Sreemandara Varma Jain & Others v. The District Collector, Wayand; The Tahsildar, Kalpetta; The Village Officer, Muttil North Village; The Village Officer, Kottathara Village; State of Kerala; Special Officer and Collector appointed by the Government in terms of GO MS 161/2013

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY,THE 14TH DAY OF AUGUST 2018 / 23RD SRAVANA, 1940** ## **WP(C).No. 2952 of 2017** ## **PETITIONERS:** - **1 SREEMANDARA VARMA JAIN, S/O LATE M.P SANTI VARMA JAIN, AGED 49 YEARS, KALYANA MANDIRAM, MUTTIL NORTH VILLAGE, P.O.KALPETTA NORTH,WAYANAD DIST.** - **2 SIDDHARTHA DEVI, D/O LATE M.P SANTI VARMA JAIN, AGED 33 YEARS, KALYANA MANDIRAM, MUTTIL NORTH VILLAGE, P.O.KALPETTA NORTH,WAYANAD DIST.** - **3 SUSHENA DEVI, D/O LATE M.P SANTI VARMA JAIN, AGED 44 YEARS, KALYANA MANDIRAM, MUTTIL NORTH VILLAGE,P.O.KALPETTA NORTH,WAYANAD DIST.** - **4 PUSHPALATHA S JAIN W/O LATE M.P SANTI VARMA JAIN, AGED 67 YEARS, KALYANA MANDIRAM, MUTTIL NORTH VILLAGE,P.O.KALPETTA NORTH,WAYANAD DIST.** - **BY ADV. SRI. JACOB SEBASTIAN** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR, WAYANAD,PIN- 673 121 2 THE TAHSILDAR,KALPETTA, WAYANAD DIST- 673 121 3 THE VILLAGE OFFICER, MUTTIL NORTH VILLAGE, WAYANAD DIST- 673 121** - **4 THE VILLAGE OFFICER KOTTATHARA VILLAGE, WAYANAD DIST- 673 581** - **5 STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVT. SECRETARIAT,DEPT. OF REVENUE, GOVT. SECRETARIAT,THIRUVANANTHAPURAM- 695 001** - **6 THE SPECIAL OFFICER AND COLLECTOR APPOINTED BY THE GOVT. OF KERALA IN TERMS OF GO(MS)r161/2013/RD, STATE SPECIAL OFFICE, GOVT. LAND RESUMPTION, PUBLIC OFFICE BUILDINGS, MUSEUM JUNCTION,rTHIRUVANANTHAPURAM- 695 033** **BY SPECIAL GOVERNMENT PLEADER SRI. MOHAMMED ANZAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) 2952/17 2 ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 2952 of 2017 ----------------------------------------------Dated this the 14[th] day of August, 2018** ## **JUDGMENT** The petitioners have approached this Court seeking the following reliefs: - _“i. issue a writ in the nature of mandamus commanding respondents 1 to 4 to collect basic tax and issue a possession certificate to the petitioners in respect of their property covered by Exhibits P1 and P2._ - _ii. quash Exhibit P7 issuing a writ in the nature of certiorari.”_ 2. Heard learned counsel for the petitioners and the learned Special Government Pleader. 3. The petitioners have title and possession of 184.01 acres of land in Kottappadi, Muttil North and Kottathara Village of Wayanad District by Exhibit P1 registered partition deed. It is stated that the property was planted with coffee and was exempted from the provisions of the Kerala Land Reforms Act, 1963 and the Kerala Private Forests (Vesting and Assignment) Act, 1971. It is stated that proceedings were initiated by the Taluk Land Board and 169.77 acres of land out of the above property was exempted, since it was coffee plantation. It is WP(C) 2952/17 3 stated that Exhibits P3 and P4 partition deeds were also entered into and basic tax was received in respect of the property held by the petitioners till 2014. It is stated that when basic tax was thereafter not received from the petitioners, they had approached this Court filing W.P(C).No.28549 of 2015, where a contention was raised by the respondents that there was no dispute with regard to the property in Muttil North Village. But as regards the property in Kottathara, it is contended that the earlier possession in the East India Tea Company and that the petitioner should approach the 6[th] respondent and prove that they have valid title over the property. It is stated that the 6[th] respondent, who was a Special Officer appointed by the Government under Exhibit P9 Government order, considered the issue and took steps to resume the land belonging to the petitioners. 4. Learned counsel for the petitioners would rely on the decision of the Division Bench of this Court in _**Harrisons Malayalam Ltd. And Others v. State of Kerala**_ [2018(2) KLT 369] to contend that the Special Officer appointed in terms of Exhibit P9 Government order would have no power to consider a _bona fide_ title dispute raised by the parties. It is also contended that the petitioners are not assignees of the Malayalam Plantations Limited or its predecessors or successors-in-interest WP(C) 2952/17 4 and that the petitioners have raised a specific contention as to their derivation of title before the 6[th] respondent. It is stated that the lands have continued in the possession of the petitioners' family for years on end and that in the absence of any valid proceedings initiated under any law, the basic tax in respect of the property for which the petitioners have title and possession is liable to be received. 5. The learned Government Pleader would submit that the petitioners' claim as to title is to be adjudicated by the Special Officer in terms of the orders passed in the matter. It is stated that the decision in _**Balanoor Planations & Industries Ltd. v. State of Kerala and Others**_ [2018(3) KLT 283] would have no application in the instant case and that the petitioners have not been able to establish title over the property. 6. I have considered the contentions advanced. Exhibit P7 is the proceedings of the Special Officer appointed in terms of Government order dated 31.12.2015 in respect of the petitioners' property. It is stated in Exhibit P7 that the petitioners have produced title deed from 1958 in respect of the properties in Kottathara East Village. It is stated that as per the basic tax register, the name of the occupier of the land in Sy.Nos.956 and 954 is M/s.East India Tea & Producers Company and the period of lease is till 1979. It is stated that document WP(C) 2952/17 5 Nos.1919 and 1966 were also produced by the petitioners to show that the land was given to the predecessor-in-interest of the petitioners by one Hanuman dass Pardessi. It is further stated as follows: - _“1. As per document No.507/1876 and 675/1880 a total land of 334.62 acres including the land in dispute of 105 acres comprised in Sy. 954 and Sy 956 was given on lease by one Hanuman dass Pardessi in favour of Tamarasseri Coffee Company._ _2. As per deed No.512/1919, the same land was transferred to Subba Kavundan (Grand Father of late M.P.Santhi Varma Jain) by Hanuman dass Pardesi retaining the above lease agreement._ _3. As per deed of Surrender No.187/1966 by M/s.Malayalam Plantations Ltd. the tenancy right of the above 105 acres was surrendered to M.P.Santhi Varma Jain. The remaining extent was transferred to one Jinachandran._ _4. As on 1.4.1964, as per KLR Act the tenant was one of the English Companies either East Indian Tea & Produce Company (as per the basic tax register) or M/s.Malayalam Plantations Ltd._ _5. As per section 72(1), the lease lands are vested in Government as on 1.4.1964._ _6. As per the reference order dated 25.11.2015, foreigners & foreign companies do not come under the purview of the KLR Act._ _7. In 1966, Malayalam Plantations (UK) Ltd had no authority to surrender the land, since as per KLR Act, as on 1.4.1964 all lease lands are vested are in_ _8. And, the foreign company did not seem to obtain_ WP(C) 2952/17 6 _permission from RBI or central Government as per FERA 1947 and 1957 to hold or transfer the immovable properties in India._ _9. The documents produced do not show whether the land was plantation at the very first time of transfer. Further the first documents 507/1876 and 675/1880 are also not produced.”_ It is on the said basis that conclusion has been reached that the land does not belong to the petitioners and that no basic tax is liable to be accepted on the same. 7. Having considered the contentions advanced in detail and having perused the documents produced by the parties, I am of the opinion that the issue raised in this writ petition is squarely covered by the decision in _**Balanoor Plantations' case (supra).**_ The petitioners have succeeded in establishing a _bona fide_ claim of title in respect of the property in question. In the above view of the matter, I am of the opinion that the Special Officer appointed in terms of Exhibit P9 Government order cannot be held to have the jurisdiction to adjudicate on the question of title of the petitioners. In case the Government has a claim as to the title over the property, it is for the Government to raise such claim before an appropriate Civil Court in accordance with law. The action now taken to decline acceptance of basic tax in respect of the property to which the petitioners have title and possession without any proceedings WP(C) 2952/17 7 having been initiated either under the Kerala Land Reforms Act or under the Land Conservancy Act, if such proceedings are permissible, is therefore completely unsustainable. In view of the findings in Exhibit P7, I am of the opinion that the petitioners have succeeded in raising a _bona fide_ claim of title to the properties in question. Subject to any contrary claim by the Government which is to be established in appropriate proceedings, I am also of the opinion that the basic tax is to be accepted and possession certificate issued to the petitioners on the basis of the documents now produced by the petitioners. It is ordered accordingly. Appropriate steps shall be taken by the respondents without further delay, at any rate, within a period of two months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. **Sd/ANU SIVARAMAN** **JUDGE** _vgs_ WP(C) 2952/17 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE REGISTERED PARITION DEED NUMBER 2252/1958 OF THE SRO, VYTHIRI** - **EXHIBIT P2 A TRUE COPY OF THE PROCEEDINGS NUMBER TBL(SW)607/73 DATED MARCH 12, 1977 OF THE TALUK LAND BOARD, WAYANAD** - **EXHIBIT P3 A TRUE COPY OF THE REGISTERED PARTITION DEED NUMBER 4125/2011 OF THE SRO KALPETTA** - **EXHIBIT P4 A TRUE COPY OF THE REGISTERED PARTITION DEED NUMBER 2014/2011 OF THE SRO, KALPETTA** - **EXHIBIT P5 A TRUE COPY OF THE BASIC TAX PAID RECEIPTS RELATING THE PROPETY** - **EXHIBIT P6 A RUE COPY OF THE JUDGMENT DATED JANUARY 21, 2016 IN WPC 28549/2015 OF THIS HONOABLE COURT** - **EXHIBIT P7 A TRUE COPY OF THE ORDER DATED DECEMBER 22,. 2016 OF THE 6TH RESPONDENT** - **EXHIBIT P8 A TRUE COPY OF THE EXTRACT OF THE RELEVANT PAGE OF THE BTR** - **EXHIBIT P9 A TRUE COPY OF THE G.O.(MS) NO.161/2013/RD DATED 25-4-2013** (True copy) PS TO JUDGE