IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 WP(C).No. 20913 of 2009(H) --------------------------------------- PETITIONERS: --------------------- 1. SMT.INDIRABHAI, W/O.GOPINATHAN, MANGHAT HOUSE, PARAYAKKAD, PARAVOOR, ERNAKULAM. 2. BINEESH, S/O.GOPINATHAN, MANGHAT HOUSE, PARAYAKKAD, PARAVOOR, ERNAKULAM. 3. BIJESH, S/O.GOPINATHAN, MANGHAT HOUSE, PARAYAKKAD, PARAVOOR, ERNAKULAM. BY ADV. SRI.P.N.MOHANAN. RESPONDENTS: ------------------------ 1. REVENUE DIVISIONAL OFFICER, FORTCOCHI. 2. THAHSILDAR, KOCHI. 3. VILLAGE OFFICER, PUTHUVYPPU, OCHANTHURUTHU P.O., ERNAKULAM. R1 TO R3 BY GOVERNMENT PLEADER SRI. M.A. ASIF. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.20913/2009-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTICE DTD. 08/03/74 ISSUED BY THE R.2. TAHSILDAR. EXT.P.2: COPY OF THE PROVISIONAL PATTA IN LA 789/74 ISSUED UNDER RULE 9 (1) OF THE KLA RULES BY THE TAHSILDAR. EXT.P.3: COPY OF THE BASIC TAX REGISTER MAINTAINED IN THE VILLAGE OFFICE, PUTHUVYPU. EXT.P.4: COPY OF THE SAID REPORT OF VILLAGE OFICER DTD. 24/02/07. EXT.P.5 & 6: COPIES OF THE LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICER. EXT.P.7: COPY OF THE ORDER OF THE TAHSILDAR DTD. 07/05/08. EXT.P.8: COPY OF THE JUDGMENT DTD. 03/10/2008 IN W.P.(C). NO. 29274/08. EXT.P.9: COPY OF THE ORDER OF THE R.D.O DTD. 26/02/2009. EXT.P.10: COPY OF THE NOTICE DTD. 15/02/2008 OF THE THASILDAR. EXT.P.11: COPY OF THE OBJECTION FILED BY THE PETITIONER. EXT.P.12: COPY OF THE THANDAPER REGISTER OF LANDS IN ERNAKULAM DISTRICT IS IN FAVOUR OF GOPINATHAN. RESPONDENTS' EXHIBIT: EXT.R2.A: COPIES OF NOTICE AND ORDERS OF ASSIGNMENT. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 20913 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of May, 2010 J U D G M E N T One Krishnan applied for assignment of certain land in 1974. Ext.P2 order of assignment on registry was passed in his favour. Later he died. Subsequently his son Gopinathan who inherited the property by succession applied for a copy of the patta in respect of the property since the same was not traced out. But the same was not given. Subsequently Gopinathan also died. Later on, the 2nd respondent cancelled Ext.P2 assignment order by Ext.P7. An appeal was filed by the widow of late Gopinathan before the RDO under the Kerala Land Assignment Rules. The RDO by Ext.P9 order quashed Ext.P7 order and directed as follows: In this circumstance stated above, I am canceling the impugned order of the Tahsildar, Kochi dated 7-5-2008 directing the Tahsildar, Kochi to proceed with the L.A. action and issue patta to the legal heirs of late Sri. Gopinathan, S/o. Late Krishnan considering Ext.P10 after due enquiry and fulfilling all L.A. Proceedings at the earliest. Any how within 2 months from the date of receipt of a copy of this order. W.P.(C)No. 20913 of 2010 -2- 2. Petitioners now submit that proceedings are being initiated by the respondents in the land acquisition proceedings itself from the beginning which is not what has been directed in Ext.P9 order. Petitioners 2 & 3 are the children of the 1st petitioner and late Gopinathan. They have filed this writ petition seeking the following reliefs: i) issue a writ of mandamus directing 1st and 2nd respondent to issue patta in favour of the petitioners on the strength of Ext.P2 L.A. proceedings 789/74 being the legal heir of Late Gopinathan. ii) Declare that the Ext.P2 patta issued under Rule 9 (1) of KLA Rules as per LA proceedings 789/74 is valid and assignable to Late Gopinathan and his heirs as per the KLA Rules. 3. A counter affidavit has been filed by the 2nd respondent taking the stand that the assignment itself is illegal and therefore entire proceedings are to be started afresh as directed in Ext.P9 order. 4. I have considered the rival contentions in detail. Since the entire facts of the case and contentions of the parties can be ascertained from Ext.P9 order itself, I deem it appropriate to extract the entire order which reads as follows: W.P.(C)No. 20913 of 2010 -3- This appeal petition is against the impugned order of Tahsildar, Kochi No.1617/07 dated 7-5-08 cancelling the L.A. proceedings in L.A. 789/74 filed by Smt. Indira Bai W/o. late Sri. Gopinathan S/o. late M.K. Krishnan. The history of the case is as follows:- Sri. M.K. Krishnan, Mangatt House, Ochanthuruth has applied for the assignment of 18.62 ares of land in Survey No.1488/1 of Elamkunnapuzha village. Accordingly L.A. 789/74 booked in his name and assignment proceedings were initiated in his favour. The 12 (1) notice as per KLA Rules 1964 is seen published on 8-3-1974 and order of assignment on registry as per rule 9 (1) was also seen issued to the party stating the details of Land value, survey charge etc as detailed below: 1. Land Tax - 0.95 2. Survey Charge - 10.17 3. Land Value - 35.72 4. Arrears - 5.40 ---------- 52.54 ==== The Village Officer has reported that the party has remitted the amount on 13-6-1974 ie; within the stipulated time. As per the direction of the Honourable High Court of Kerala in WP (C) 29274/08 a personal hearing was also conducted. Learned Adv. P.N. Mohanan appeared for and on behalf of the appellant. The Counsel stated that the assignment proceedings initiated about 34 years back in the name of Mr. M.K. Krishnan father in law of the petitioner. The Technical irregularity pointed out by the Tahsildar is not a fault from the part of the assignee or his legal heirs. From the report of Village Officer it is very clear that the land is under the possession of the assignee or his ancestors. Hence the action of the Tahsildar is against law and social justice. The statement of putting of facsimile instead of hand signature is not a fault of the assignee or his legal heirs and any fault or defect noticed is due to the negligence from the part of the government officials not my client. It is very unfortunate to note that the pattayam either provisional or original is not seen issued to the assignee after the lapse of 34 years. W.P.(C)No. 20913 of 2010 -4- The assignee is reported died in 1976. As per the village records the details of issue of pattayam is not available. And it is also seen from the report of Tahsildar, Kochi that the Assignment order is seen cancelled as per proceedings No.S4-1617/07 dated 7-5-08 of Tahsildar, Kochi. Aggrieved by the impugned order Smt. Indira Bai W/o. Gopinathan filed WP (C) 29274/08 before the Honourable High Court and the Honourable court as per order dated 3-10-2008 directed the Revenue Divisional Officer to consider the Ext.P10 and pass appropriate orders. Accordingly I verified the all available records connected to the assignment of land. It is seen that an extent of 18.62 ares of land in survey No.1488/1 of Elankunnapuzha Village was under the possession and was proposed to be assign in the name of the M.K. Krishnan, Mangattu, Ochanthuruth. Necessary 12 (1) notice was published order of assignment registry were also seen issued in 1974 itself. The assignee has remitted the arrears of dues in respect of land under assignment in 1976 itself. But the patta is not seen issued in the name of assignee. After the death of the assignee, Sri. Gopinathan S/o. Sri. Krishnan applied for the pattayam. But as per the resurvey records of Puthuvype Village an extent of 17.25 ares of land comprised in Survey Nos.55/11 (Old Survey No.1488/1) is seen assigned in the name of Gopinathan S/o.late Krishnan under T.P.No.570. But the Tahsildar, Kochi has cancelled the L.A. proceedings after conducting an enquiry on the following ground. 1. 12 (1) Notice was not published in proper. 2. The hand written signature is not seen in the notice and a facsimile is seen fixed in the notice. 3. In the L.A.O also facsimile is seen fixed. 4. The land has not included in LA. list. I verified the records and conducted due enquiries in this regard. W.P.(C)No. 20913 of 2010 -5- The 12 (1) notice is seen published about 34 years back. Fixation of facsimile is not anyway the fault of the assignee. The assigning authority has the right to ensure that the land in question has included in the L.A. List and all formalities was completed before assignment. In this case the L.A. Order is seen cancelled by the Tahsildar in 2008. But the Tahsildar who cancelled the order is not seen conducted a proper enquiry in this regard. But his predecessor is seen conducted an enquiry but not seen passed any proper order. This is against the direction of Honourable Court published in 2007 (2) KLJ 865. ORDER In this circumstance stated above, I am canceling the impugned order of the Tahsildar, Kochi dated 7-5-2008 directing the Tahsildar, Kochi to proceed with the L.A. action and issue patta to the legal heirs of late Sri. Gopinathan, S/o. Late Krishnan considering Ext.P10 after due enquiry and fulfilling all L.A. Proceedings at the earliest. Any how within 2 months from the date of receipt of a copy of this order. 5. What I have to now consider is the effect of Ext.P9 order. There cannot be two opinions that by Ext.P9, Ext.P7 order has been set aside. Further it has been specifically found therein that all formalities was completed before the assignment itself. It is after entering into such a finding that the 1st respondent has directed issue of patta to the legal heirs of Gopinathan, son of late Krishnan. Of course, some more words which led to the confusion were added in that order as follows: W.P.(C)No. 20913 of 2010 -6- “considering Ext.P10 after due enquiry and fulfilling all L.A. Proceedings at the earliest” 6. I am of opinion that after having found that all formalities for assignment were completed before the assignment and directing issue of patta to the legal heirs of late Gopinathan, son of late Krishnan, the respondent cannot now take the stand that for doing that the entire proceedings have to be started afresh. I am of opinion that the proceedings referred to in Ext.P9 can only be the proceedings for issue of actual patta and not for the assignment itself. The 1st respondent has already found that the assignment is in order and cancelled Ext.P7 order cancelling that assignment. It is thereafter the 1st respondent has directed the 2nd respondent to issue patta pursuant to the assignment. It cannot be disputed that issue of patta is only after assignment as such. Clearly the assignment is over. It has been upheld by the RDO. The same cannot now be reviewed or reconsidered. In fact by Ext.P9, the RDO has directed issue of patta itself. In the W.P.(C)No. 20913 of 2010 -7- above said circumstances it is declared that by Ext.P9 what has been contemplated is issue of patta, assignment order for which has been held to be valid. Accordingly I dispose of this writ petition with a direction to the respondent to issue patta to the petitioners as directed in Ext.P9 within a period of one month from the date of receipt of a copy of this judgment. S. SIRI JAGAN JUDGE shg/