O. Moideen v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **TUESDAY, THE 31ST DAY OF MAY 2016/10TH JYAISHTA, 1938** ## **WP(C).No. 37859 of 2007 (F)** **----------------------------** ## **PETITIONER:** ## **-----------** **O.MOIDEEN, S/O. KUNHAYAMU, RESIDING AT OTHUPALLIKKAL HOUSE, P.O. KANDAMANGALM (VIA), MANNARKKAD,PALAKKAD 678 583.** **BY ADVS.SRI.T.C.SURESH MENON** **SRI.P.S.APPU SRI.JIBU P THOMAS** **RESPONDENTS:** - **------------** **1. THE STATE OF KERALA** **SECRETARY TO LAND REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE REVENUE DIVISIONAL OFFICER OTTAPPALAM, PALAKKAD DISTRICT.** **3. THE ADDTIONAL TAHSILDAR, MANNARKKAD TALUK, PALAKKAD DISTRICT.** **ADDITIONAL R4 IMPLEADED** **ADDL.R4 MANOJ M., S/O. LATE ACHUTHAN NAIR, KANDATH VEEDU, KANDAMANGALAM P.O., PALAKKAD DISTRICT.** **ADDL.R4 IMPLEADED AS PER ORDER DATED 09.12.2009 IN I.A. NO.15240/2009** **R1 TO R3 BY SR.GOVERNMENT PLEADER SRI.MANOJ P.KUNJACHAN R4 BY ADV. SRI.M.SASINDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 37859 of 2007 (F)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** - **P1: TRUE COPY OF THE REGISTERED LEASE DEED** - **P2: TRUE COPY OF THE CERTIFIED COPY OF THE BASIC TAX RECEIPT ISSUED BY THE THIRD RESPONDENT DATED 03.03.1975** - **P3: TRUE COPY OF THE CERTIFIED COPY OF THE BASIC TAX RECEIPT ISSUED BY THE THIRD RESPONDENT DATED 08.01.1979** - **P4: TRUE COPY OF THE ORDER OF SUMMARY EVICTION ISSUED BY THE THIRD RESPONDENT DATED 04.09.2007** - **P5: TRUE COPY OF THE MEMORANDUM OF APPEAL PREFERRED BY THE PETITIONER DATED 25.09.2007** - **P6: TRUE COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT DATED 27.11.2007** - **P7: TRUE COPY OF THE RECEIPT DATED 14.11.1983** - **P8: TRUE COPY OF THE DECREE IN A.S. NO.12/2006 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF OTTAPALAM DATED 29.10.2011** ## **RESPONDENT'S EXHIBITS** - **R4(A) TRUE COPY OF THE PETITION PREFERRED BY THE PETITIONER AND 99 OTHERS BEFORE THE TAHSILDAR** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 37859 of 2007 (F) -----------------------------------------Dated this the 31[st] day of May, 2016 ## **J U D G M E N T** The petitioner is aggrieved with the order passed at Ext.P6. The petitioner contends that the petitioner has title over 20.2 cents in Survey No.37/8 of Kottopadam III Village, Mannarkkad Taluk. The petitioner relies on Ext.P1 title deed, in favour of the petitioner's father, to assert his right over the property. The petitioner also contends that, by Exts.P2 and P3, the father of the petitioner had remitted the tax for the said land and so has the petitioner, by Ext.P7, on the property devolving on him, at the death of his father. The petitioner contends that the summary proceedings initiated cannot be sustained and relies on the judgment of the Hon'ble Supreme Court in **State of Rajasthan v.** **-2-** ## **W.P.(C) No. 37859/2007** ## **Padmavati Devi - 1995 Supp. (2) SCC 290** . 2. The learned Counsel for the petitioner further contends that, on the basis of Ext.P1 title deed, the petitioner was successfully able to establish his title in a suit filed by a neighbour against the petitioner; the appellate decree of which is produced at Ext.P8. The petitioner hence contends that, in such circumstance, the petitioner has a bona fide dispute with respect to the property, which has to be adjudicated by the authorities and there could be no summary eviction ordered, as found in the fore cited judgment of the Hon'ble Supreme Court. 3. **Padmavati Devi** (supra) had been leasing out houses and shops on a land termed as “Sawai Chak” (Government land). She had also been selling pieces of land, when the Tahsildar under Section 91 of the Rajasthan Land Revenue Act, 1956, (for brevity 'Act'), ## **W.P.(C) No. 37859/2007** **-3-** sought to summarily evict the said person from the Government land. Padmavati Devi claimed title over the land on the basis of pattas, executed by the Government in favour of her husband; which by virtue of the tenancy laws created an absolute right on the tenant to occupy the land during his lifetime making him immune from eviction; which right, she asserted to have devolved on her. 4. The specific case of the occupier of government land was that her husband; by virtue of a valid tenancy acquired certain rights in respect of the land. It is in that circumstance that the Hon'ble Supreme Court held that Section 91 of the Act, prescribing a summary procedure for eviction of a person who is found to be in unauthorised occupation of the land, cannot be invoked where the person in occupation raises a bona fide dispute about his right to remain in occupation over the land. ## **W.P.(C) No. 37859/2007** **-4-** 5. The learned Counsel appearing for the 4[th] respondent would point out that there is no such bona fide dispute raised in the present case. The learned Counsel for the 4[th] respondent and the learned Government Pleader would contend that the suit itself was one for injunction simplicitor and no question of title was raised. In fact, only the decree of the suit has been produced herein, which also indicates the possession of the petitioner and not the title. As to the title, it is contended that the judgment in the suit and the judgment in appeal, found against the petitioner. It is also trite, argues learned Counsel for the 4[th] respondent, that payment of land tax would not confer any title. Further there is no regular and continuous payment of tax and what is revealed is only intermittent payment in 1978 and then in 1983. It is contended that the factual findings entered into in Ext.P6 cannot be ## **W.P.(C) No. 37859/2007** **-5-** interfered with by this Court under Article 226 of the Constitution of India. 6. This Court, based on the rival contentions raised, is of the opinion that there could be no interference caused to Ext.P6 under Article 226 of the Constitution of India. The Supreme Court judgment, relied on by the petitioner, would not come to the rescue of the petitioner, since, no bona fide dispute is discernible in the present case. It is only contended that, by virtue of a title deed executed by a third party, the petitioner has acquired title; which cannot be since the land belongs to the government. The assertion of the petitioner in the suit, found favour by the Courts below, as against a neighbour is only his possession and not title. That cannot stand against the Government which alleges unauthorised occupation of Government land. The judgment in appeal (from the suit) placed ## **W.P.(C) No. 37859/2007** **-6-** before this Court, across the Bar, also shows that the partition deed (executed subsequent to Ext.P1 deed) did not show title to the said property. Ext.P1 is a lease deed, based on which the lessees acquired a right to purchase the leased out properties from the land owner, under the Kerala Land Reforms Act. The purchase certificate with respect to the said land has also not been produced. Merely because the lease indicated certain Government lands having been included in the lease, that alone would not confer any title on the original land owner. 7. Considering the fact that the petitioner was entitled to file a revision under the Kerala Land Conservancy Act and the writ petition has been pending here for the last nine years, with an interim stay from eviction granted, it is only proper that the petitioner be directed to approach the revisional authority, especially since, Ext.P6 has to be examined on the basis of the **-7-** ## **W.P.(C) No. 37859/2007** facts above noticed. 8. In such circumstance, the petitioner is directed to file a revision within a period of two months from the date of receipt of the certified copy of this judgment, in which the additional 4[th] respondent has also to be impleaded. The petitioner would also be entitled to move a stay for eviction in the revision. Since there was a stay in existence, for the last nine years, there shall be no eviction effected for two months from the date of receipt of the certified copy of this judgment. If the petitioner does not move a revision within the time stipulated, the Government would be entitled to move for eviction. Since, this Court has specifically directed consideration and the issue was pending here from 2007 onwards, the rigour of limitation shall not be applicable to the revision filed as directed herein. The revision shall be considered ## **W.P.(C) No. 37859/2007** **-8-** independent of the observations made herein on facts but keeping in mind the law as decided herein. The writ petition is disposed of. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 1/6/16