IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 WP(C).No. 37235 of 2003(G) -------------------------- PETITIONER: ------------------ ROBERT, S/O.OUSEPUNNI, AGED 53 YEARS, ODATHAKKAL HOUSE, THUNDATHUMKADAVU, VARAPUZHA. BY ADV. SRI.C.A.CHACKO RESPONDENTS: --------------------- 1. THE DISTRICT COLLECTOR, ERNAKULAM. 2. THE TAHSILDAR, TALUK OFFICE, PARAVUR. 3. THE VILLAGE OFFICER, VILLAGE OFFICE, VARAPUZHA. BY GOVERNMENT PLEADER SMT. RANIDIOTHEMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37235 of 2003(G) --------------------------------------- APPENDIX ----------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF THE TAX RECEIPT WITH RESPECT TO 56.750 CENTS OF LAND EXT.P2. COPY APPLICATION DT. 11.2.2003 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P3. COPY OF THE REPORT SUBMITTED BY THE 3RD RESPONDENT. EXT.P4. COPY OF THE REJECTION ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 20.10.2003. RESPONDENT'S EXHIBITS : NIL -------------------------------------- / TRUE COPY / P.A. TO JUDGE VK ANTONY DOMINIC, J. ================ W.P.(C) NO. 37235 OF 2003 ===================== Dated this the 25th day of February, 2011 J U D G M E N T According to the petitioner, in LA No.977/69, as per order dated 7/2/1974, orders were issued for the assignment of 25.750 cents of water logged puramboke land comprised in Sy.No.420/1 of Varapuzha Village in favour of his deceased brother Sri.Varghese. It is stated that, Sri.Varghese expired on 4/1/2003 leaving the petitioner and his sister as the sole legal heirs. According to the petitioner, the original patta was irretrievably lost and he made Ext.P2 application to the 2nd respondent for the issuance of a duplicate copy of the patta. 2. It is stated that thereupon a report was called for from the 3rd respondent and that the 3rd respondent submitted Ext.P3 report confirming the assignment of the land in question and the loss of patta. Report also states that the assignee expired and that since then, the petitioner is in possession of the property where he is continuing prawn farming. It is also stated that despite the assignment, tax has not been remitted or mutation has not been effected. It is further stated in the report that WPC No. 37235/03 :2 : duplicate copy of the patta can be issued to the petitioner. 3. However, in Ext.P4 order issued by the 2nd respondent on 20/10/2003, 2nd respondent has stated that the assignee, the deceased brother of the petitioner did not remit the land value or other dues within the permissible time, as a result of which, the assignment itself stood cancelled. That apart, it is stated that the land is a river puramboke and that this Court has already directed that such lands shall not be assigned. It is also stated that the irrigation department has also decided not to assign river puramboke, and therefore, the request of the petitioner for the issuance of duplicate copy of the patta was rejected. It was on receipt of Ext.P4, the petitioner approached this Court by filing this writ petition with the prayer to quash Ext.P4 and to require the respondents to issue patta in his favour. 4. An affidavit has been filed by the 2nd respondent, where it is averred thus:- 3. It is submitted that the petitioner applied for the copy of patta which is stated to be issued to his brother Varghese as per LA-977/69 relating to 25.750 cents of land comprised in Survey No.420/1 of Varapuzha Village. On verification of the records it was seen that an assignment order for 13 cents of land was issued in favour of Varghese on 7.2.1974 but the patta had not been issued as the occupant WPC No. 37235/03 :3 : failed to remit the prescribed LA amount. Consequently the assignment order in favour of Varghese stands cancelled as per the provisions of Kerala Land Assignment Act. More over the original land occupant, Varghese expired on 4.1.2003 as unmarried. 5. Admittedly, orders were passed in LA No.977/1969 on 7/2/1974 to assign 13 cents of land in favour of the deceased brother of the petitioner. However, the deceased did not remit the amounts due for such assignment, as a result of which, patta was not issued in his favour in terms of the provisions contained under the Kerala Land Assignment Rules. However, fact remains that the land assigned in terms of the Land Assignment Rules is heritable and is also transferable subject to the restrictions as contained in those rules. If that be so, petitioner, being the legal heir of the asignee, cannot be said to be a total stranger. 6. True, there is substance in the case of the respondents that the deceased did not pay the amount due, as a result of which, the order of assignment stood cancelled. But here again, the proviso to Rule 9(7) of the Kerala Land assignment Rules permits even belated payment and the Government has been conferred power to condone any amount of delay and accept payment of the amounts due. Therefore, being a legal heir of the WPC No. 37235/03 :4 : deceased assignee and if the Government condones the delay in payment of the dues, petitioner can certainly put forward a claim for issuance of patta in his favour provided the land is otherwise assignable. 7. As far as the question of assignment is concerned, if the Government condones the delay in the payment of the amount due, the claim of the petitioner will have to be considered with reference to the position as obtained as on 7/2/74 when the order of assignment was issued. If that be so, the judgment rendered by this Court on 13/1/97 in OP NO.16077/96 restraining assignment of river puramboke or the decision of the Irrigation Department will not come in the way of the petitioner. Therefore, at this stage, what the petitioner will have to do is to apply to the Government, to get the delay in payment of the dues by his brother condoned and seek issuance of patta if the Government condones the delay in the matter. In that view of the matter, I dispose of this writ petition directing that, it will be open to the petitioner to move the Government for condonation of delay in paying the dues under Rule 9 of the Kerala Land Assignment Rules. It is clarified that, if WPC No. 37235/03 :5 : the delay is condoned, it will be open to the petitioner to apply to the 2nd respondent for the issuance of the patta in his name, he being the legal heir of the deceased brother provided the petitioner produces no objection from his sister, being the other legal heir of the deceased. ANTONY DOMINIC, JUDGE Rp