IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 WP(C).No. 31255 of 2009(B) ---------------------------------------- PETITIONER(S): ----------------------------- P.V.PRAJEETHA, D/O.SUBRAMANIAM CHETTIAR CHERAMVEETTIL PUTHAN VEETTIL, THEKKUM MURI P.O., TIRUR. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT(S): -------------------------- 1. THE REVENUE DIVISIONAL OFFICER, TIRUR. 2. THE TAHSILDAR, TIRUR. 3. THE VILLAGE OFFICER, TRIKANDIYOOR, TIRUR. BY GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.31255/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE KANAM ASSIGNMENT DEED. NO.766/1955 OF SRO TIRUR. P2:- COPY OF THE PURCHASE CERTIFICATE NO.2573/1977 OF THE LAND TRIBUNAL, TIRUR. P3:- COPY OF THE REGISTERED WILL NO.25/1991 OF SRO TIRUR. P4:- COPY OF THE APPLICATION OF THE PETITIONER. P5:- COPY OF THE REPORT OF THE VILLAGE OFFICER. P6:- COPY OF THE PERFORMA REPORT. P7:- COPY OF THE REPORT OF THE TAHSILDAR. P8:- COPY OF THE LOCATION SKETCH. P9:- COPY OF THE ADANGAL BY THE VILLAGE OFFICER, REGISTER. P10:- COPY OF THE MAHAZAR PREPARED BY THE VILLAGE OFFICER. P11:- COPY OF THE CONSENT LETTER GIVEN BY THE NEIGHBOURING. P12:- COPY OF THE LETTER GIVEN BY THE NEIGHBOURING OWNER. P13:- COPY OF THE AJMASH REGISTER. P14:- COPY OF THE LETTER ISSEUD BY THE IST RESPONDENT. P15:- COPY OF THE PERFORMA OF NOTICE. P16:- COPY OF THE RELEVANT EXTRACT OF THE GAZETTE NOTIFICATION PUBLISHED IN VOL. 52 NO.37 OF THE KERALA GAZETTE DTD. 18.9.2007. P17:- COPY OF THE ORDER OF THE IST RESPONDENT. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.31255/2009-B ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 3rd day of December, 2010 J U D G M E N T The petitioner has filed this writ petition challenging Ext.P17 order passed by the Revenue Divisional Officer whereby the application to register an extent of 11 cents in Re-survey No.123/13, under the Malabar Land Registration Act has been rejected. The reason stated therein is only that it is a natural pond which has to be maintained as such and, therefore, the application cannot be allowed. The legality of the same is, therefore, under attack. 2. The petitioner herein claims to be the absolute owner of 43 cents comprised in Re-survey No.123/13 (11 cents) and 123/14 (32 cents). The said property originally belonged to Vanneri Manakkal Narayanan Namboodiri. By Registered Kanam Assignment Deed No.766/1955 of SRO, Tirur, the property was leased to the grandmother of the petitioner, namely, Smt.Lakshmikutty Ammal as per Ext.P1. The grandmother of the petitioner applied for assignment of jenmom right before the Land Tribunal, Tirur by filing W.P.(C). No.31255/2009 -:2:- O.A.No.8702/1975 and the Land Tribunal after due enquiry issued purchase certificate as per Ext.P2. The grandmother of the petitioner by Registered Will No.20 of 1991 of SRO, Tirur bequeathed the said 43 cents to the share of the petitioner as item No.8 in the said Will. Ext.P3 is the copy of the said Will. It is the case of the petitioner that tax was also being paid by the predecessor-in-interest. 3. It appears that 11 cents in Re-survey No.123/13 is shown as unassessed land (according to the learned Government Pleader, after re-survey). It is in these circumstances, the petitioner filed an application as per Ext.P4 under the Malabar Land Registration Act to convert the unassessed land as patta land in the name of the petitioner, before the first respondent-Revenue Divisional Officer. The application was forwarded to the Tahsildar, Tirur for enquiry, which was forwarded to the Village Officer, Trikkandiyoor. Ext.P5 is the copy of the report of the Village Officer. Ext.P6 is the proforma report produced along with the report pursuant to which the W.P.(C). No.31255/2009 -:3:- Tahsildar also forwarded his report as per Ext.P7. After visiting the site, the Village Officer prepared a location sketch as per Ext.P8. Ext.P9 is the true copy of the Adangal Register. Ext.P10 is the true copy of the Mahazar prepared by the Village Officer and Exts.P11 and P12 are the consent letters of the neighbouring owners and Ext.P13 is the copy of the Ajmash register showing the details of the unassessed land and that the said property is neither puramboke land or excess land or the properties of the PWD, Railway or others etc.. It appears that the first respondent directed the petitioner to issue a public notice in the Official Gazette, inviting objections if any in converting the 11 cents of property as patta land in the name of the petitioner from the list of unassessed land. Accordingly, a notice was published. Ext.P14 is the copy of the notice published in the Official Gazette, notice boards of the Tahsildar etc. and, Ext.P16 is the Gazette notification. 4. The learned counsel for the petitioner submitted that the view taken in Ext.P17 that the W.P.(C). No.31255/2009 -:4:- property is a pond and, therefore, it has to be maintained as such, as a reason for rejecting the application cannot be justified. It is pointed out that all the reports will show that the property is in the possession of the petitioner. It is further submitted that the petitioner has not sought for conversion of the pond for any purpose and, therefore, the Revenue Divisional Officer ought to have passed a final order on the application rather than rejecting the same by taking the stand that it should be retained as a pond. A reading of Ext.P5 report of the Village Officer shows that he had made a local inspection and found that the petitioner is in possession of 43 cents of property. Various documents have also been mentioned in the report. Reference is made to the patta obtained from the Land Tribunal as well as the Will executed by the grandmother in favour of the petitioner. Now, the 11 cents is earmarked in the Sub Division 123/13 in Re-survey as evident from Ext.P5. It is also mentioned in Ext.P5 that for a number of years, tax was being remitted by the predecessors-in- interest and by the petitioner in patta No.212. Other W.P.(C). No.31255/2009 -:5:- details of the property have been described in Ext.P5. It is also mentioned in Ext.P5 that the property is not coming in excess land, forest land or in Devaswom land or in puramboke land or in any property transferred to the local authority. These reports have been considered by the Tahsildar while furnishing Ext.P7 report. 5. Evidently, the application has been treated as one for conversion of the pond which is not correct. Even in the counter affidavit, what is mentioned is that on an inspection, the Revenue Divisional Officer noted that the above land is a pond which provides natural water source and same was exempted from land tax in the earlier years and the land has to be maintained for the sake of environment and water availability and, therefore, the Revenue Divisional Officer rejected the application for registration as patta land. 6. Evidently, the Land Tribunal had granted pattayam for the entire extent of 43 cents. The other documents show that there was a kanam assignment by the W.P.(C). No.31255/2009 -:6:- original property owner which is not under dispute also. Therefore, the application has to be considered on merits on the provisions of the Malabar Land Registration Act. 7. One of the contentions raised by the learned Government Pleader during the arguments is that under Section 10 of the Malabar Land Registration Act, the petitioner has the remedy to approach the District Collector. A reading of Section 10 of the Act shows that every registration purporting to be made in accordance with the procedure prescribed by this Act-- (i) may be revised by the Collector on application made within three months. Evidently, a refusal to register is not provided as a contingency therein for enabling the party to file a revision. Therefore, the said contention need not deter this Court from considering the matter. The pond has to be retained as such, is the concern of the Revenue Divisional Officer. The learned counsel for the petitioner submitted that there is no idea for the petitioner to convert the pond also. The only question therefore is regarding the W.P.(C). No.31255/2009 -:7:- registration of the property under the Malabar Land Registration Act. The matter will therefore be reconsidered by the Revenue Divisional Officer after hearing the petitioner afresh. In that view of the matter Ext.P17 is quashed. There will be a direction to the Revenue Divisional Officer to pass orders afresh after hearing the petitioner in terms of the Malabar Land Registration Act, 1896 within a period of two months from the date of receipt of a copy of this Judgment and after considering all the reports of the concerned Officers, and evidence produced by the petitioner. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms