Purushothaman Pillai v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940** # **WP(C).No. 1999 of 2019** ## **PETITIONER:** **PURUSHOTHAMAN PILLAI, AGED 75 YEARS S/O.BALAKRISHNA PILLAI, NANDIYATTY HOUSE, MANKOMBU P.O., ALAPUZHA-688 502** **BY ADVS. SRI.K.S.HARIHARAPUTHRAN SMT.BHANU THILAK** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 THE DISTRICT COLLECTOR COLLECTORATE, ALAPPUZHA-688 001** - **3 THE DISTRICT COLLECTOR, COLLECTORATE BUILDING, ALAPPUZHA-688 001** - **4 THE REVENUE DIVISIONAL OFFICE AND SUB COLLECTOR, REVENUE DIVISIONAL OFFICE, ALAPPUZHA -688 001** - **5 THE SPECIAL TAHSILDAR (LAND CONSERVANCY) TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURMA-695 003** - **6 TRAVANCORE DEVASWOM BOARD, DEVASWWOM BOARD OFFICE, NANDANKODE, KOWDIAR P.O., REP.BY ITS SECRETARY, THIRUVANANTHAPURAM-695 003** **BY ADV. SRI.P.V.KUNHIKRISHNAN, SC, TDB** **STI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 1999 of 2019** **2** ## **ALEXANDER THOMAS, J. =========================== W.P(C)No.1999 of 2019** **===========================** Dated this the 12[th] day of February, 2019 ## **JUDGMENT** The petitioner is aggrieved by the impugned eviction order dated 29.01.2018 issued by the 5[th] respondent-Tahsildar, as confirmed by the impugned Ext.P-3 Appellate Order dated 27.06.2018 issued by the 4[th] respondent-RDO and Ext.P-5 revisional order issued by the 3[rd] respondent-Deputy Collector, issued under the provisions of the Kerala Land Conservancy Act and the Rules framed thereunder. 2. The prayers in the above Writ Petition (Civil) are as follows: - _“i) to call for the records which lead to the issuance of Exts.Exts.P1, P3 and P5 and to issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing the same;_ - _ii) to issue an order staying the operation and implementation of Exts.P1, P3 and P5 orders, till the disposal of the above Writ Petition;_ - _iii) to grant such other reliefs which this Hon'ble Court may deem fit and proper in the interest of justice.”_ **WP(C).No. 1999 of 2019** **3** 3. Heard Sri.K.S.Hariharaputhran, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents 1 to 5. 4. As stated hereinabove, the respondents have now ordered for the eviction of the petitioner from the subject property on the ground he is in illegal and unauthorized possession of the property belonging to the 6[th] respondent-Travancore Devaswom Board and the impugned Exts.P-1, P-3 & P-5 orders are the original eviction order, appellate order and the revisional order passed by respondents 5, 3 & 2 respectively under the provisions of the Kerala Land Conservancy Act, 1957. The main contention raised by Sri.K.S.Hariharaputhran, learned counsel appearing for the petitioner is that the respondents have totally gone wrong, both on facts and law in holding that the petitioner is in illegal possession of the subject property and that it is even admitted by the respondents in Ext.P3 appellate order dated 27.06.2018 that the subject property was earlier granted on lease to the petitioner’s predecessor as per the provisions of the Kuthakapattom lease Rules and that therefore, the possession and occupation of the petitioner **WP(C).No. 1999 of 2019** **4** cannot be even remotely contended to be unauthorized or illegal and that consequently it is contended that since the occupation or possession cannot be termed as illegal or unauthorized, proceedings under the Land Conservancy Act, will not be maintainable in a case like the instant one. To buttress the said contention Sri.K.S.Hariharaputhran, learned counsel appearing for the petitioner would point out that the only objections taken up by the respondents in orders like Ext.P-3 is that the time span of kuthakapattom lease granted to the predecessor had expired and that therefore, there is no lease whatsoever and hence the possession of the petitioner is per se illegal, etc. It is urged by the petitioner that the said factual precision made by the respondents that merely because the time period of the kuthakapattom lease is over, is no ground whatsoever to say that the possession of the subject property by the lease holder or his successor can be said to be illegal or unauthorized, inasmuch as if the kuthakapattom lease is not renewed, the lessee or his successor will be able to enjoy the possession on the basis of the legal principles envisaged as in the doctrine of “sufferance”, which are invokable for the lessees after the period of the expiry of the lease period, as envisaged in **WP(C).No. 1999 of 2019** **5** common law as well as the provisions contained in Sec.106 of the Transfer of Property Act. The 4[th] paragraph of Ext.P-3 appellate order given on internal page thereof reads as follows: **"** ട� അപ�ൽ അപ�കയ�ൻ പ�ൽ _**07/03/2018, 10/04/2018, 20/06/2018**_ എന� ത�യത�കള�ൽ ട� കക�കളള വ�ച�രണ നടത�യത�ല� ബനളപട പ��ണങൾ �ര�പ#�ധ�ചത�ല� പള�ങന( വ�പ)ജ�ൽ സർപ- നമർ _**138/4**_ എ ൽളപട _**40**_ ചതരശ ��റർ വസ _**1952**_ മതൽ കതകപ�ട ഭ��യ�ളണന� _**,**_ വർഷങള�യ� ട� വസ കകവ#� ളവച( അനഭവ�ച( വരകയ�ളണന� _**,**_ അപ�ൽ കക�യ�യ ശ� _**.**_ ര��കഷ ��ക> വ�ച�രണ പവളയ�ൽ അറ�യ�ച _**.**_ എന�ൽ _**1961**_ ന( പ#ഷ� ട� കതകപ�ട പകസകൾ പതക�യ�ട�ള)ന� ന�ലവ�ൽ കതകപ�ട ഭ�� അള)ന� ത�രവത��കർ പEവസF� പബ�ർഡ( ഭസ�രകണ വ�ഭ�ഗ� സള�ഷJൽ തഹസ�ൽE�ർ വ�ച�രണ പവളയ�ൽ അറ�യ�ച _**.”**_ 5. The respondents 5 & 6 (Travancore Devaswom Authorities) had filed a counter affidavit dated 31.01.2019, wherein the following averments in paragraph 7 thereof, which reads as follows: _“7. Challenging Exhibit P1 order, the petitioner filed Exhibit P2 appeal before the Appellate Authority. The Appellate Authority considered the appeal in detail. Sufficient opportunity was given to the petitioner to substantiate his case. The only contention raised by the petitioner is that, he is in occupation of the property for the last several years. But, he admitted that, the Kuthakappattom lease was not renewed after 1961. Therefore, it was conceded that, he is in possession of the property not based on Kuthakappattaom lease. Therefore, Exhibit P3 order was passed by the Appellate Authority confirming Exhibit P1 order.”_ **WP(C).No. 1999 of 2019** **6** 6. Thus from a reading of the impugned orders, more particularly, Ext.P-3 as well as the counter affidavit of R-5 & R-6, more particularly paragraph 7 thereof, it can be seen that the respondents have virtually admitted that the petitioner’s predecessor was given possession of the said property on the basis of the lease granted under the Kuthakapattom Lease Rules. Further the respondents would contend that since the time period of the said Kuthakapattom lease has expired and the same was not renewed as per the Rules, the lease has totally come to an end and therefore, the occupation and possession of the said property by the petitioner is per se illegal and unauthorized and that therefore, the respondents can competently invoke the proceedings under the Kerala Land Conservancy Act. Sri.K.S.Hariharaputhran, learned counsel appearing for the petitioner would strongly place reliance on the judgment of the Division Bench of this Court rendered _in_ _**T.K Shahul Hassan Musaliyar v. State of Kerala & others**_ [2015(4) KHC 615(DB)] to contend that where the lessee or his successor is continuing the possession of the property, pursuant to the lease granted on the basis of Kuthakapattom Lease Rules, the possession and occupation by the party concerned in respect of the **WP(C).No. 1999 of 2019** **7** subject property cannot said to be unlawful and unauthorized and that therefore, the proceedings under the Kerala Land Conservancy Act are not competent. The petitioner has also placed reliance on the judgment of this Court in _**Harrisons Malayalam Ltd., Cochin v. State of Kerala & others**_ [2014(4)KLT 371] = 2014(4)KHC 245], wherein this Court has held that if the persons is in lawful possession of land, then without termination and determination of legal possession, the proceedings under the Land Conservancy Act cannot be initiated and that the termination/determination of the legal possession cannot be done by invoking the provisions of the Land Conservancy Act only provides for the summary procedure for evicting illegal or unauthorized possession. It has been held by this Court in **Harrisons Malayalam Ltd.’s** case (supra) that occupation denotes actual use and possession denotes control and interest in the land and if a person is in legal possession of a land, then without determining the legal possession, proceedings under the Land Conservancy Act cannot be initiated. The authorized officer under Sec.15 of the Land Conservancy Act has to address and determine the primary factual issue, as to whether the government **WP(C).No. 1999 of 2019** **8** is in legal possession of the property and that one has to bear in mind the distinction between occupation and possession while deciding the preliminary issue raised in that regard. 7. Per contra, Sri.P.V.Kunhikrishnan, learned Standing Counsel appearing for the Travancore Devaswom Board appearing for respondents 5 & 6 would urge that on the basis of the pleadings of his parties in paragraph 5 of the counter affidavit that the Mankombu Devaswom is included in the Devaswom proclamation issued on 30[th] Meenam, 1097 M.E and that the name of the Devaswom is mentioned as pattadhar and that as per the mandate of Sec.27 of the Travancore Cochin Hindu Religious Institutions Act, 1950, the immovable properties entered or classified in the revenue records as Devaswom vaka or Devaswom puramboke and such other pandaramvaka lands as are in possession or enjoyment of Devaswom mentioned in Schedule 1 after 13[th] Meenam, 1097 (corresponding to 12[th] April, 1922AD), are dealt with as Devaswom properties, etc. 8. Sri.K.S.Hariharaputhran, learned counsel appearing for the petitioner would point out that the abovesaid contention of respondents 5 & 6 are untenable, for the simple reason that for the **WP(C).No. 1999 of 2019** **9** invocation of Sec.27 of the abovesaid Act, the subject property should have been in possession or enjoyment of the Devaswom mentioned in Schedule 1, after 30[th] Meenam, 1097 M.E (12[th ] April, 1922AD) and that in a case where the property has been granted on lease, as per Kuthakapattom Lease Rules by the erstwhile Princely State of Travancore, then it cannot be contended even for a minute that the possession and enjoyment of the subject property is with the Devaswom and not with Kuthakapattom Lease Holder and since indisputably the possession and enjoyment of the subject property covered by such a kuthakapattom lease is with the kuthakapattom lease holder, Sec.27 of the abovesaid Act has no application whatsoever to the facts and circumstances of the present case. This Court is not proposing to resolve the abovesaid rival contentions addressed from both sides. From a reading of the impugned order, it can be seen that the abovesaid crucial contention raised by the petitioner has not been properly addressed and dealt with by the respondents concerned in the impugned orders and hence, the matter requires a remit. To facilitate such a remit, the impugned proceedings as per Exts.P-1, P-3 & P-5 will stand set aside and the matter will stand remitted to **WP(C).No. 1999 of 2019** **10** the 5[th] respondent-Tahsildar (Land Conservancy), Travancore Devaswom Board, for consideration afresh. The petitioner may submit his written submissions in the matter, without any further delay, along with the certified copy of this judgment before the 6[th] respondent and may raise any other contentions, which are otherwise available to him in law. The 6[th] respondent-Travancore Devaswom Board may also submit the written submissions in the matter and may also raise their contentions in the matter. The 5[th] respondent-Tahsildar will thereafter, will afford a reasonable opportunity of being heard to the petitioner as well as the 6[th] respondent-Travancore Devaswom Board through their authorized representative/counsel, if any, and then will advert to the contentions raised by the petitioner, more particularly the one raised on the basis of the dictum laid down by the Division Bench of this Court in _**T.K Shahul Hassan Musaliyar’s**_ case (supra) reported in [2015(4) KHC 615(DB)], etc., and then will pass orders in the matter, in accordance with law, without much delay, preferably within a period of three months from the date of production of a certified copy of this judgment. **WP(C).No. 1999 of 2019** **11** With these observations and directions, this Writ Petition (Civil) will stand disposed of. Sd/- **ALEXANDER THOMAS JUDGE** vgd/18.02.19 **WP(C).No. 1999 of 2019** **12** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE ORDER DATED**| |---|---| ||**29.01.2018,ISSUED**<br>**BY**<br>**THE**<br>**5TH**| ||**RESPONDENT**| |**EXHIBIT P2**|**TRUE COPY OF APPEAL MEMORANDUM DATED**| ||**21.02.2018 SUBMITTED BY THE PETITIONER**| ||**BEFORE 4TH RESPONDENT**| |**EXHIBIT P3**|**TRUE COPY OF THE ORDER NO.K.DIS**| ||**1109/2018/M DTD 27.06.2018 ISSUED BY**| ||**THE 4TH RESPONDENT**| |**EXHIBIT P4**|**TRUE COPY OF THE REVISION PETITION**| ||**DATED 23.07.2018 SUBMITTED BY THE**| ||**PETITIONER BEFORE THE 2ND RESPONDENT**| |**EXHIBIT P5**|**TRUE COPY OF THE ORDER NO.C12.19686/18**| ||**DTD 06.12.2018 ISSUED BY THE 3RD**| ||**RESPONDENT**|