IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 WP(C).No. 15599 of 2011(Y) ------------------------------------ PETITIONERS : ---------------------- 1. JOHNSON, S/O. JOSEPH, PATTIKAKKARAN HOUSE, PULAYAMPARA, NELLIYAMPATHY, PALAKKAD - 678 511. 2. THOMAS, S/O. JOSEPH, PATTIKAKKARAN HOUSE, PULAYAMPARA, NELLIYAMPATHY, PALAKKAD - 678 511. 3. BABY, S/O. JOSEPH, PATTIKAKKARAN HOUSE, PULAYAMPARA, NELLIYAMPATHY, PALAKKAD - 678 511. 4. YOHANNAN, S/O. JOSEPH, PATTIKAKKARAN HOUSE, PULAYAMPARA, NELLIYAMPATHY, PALAKKAD - 678 511. 5. RUBY D/O. JOSEPH, PATTIKAKKARAN HOUSE, PULAYAMPARA, NELLIYAMPATHY, PALAKKAD - 678 511. 6. LISSY, D/O. JOSEPH, PATTIKAKKARAN HOUSE, PULAYAMPARA, NELLIYAMPATHY, PALAKKAD - 678 511. BY ADVS. SRI.JOBY JOSEPH (THRISSUR) SRI.M.R.DHANIL RESPONDENTS : ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -1. 2. THE DISTRICT COLLECTOR, PALAKKAD. RKM ......2.... -2- WP(C).No. 15599 of 2011(Y) 3. THE TAHSILDAR, CHITTUR TALUK, PALAKKAD DISTRICT. 4. THE VILLAGE OFFICER, NELLIAYMPATHY, PALAKKAD DISTRICT - 678 511. 5. THE DIVISIONAL FOREST OFFICER, NEMMARA, PALAKKAD DISTRICT. R1 TO R5 BY SRI.JAMES KURIAN, SPL.GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RKM ......3........ -3- WP(C).No. 15599 of 2011(Y) APPENDIX P1 : PHOTOGRAPHS SHOWING THE LIE AND NATURE OF THE PROPERTY. P2 : A COPY OF THE PATTA DATED 22.08.1986 ISSUED BY THE TAHSILDAR, CHITTUR TO SMT. ROSY JOSEPH. P3 : A COPY OF THE RELEVANT PAGES OF THE RATION CARD BEARING NO.186617. P4 : A COPY OF THE CERTIFICATE ISSUED BY THE OUR LADY OF MOUNT CARMEL CHURCH. P5 : A COPY OF THE RECEIPT DATED 28.02.2001 ISSUED BY THE NELLIYAMPATHY VILLAGE PANCHAYATH FOR REMITTING BUILDING TAX P5 (a) : A COPY OF THE RECEIPT DATED 29.02.2008 ISSUED BY THE NELLIYAMPATHY VILLAGE PANCHAYATH FOR REMITTING BUILDING TAX. P6 : A COPY OF THE RECEIPT DATED 21.04.2006 SHOWING REMITTANCE OF LICENSE FEE P7 : A COPY OF THE POSSESSION CERTIFICATE DATED 25.02.2011. P8 : A COPY OF THE BASIC TAX RECEIPT DATED 17.06.2010. P9 : A COPY OF THE SALE DEED DATED 18.02.2011. P10 : A COPY OF THE APPLICATION TO EFFECT MUTATION SUBMITTED BY THE PETITIONER IN FORM - I. P11 : A COPY OF THE APPLICATION DATED 19.05.2011 SUBMITTED BY THE FIRST PETITIONER TO THE 5TH RESPONDENT. P12 : A COPY OF THE LETTER ISSUED BY THE DIVISIONAL FOREST OFFICER, NENMARA TO THE TAHSILDAR, CHITTOOR DATED 22.08.2008. P13 : A COPY OF THE COMMUNICATION SENT BY THE TAHSILDAR TO THE DISTRICT COLLECTOR, PALAKKAD DATED 17.02.2009. P14 : A COPY OF THE MAHAZAR DATED 11.11.2008. P15 : A COPY OF THE REPRESENTATION DATED 28.06.2011 SUBMITTED BY THE PETITIONERS TO THE SECRETARY TO KERALA STATE FOREST DEPARTMENT. P16 : A COPY OF THE RECEIPT DATED 28.06.2011 ISSUED FROM THE OFFICE OF THE CONSERVATOR OF FOREST, EASTERN CIRCLE, PALAKKAD RKM .....4..... -4- WP(C).No. 15599 of 2011(Y) RESPONDENT'S EXHIBITS : R5(a) : A COPY OF COCHIN GOVERNMENT NOTIFICATION IN GAZETTE NO.XLIII DATED 08.05.1909. R(B) : COPY OF SURVEY SKETCH PREPARED BY THE SURVEY TEAM DATED 08.06.2011. /TRUE COPY/ PA TO JUDGE RKM ANTONY DOMINIC, J ....................................................... W.P.(C).15599/2011 .............................................. Dated this the 9th day of December, 2011 JUDGMENT Petitioners contend that their parents settled at Pulayampara in Nelliyampathy Village in the 1950s. According to them, they were in occupation of 16 cents of un-surveyed land and that while so, they were issued Ext.P2 patta for 2.5 cents. They submit that they claimed assignment of the balance 13.5 cents invoking the provisions of the Kerala Land Assignment (Regularization of Occupants of Various Lands Prior to 1.1.1977), Special Rules 1993, and that a joined verification was conducted by the Revenue and Forest Departments. According to the petitioner, Exts.P12 and P13 are the reports and that these reports are pending consideration of the Government. It is stated that while so, on 8.6.2011, respondents started construction of jandas to separate the aforesaid 13.5 cents. It is at that stage, this writ petition was filed with the prayer as follows. (i). Issue a writ by way of mandamus or other appropriate writ, order or direction to the 5th respondent to remove the jandas erected in the property by the petitioners having an extent of 16 cents lying in Pulayampara, Nelliyampathy W.P.(C).15599/11 2 Village. (ii). Issue a writ of prohibition or other appropriate writ, order or direction to the 5th respondent against evicting the petitioners from 16 cents of property lying in Pulayampara, Nelliyampathy Village. (iii). Declare that the 5th respondent has no authority to evict the petitioners or stop the operation of farm tourism in building bearing No.NP III/397 of Nelliyampathy Village Panchayath. (iv). Direct the 3rd respondent to complete the mutation proceedings on the basis of Ext.P10 application and accept basic tax from the first petitioner for the property covered in Ext.P2 and P9 documents. 2. The stand of the respondents is that in 1986, by Ext.P2 patta issued under the provisions of the Kerala Land Assignment Act and the Rules, 2.5 cents of land was assigned to the petitioners' mother. It is stated that according to the respondents, remaining area in the possession of the petitioners is a portion of the various lands which is leased out for plantation purposes into which the petitioners encroached themselves and in pursuance to the provisions contained under the Rules referred to above, joined verification was conducted, a list of 377 occupants was prepared and that the list does not contain the names of the petitioners. In other words, what they contend is that the petitioners are not W.P.(C).15599/11 3 from 377 occupants and that they are subsequent encroachers. 3. Yet another contention raised is that if the petitioners were in possession of the land in question, as claimed by them, petitioners would have complained of non assignment of the entire land to them when Ext.P2 patta was issued in 1986. It is stated that not only that the petitioners did not complain but they accepted Ext.P2 which shows that the land is a subsequent encroachment. 4. On the other hand, learned counsel for the petitioners contended that they have applied for assignment and Exts.P12 to P15 show that the proceedings in pursuance to the application for assignment is pending. It is stated that the until a decision on their applications for assignment is pending, respondents are not entitled to disturb possession of the petitioners. 5. Heard the learned counsel on both sides. 6. In my view, the controversy raised in this writ petition is not W.P.(C).15599/11 4 an issue that can be raised in a writ petition. As already seen while the petitioners contend that they are in occupation of the land from 1950s, respondents rely on the list prepared by them following the introduction of the Rules noticed supra and according to them, in the list prepared the names of the petitioners did not figure. On this basis, they contend that the petitioners are not the 377 occupants as claimed by them. They also contend that if the land in question were in occupation of the petitioners in 1986 and Ext.P2 was issued, petitioners would have complained of non assignment of the entire extent of land. Here again the contention raised is that the petitioners have encroached in the land subsequent to 1986. 7. It is also the contention of the respondents that if it is a claim of the petitioners that they have applied for assignment under the Rules, they have not proved for having made a proper application in compliance of the procedure laid down in this sense which require that an application should be made to the Tahsildar. This contention is also sought to be contradicted by referring to Exts.P12 to P15. This is yet another disputed question of fact. For W.P.(C).15599/11 5 the aforesaid reasons, since the disputed question of fact are involved in the writ petition, the remedy of the petitioners is to move the Civil Court for appropriate reliefs. 8. However, fact remains that the land in question has been in the occupation of the petitioners for quite some time; therefore, since I have found that the remedy available to the petitioners is before the Civil Court, I feel it is only appropriate that the possession of the petitioners should be kept undisturbed at least, for a short while so that, they can move the Civil Court and seek appropriate interlocutory orders safeguarding their interests. With that end in view, I direct that status quo ordered by this Court on 10.6.2011 which was extended subsequently, remain in force for a further period of three months from today. 9. Yet another grievance in the writ petition is regarding the refusal to mutate 2.5 cents covered by Ext.P2 patta. Ext.P10 is the application made by the petitioners in this regard. Learned Government Pleader on instructions, submits that the Forest Department have no objection for mutation of the property W.P.(C).15599/11 6 covered by Ext.P2. Taking note of this submission, I direct the fourth respondent to pass orders on Ext.P10, within four weeks of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs /true copy/ P.A. To Judge