Sreekumar v. Travancore Devaswom Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940 WP(C).No. 42503 of 2018** ## **PETITIONER/S:** **SREEKUMAR.V, AGED 31 YEARS S/O VASUDEVAKURUP,VASUDEVAM HOUSE,AMAYIDAMURI,AMBALAPUZHA.P.O, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA** ## **RESPONDENT/S:** |**1**|**THE TRAVANCORE DEVASWAM BOARD**| |---|---| ||**REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,**| ||**NANTHANCODE,KAWDIARE POST,THIRUVANANTHAPURAM-**| ||**695003.**| |**2**|**THE SPECIAL TAHSILDAR AND EXECUTIVE MAGISTRATE,**| ||**TRAVANCORE DEVASWAM BOARD LAND CONSERVANCY**| ||**SECTION,THIRUVANANTHAPURAM-695003.**| |**3**|**THE ASSISTANT DEVASWAM COMMISSIONER,**| ||**OFFICE OF THE ASSISTANT DEVASWAM**| ||**COMMISSIONER,TRAVANCORE DEVASWAM**| ||**BOARD,AMBALAPPUZHA,ALAPPUZHA DISTRICT-695003.**| ||**BY ADV. SRI.P.V.KUNHIKRISHNAN, SC, TDB**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 42503 of 2018 ================== Dated this the 20[th] day of February, 2019 **J U D G M E N T** The petitioner is aggrieved by the impugned decision as per Ext.P-11 dated 11.11.2013 issued under the provisions of the Kerala Land Conservancy Act, 1957, by the 2[nd] respondent Tahsildar and consequential Ext.P-12 order dated 3.12.2018 issued by the 3[rd] respondent Assistant Devaswom Commissioner, whereby the petitioner has been ordered to be evicted from the subject property on the ground that it is Devaswom property. 2. The prayers in the above Writ Petition (Civil) are as follows: - _“i. Issue a writ of certiorari or any other appropriate writ, order or directing quashing Exhibit P-11 and 12._ - _ii. Issue such other writ, order or direction which this Honourable Court deems fit in the nature and circumstances of the case.”_ 3. Heard Sri.S.Sanal Kumar, learned counsel appearing for the petitioner and Sri.P.V.Kunhikrishnan, learned Standing Counsel appearing for the respondents. 4. According to the petitioner, he had purchased 6.19 ares of property comprised in Sy.No.324/3/2 (old Sy.No. 521/4A) of Karumadi Village, Ambalappuzha Taluk, Alappuzha Revenue District, W.P.(C).42503/18 - : 3 :- on the basis of Ext.P-1 registered sale deed No.2403 of 2005 dated 15.11.2005. The immediate previous title deed prior to Ext.P-1 is Ext.P-2 registered deed deed 2.2.2000 and deed prior to Ext.P-2 is Ext.P-3 registered deed No.1215/1980 dated 11.4.1980. It is stated that by the derivation of title would show that one P.Raghava Panicker was the cultivating tenant in respect of the property and on his application No.960/1975, the Land Tribunal, Alappuzha, had issued Ext.P-4 purchase certificate No.1056/77 in favour of the said cultivating tenant. It is on the basis of Ext.P-4 purchase certificate that the said person had obtained his right over the subject property, which had later changed hands as aforestated. After purchase of the property as per Ext.P-1 deed, he had mutated it in his name and basic land tax was also paid by him in respect of the property as evident from receipt dated 12.2.2006. Ext.P-8 is the encumbrance certificate in respect of the property covered by Ext.P-1. It is thus stated that the petitioner is the registered land holder in respect of the abovesaid property covered by Ext.P-1, as evident from Exts.P5, P-6 and P-7 etc. Later the Revenue Divisional Officer concerned by Ext.P-9 proceedings dated 11.10.2006 had granted permission to the petitioner under Rule 6 of the Kerala Land Reforms Act, 1967, to W.P.(C).42503/18 - : 4 :- reclaim 5 cents of said property to enable the petitioner to construct a residential house. The petitioner has constructed a residential house in the said property pursuant to Ext.P-9 and has paid building property tax to the local authority concerned and Ext.P-10 is the residential/ ownership certificate issued by the said local authority. 5. It is thereafter that the petitioner had to face the eviction proceedings under the Kerala Land Conservancy Act, 1957, which led to Ext.P-11 order dated 11.11.2013 ordering his eviction on the ground that the petitioner had encroached upon 35 cents of land belonging to the respondent Travancore Devaswom Board, which became vested with the said Devaswom Board as it property of the Kavil Sree Badrakali Temple, Kamapuram. That as per the provisions contained in Sec.27 of the Travancore Cochin Hindu Religious Institutions Act, the purchase certificate could not have been issued in respect of the property pertaining to the said Devaswom and that Ext.P-4 purchase certificate has no legal validity, etc. and accordingly the petitioner has been ordered to be evicted from the property as per Ext.P-11. Ext.P-12 is the consequential proceedings that has been issued by the 3[rd] respondent directing that the petitioner should vacate the property within the time stipulated therein, etc. W.P.(C).42503/18 - : 5 :- 6. From a reading of Ext.P-11 it can be seen that the main ground taken by the 2[nd] respondent is that the property became vested with the Devaswom and that therefore by virtue of the provisions contained in Sec.27 of the Travancore-Cochin Hindu Religious Institutions Act, 1957, the purchase certificate in the nature of Ext.P-4 could not have been issued at all and that therefore the petitioner cannot make any valid claim for that property and that the occupation of the said land by the petitioner is per se illegal and unauthorised and that he is liable to be evicted, etc. 7. Whereas the petitioner would vehemently contend that he has valid title and possession over the property and that predecessorin- interest had obtained the property as per Ext.P-4 purchase certificate dated 25.6.1977 issued by the Land Tribunal, Alappuzha, in favour of the cultivating tenant mentioned therein under Sec.72B(2) of the Land Reforms Act, 1953. Exts.P2 and P-3 are the prior title deeds and the petitioner had later obtained the property on the basis of Ext.P-1 registered sale deed dated 15.11.2005. The property has been duly mutated in his name and basic land tax has been paid by him as per Exts.P5, P-6 and P-7 and therefore it is pointed out that the petitioner is the registered land holder in respect W.P.(C).42503/18 - : 6 :- of said property as defined in Sec. 3(3)(d) of the Kerala Land Tax Act. Ext.P-8 is the encumbrance certificate issued by the Sub Registrar concerned on 16.2.2018, which would show that the petitioner has valid title and possession over the said property. The Revenue Divisional Officer concerned had even granted permission under Rule 6 of the Kerala Land Utilization Order, 1967, to reclaim 5 cents of the said property to construct a residential house and thereafter the petitioner has constructed a residential house in the said property as evident from Ext.P-4 residential-cum-ownership certificate. On this basis the petitioner would contend that the petitioner has evidently title and lawful possession of the subject property and that at any rate, the petitioner's occupation of the said property cannot be said to be unauthorised and that therefore proceedings under the Land Conservancy Act is illegal and without jurisdiction. 8. In that regard the petitioner had placed reliance on the judgment of this Court in _**Harrisons Malayalam Ltd. v. State of Kerala & Ors.**_ reported in 2014(4) KLT 371 = 2014 (4) KHC 245 wherein, this Court has held that there is fine distinction between occupation and possession and that occupation denotes actual use and possession denotes control and interest in the land and that if a W.P.(C).42503/18 - : 7 :- person is in legal possession of a land, then without determining the legal possession, proceedings under the Land Conservancy Act cannot be initiated and the determination of legal possession cannot be done invoking the provisions under the Land Conservancy Act and it only provides summary procedure for evicting illegal or unauthorized occupation and that after categorizing the property as a Government land, the eviction Officer/Tahsildar concerned must address to the fact as to whether the Government/public authority is in legal possession of the property and that the Tahsildar has to bear in mind the fine distinction between occupation and possession while deciding the preliminary issue of maintainability of eviction action under the KLC Act and whether the land in question can be categorized as Government land in terms of Sec.3 of the Land Conservancy Act, secondly the issue as to whether the Government is in legal possession of the land as referred to in Sec. 3 should also be decided and that if the possession is not held to be illegal or unauthorised, then there is no question of initiating proceedings under the summary proceedings under the Act. That in such cases without termination and determination of the possession in the manner known to law, the Governmental authority cannot take W.P.(C).42503/18 - : 8 :- recourse to the summary proceedings under the Land Conservancy Act, etc. Further, that it has been held in subsequent decision in _**Harrisons Malayalam Ltd. v. State of Kerala**_ , reported in 2018 (2) KLT 369(D.B) that where the party raises a bonafide claim, then no proceedings under the Land Conservancy Act could be initiated against the subject property in question. In _**Government of Andhra Pradesh v. Thummala Krishna Rao**_ [(1982)2 SCC 134], _**State of Rajasthan v. Padmavathi Devi**_ [1995 Supp.(2) SCC 290], _**Rame Gowda (D) v. M.Varadappa Naidu**_ (D) [AIR 2004 SC 4609], _**Tukaram Kana Joshi v. MIDC**_ [AIR 2013 SC 565] and _**M.Sankaranarayanan v. Commissioner, Bangalore**_ [(2017)13 SCC 661], it has been held that where occupation is unquestioned and the party is in continuous possession of the property, the action cannot be taken under the Land Conservancy proceedings especially in view of fact that there is bona fide clam of title. Further that in the case in _**State of U.P v. Zia Khan**_ [1998(8) SCC 483] it has been held that a suit to establish title to land is not barred and that the civil court has to be approached where there is a dispute as to title. Reliance is also placed on the decision of a Division Bench of this Court in _**Banerjee Memorial**_ W.P.(C).42503/18 - : 9 :- _**Club v. Taluk Tahsildar**_ [2016(1) KLT 241 (DB)] for contending that for initiating proceedings under the Land Conservancy Act, it has to be considered whether the occupant was holding the land unauthorisedly, etc. Further it is also pointed out by the petitioner that the predecessor in interest has secured Ext.P-4 purchase certificate under Sec. 72B of the Land Reforms Act, 1963, then Sec. 72K(2) of the said Act provides that the certificate of purchase issued under Sec. 72K(1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. That once such purchase certificate is so issued the person to whose name it is issued to be considered as person in possession of the property and in the absence any evidence that the aforesaid certificate has been obtained by fraud, the right based on the purchase certificate cannot be simply brushed aside. It has been held by the Apex Court in the decision in _**Ahmmed Kutty v. Mariakutty Umma**_ [ **2000 (1) KLT 829 (SC)= (2000) 2 SCC 417]** that where an enactment like Sec.72K of the Kerala Land Reforms Act mandates that any evidence would be treated as conclusive proof of certain factual position or legal hypothesis, then W.P.(C).42503/18 - : 10 :- the law would forbid other evidence to be adduced for the purpose of contradicting or varying the aforesaid conclusiveness. This is the principle embodied in S. 4 of the Evidence Act, when it has defined "conclusive proof." and that the interdict that the court shall not allow evidence to be adduced for the purpose of disproving the conclusiveness, will not prevent a party who alleges fraud or collusion from establishing that the document is vitiated by such factors and except regarding the said limited sphere the conclusiveness of the purchase certificate issued under Sec.72B in view of the mandate of Sec.72K(2) would remain beyond the reach of controvertibility. 9. After hearing both sides, this Court is of the considered view that the abovesaid crucial aspects contended by the petitioner has not even been adverted to and considered by the 2[nd] respondent while rendering the impugned Ext.P-11 eviction proceedings. Hence the matter requires serious reconsideration at the hands of the 2[nd] respondent and in order to effectuate an independent and proper consideration, it is ordered that Ext.P-11 proceedings and consequential Ext.P-12 order stand set aside and the matter will stand remitted to the 2[nd] respondent Special Tahsildar for consideration afresh. The petitioner may file written submissions in the matter W.P.(C).42503/18 - : 11 :- urging the abovesaid contentions or any other contentions that are available to him in law and such submission may be forwarded by the petitioner along with certified copy of this judgment within two weeks from the date notified for receiving a certified copy of this judgment. Thereafter, the 2[nd] respondent will afford a reasonable opportunity of being heard to the petitioner through authorised representative/ counsel if any and then would advert to the abovesaid contentions and decide on the preliminary issue of maintainability of the eviction action under the Conservancy proceedings and all other contentions of the petitioner should thus clearly decide whether the 2[nd] respondent has competence to proceed in the matter through summary procedure as per the Land Conservancy Act, etc. Needless to say, all other contentions of the petitioner and should also be decided afresh by the 2[nd] respondent. Proceedings in this regard should be duly completed by the 2[nd] respondent without much delay, preferably within a period of 3 months from the date of production of a certified copy of this judgment. 10. It is also pointed out that in view of the abovesaid directions, the predecessor in interest of the petitioner has been having long continuous and unopposed possession and occupation of the petitioner for the least so many years and that therefore it cannot W.P.(C).42503/18 - : 12 :- be contended that the possession of the petitioner is illegal or unauthorized and at any rate, the occupation of the petitioner cannot be said to be unauthorized or illegal. The said contentions should also be duly adhered to by the respondent official concerned. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** W.P.(C).42503/18 - : 13 :- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE SALEE DEED NO.2403 OF 2005 DATED 15.11.2005.** - **EXHIBIT P2 TRUE COPY OF THE TITLE DEED DATED 02.02.2000.** - **EXHIBIT P3 TRUE COPY OF THE TITLE DEED NO.1215/1980 DATED 11.04.1980.** - **EXHIBIT P4 TRUE COPY OF THE COPY OF PHOTOCOPY OOF THE PURCHASE CERTIFICATE NO.1056/1977 ISSUED BY THE LAND TRIBUNAL,ALAPPUZHA.** - **EXHIBIT P5 TRUE COPY OF THE THANDAPER REGISTER NO.4724 DATED 13.12.2018.** - **EXHIBIT P6 TRUE COPY OF THE TAX RECEIPT DATED 12.01.2006. EXHIBIT P7 TRUE COPY OF THE TAX RECEIPT DATED 31.07.2018.** - **EXHIBIT P8 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 16.02.2018.** - **EXHIBIT P9 TRUE COPY OF THE ORDER NO.H.2108/06 DATRED 11.10.2006 OF THE R.D.O,ALAPPUZHA.** - **EXHIBIT P10 TRUE COPY OF THE RESIDENTIAL/OWNERSHIP CERTIFICATE DATED 04.11.2010.** - **EXHIBIT P11 TRUE COPY OF THE NOTICE NO.A3 485/10 ISSUED BY THE 2ND RESPONDENT DATED 11.11.2013.** - **EXHIBIT P12 TRUE COPY OF THE ORDER NO.3042/03/12/18 OF THE 3RD RESPONDENT.**