IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929 OP.No. 10411 of 1998(M) ----------------------- PETITIONER: ------------ SMT.B.KAMALA, BYRAMULA, PADY VILLAGE, POST EDNEER, KASARAGOD TALUK. BY ADV. SRI.K.LAKSHMINARAYANAN SMT.SATHYA SREEPRIYA RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY ITS, CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. BOARD OF REVENUE, REPRESENTED BY ITS SECRETARY, TRIVANDRUM. 3. REVENUE DIVISIONAL OFFICER, KASARAGOD. 4. SPECIAL TAHSILDAR(LA), KASARAGOD. 5. KORAGAPPA MANAYANI, S/O.LATE P.KUNHIRAMA MANIYANI, BYRAMULA, PADY VILLAGE, POST EDNEER, KASARAGOD TALUK. 6. NARAYANA MANAYANI, S/O.LATE P.KUNHIRAMA MANIYANI, BYRAMULE, PADY VILLAGE, POST EDNEER, KASARAGOD TALUK. BY GOVERNMENT PLEADER, SRI.L.G.SURESH BABU SRI.KODOTH SREEDHARAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 13/03/2008, ALONG WITH SA NO.612 OF 1995 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.10411/1998 ORDER ON CMP NO.17852/1998 IN OP NO.10411/1998 DISMISSED SD/- 13.3.08 M.SASIDHARAN NAMBIAR, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE ORDER NO:DR.4375/66-67/PADY DATED 19-9-87 ISSUED BY THE FOURTH RESPONDENT. EXT. P2: COPY OF THE ORDER NO: D.DIS.1638/95(AA 4/92) DATED 9-2-95 ISSUED BY THE THIRD RESPONDENT. EXT. P3: COPY OF THE ORDER NO:D.DIS.6097/95/LR(J)2 DATED 5-6-97 ISSUED BY THE SECOND RESPONDENT. EXT. P4: COPY OF THE ORDER NO:G.O.RT.647/98/RD DATED 9-2-'98 ISSUED BY THE SECRETARY TO GOVERNMENT. /TRUE COPY/ P.S. TO JUDGE JP M.SASIDHARAN NAMBIAR,J. =========================== O.P. NO. 10411 OF 1998 =========================== Dated this the 13th day of March, 2008 JUDGMENT This petition is filed under Article 226 of the Constitution of India to quash Ext.P1 to P4 orders. Case of the petitioner is that Subraya Kunjuraya was assigned 4 acres in R.S.No.347/3 of Paddy Village of Kasaragod Taluk and he effected improvements and has been in possession and enjoyment of the property and while so respondents 5 and 6 tried to trespass into the property and therefore Subraya Kunjuraya filed O.S.107/1980 for permanent prohibitory injunction and that suit was decreed and in the appeal filed by defendants, the decree was modified restricting the decree to 3.07 acres alone and Subraya Kunjuraya conveyed 4 acres in favour of the petitioner as per sale deed dated 27.1.1982. It was contended that respondents 5 and 6 raised a contention that 91 cents out of the 4 acres which belonged to Subraya Kunjuraya, was O.P.10411/1998 2 granted as darkast in favour of Kunhirama Maniyani as per order dated 14.12.1966 and that order was later cancelled by the Tahsildar as per order dated 13.11.1978 and an appeal was filed by Kunjirama Maniyani before Revenue Divisional Officer as A.A.163/1978 which was allowed and the order of the Tahsildar cancelling the order in favour of Kunhiraman Maniyani was set aside and it was remanded for fresh disposal and thereafter Special Tahsildar passed Ext.P1 order regularising the order of darkast in favour of Kunhirama Maniyani. It was contended that petitioner was not aware of Ext.P1 order and she did not get any notice in that proceedings and she came to know about the order only when it was produced before Munsiff Court, Kasaragod in O.S.192/1987 which was a suit filed by the petitioner for recovery of possession of the said 91 cents and immediately petitioner obtained a copy of that order on 4.1.1992 and an appeal was filed before third respondent Revenue Divisional Officer with an application to condone the delay of 4 years in filing the appeal and under Ext.P2 order the appeal was dismissed on the ground of delay O.P.10411/1998 3 without considering the merit in the appeal and though petitioner filed a revision before second respondent Board of Revenue under Ext.P3 order also dismissed and petitioner did not get an opportunity to raise her contentions in the appeal against Ext.P1 order and therefore she approached the Government and under Ext.P4 order, that was also dismissed. The writ petition is filed to quash Ext.P1 to P4 orders. 2. Case of the petitioner is that as Ext.P1 order was passed without hearing the petitioner, it is vitiated for violation of natural justice and as Exts.P2 to P4 orders were passed without granting an opportunity to the petitioner to raise the grievance against Ext.P1 order, all the orders are liable to be cancelled. 3. Learned counsel appearing for petitioner and respondents 5 and 6 and learned Government pleader were heard. 4. The argument of the learned counsel appearing for petitioner is that when a provisional patta was issued in favour of the petitioner without cancelling the same, Government is not O.P.10411/1998 4 competent to assign the same property in favour of Kunhiraman Maniyani the predecessor in interest of respondents 5 and 6 and therefore the assignment in favour of Kunhirama Maniyani is not valid. The argument is that when the order of assignment was cancelled by the Tahsildar and in the appeal the order of cancellation was set aside and the case was remanded to the Tahsildar, Tahsildar should not have passed Ext.P1 order without hearing the petitioner and serving a notice on the petitioner. It was argued that when the order in favour of petitioner was not cancelled, a patta cannot be issued in favour of Kunhiraman Maniyani and these valid contentions, which are available to the petitioner, were not heard by the Revenue Divisional Officer by dismissing the appeal on the ground of delay and therefore Exts.P1 to P4 are to be quashed. 5. Learned counsel appearing for respondents 5 and 6 pointed out that no order of assignment was issued in favour of the petitioner. It was pointed out that petitioner was granted a provisional patta, not under the provisions of Kerala Land O.P.10411/1998 5 Assignment Rules but under Rules for Assignment of Government Lands for Settlement of Agricultural Labourers and though as provided under Rule 13 of that Rules a provisional patta was issued, it was not regularised and a final patta was not issued and therefore no order granting registry in favour of Subraya Kunjuraya as provided under Rule 12 was issued and so there is no necessity to cancel the registry as provided under Rule 21 of the said Rules. It was argued that when a provisional patta was issued as provided under Rule 9 of the Kerala Land Assignment Rules in favour of Kunhiraman Maniyani which was finalised by issuing a final patta in 1971, without hearing Kunjiraman Maniyani the order was cancelled and in the appeal filed before the Revenue Divisional Officer that order was set aside and Tahsildar thereafter passed Ext.P1 order regularising the original patta which was wrongly cancelled and petitioner is not a necessary party in that proceedings and therefore she cannot be heard to contend that no notice was issued to her by the Tahsildar before passing Ext.P1 order and so Ext.P1 order is against O.P.10411/1998 6 natural justice. It was also argued that the appeal filed by the petitioner was rightly dismissed, as it was filed after 4 years from the date of Ext.P1 order and that too when petitioner has no right over the property, as she was not issued a regular patta and she is not entitled to claim any right over the property covered under the patta issued in favour of Kunhirama Maniyani under Rule 9(3) of Kerala Land Assignment Rules and there is no merit in the petition. 6. Though it was contended that 91 cents covered under the patta issued in favour of Kunhiraman Maniyani is part of the property assigned in favour of Subraya Kunjuraya, what was granted by the Tahsildar to Subraya Kunjuraya was only a provisional patta, as provided under Rule 13 of Rules for Assignment of Government Lands for Settlement of Agricultural Labourers. As provided under Rule 13 therein, it is only a provisional order. It was not regularised and no final patta was issued in his favour. The assignor of the petitioner was not issued an order of registry as O.P.10411/1998 7 provided under Rule 12. Therefore even if no order was passed, cancelling the registry as provided under Rule 21, based on the provisional patta which was never finalised, petitioner cannot claim right over 91 cents assigned in favour of Kunhiraman Maniyani. 7. It is clear from the records that a provisional patta was issued in favour of Kunhirama Maniyani in 1966 under the provisions of Kerala Land Assignment Rules. It was finalised and a final patta was issued in 1971. That patta was cancelled subsequently as per order dated 13.11.1978 on the basis that the property forms part of the property covered under the provisional patta issued in favour of Subraya Kunjuraya. In the appeal filed by Kunhiraman Maniyani, that order was cancelled and the case was remanded to the Special Tahsildar. Petitioner was not a party either in the appeal filed by Kunhirama Maniyani before the Revenue Divisional Officer or in the proceeding before the Special Tahsildar either when the original order of cancellation was passed or subsequently when Ext.P1 order was passed. In O.P.10411/1998 8 such circumstance, petitioner cannot be heard to contend that Ext.P1 order is against natural justice. When an appeal is filed after four years from the date of Ext.P1 order, the Revenue Divisional Officer rightly dismissed the same. On the facts, I do not find any illegality in Exts.P1 to P4 orders. Original Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006