as revealed by the pleadings. The very purpose of the Act is to give a quietus to all disputes and the Government is even empowered to order cessation of the functioning of the Tribunal under Section 12 of the Act thereafter. The preamble of the Act inter alia reads as follows:- AND WHEREAS, the Government intends to settle once and for all these disputes by constituting a Special Tribunal for taking a final decision thereon within a fixed time-limit. An expeditious disposal of the disputes is contemplated by the Act and it is no longer proper for the suits being held up in the courts of the Subordinate Judge 8 OP (C) Nos.823 & 824 of 2014 and the Munsiff in relation to Munnar area. Moreover there is a total bar of jurisdiction for the civil court to decide or deal with any question or matter required to be determined by the Tribunal under Section 10 of the Act. It necessarily follows that all suits in relation to the lands in Munnar area shall forthwith be transferred to the Tribunal for disposal as per law. 10. One another factor which disturbs me is that the Government have not yet made rules under Section 11 of the Act which may perhaps provide for execution of the decree and orders. The Act is silent as to how the decree in favour of a private individual has to be executed even though the Government can call in aid other enactments for execution. No case is brought to my notice about the Government having taken steps to resume any land under the Kerala Land Conservancy Act, 1957 pursuant to the verdict of the Tribunal. I am sure that the Government will address itself to that issue and take remedial steps soon so that the verdict of the Tribunal is executed in full vigour. 11. The upshot of the discussion is that the 9 OP (C) Nos.823 & 824 of 2014 orders of the Tribunal holding that the reference to it is maintainable call for no interference in this supervisory jurisdiction. The mere fact that the validity of the Act is under challenge in a few writ petitions is no ground to delay the reference or answering the same by the Tribunal. There will therefore be a direction to the Tribunal to dispose of M.T.(OP) Nos.40/2011 and 110/2011 pending on its file within a period of 8 months from today. The petitioners shall be given full opportunity to place their case which may necessitate detailed examination of the documents and adducing of evidence. The Original Petitions are disposed of. No costs. V.CHITAMBARESH, Judge. nj.