IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 OP.No.7615 of 2001(F) -------------------------- PETITIONER: -------------- LALY XAVIER, MANKUTHEL HOUSE, 16TH KANDAM, MURIEKKASSERY P.O., IDUKKI DISTRICT. BY MR.RAJU JOSEPH, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA, REP. BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, IDUKKI. 3. THE SPECIAL TAHSILDAR (LA), MURIEKKASSERY P.O., IDUKKI. 4. ABRAHAM JOSEPH, MANKUTHEL HOUSE, POOMAMKANDOM, VATHIKUDY VILLAGE, IDUKKI. 5. XAVIER JOSEPH, MANKUTHEL HOUSE, MURIEKKASSERY P.O., IDUKKI. BY MS.SMITHA SUKUMAR, GOVERNMENT PLEADER. MR.P.R.VENKETESH, ADVOCATE, FOR R4 & R5. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No.7615/2001 Order on C.M.P.No.12415/2001 in O.P.No.7615/2001 Closed. 30.03.2009 Sd/- S. SIRI JAGAN, JUDGE. A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER SECTION 6(2) OF THE RULES. EXT. P2 : COPY OF THE CONSENT LETTER GIVEN BY THE 5TH RESPONDENT DATED 7.9.1994. EXT. P3 : COPY OF the APPROVED SKETCH OF THE PROPERTY ISSUED BY THE SUPERINTENDENT OF SURVEY & LAND RECORDS, MURICKKASSERY. EXT. P4 : COPY OF THE REPORT OF THE REVENUE INSPECTOR ALONG WITH THE RECOMMENDATION OF THE VILLAGE ASSISTANT DT. 12.9.1994. EXT. P5 : COPY OF the MAHAZAR AND SKETCH OF THE PROPERTY PREPARED BY THE VILLAGE ASSISTANT DT. 12.9.1994. EXT. P6 : COPY OF the ORDER OF ASSIGNMENT IN FORM No.4 IN L.A.No.7292/93 DTD. 28.2.2000. EXT. P7 : COPY OF THE PATTAYAM IN L.A.No.7292/93 DTD. 29.2.2000. EXT. P8 : COPY OF the LAND TAX RECEIPT No.29 DTD. 12.3.2000. EXT. P9 : COPY OF THE ORDER No.C3-9895/2000 DTD. 20.3.2001 BY THE VILLAGE OFFICER. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp S. SIRI JAGAN, J. ------------------------------------ O.P.No.7615 OF 2001 ---------------------------------------- Dated this the 30th day of March, 2009 JUDGMENT This is a classic case of harassment of a wife by her husband and his brother. The petitioner is the wife. The husband is the 5th respondent and the brother of the husband is the 4th respondent. When the petitioner and the 5th respondent husband were in good terms, the petitioner applied for assignment of certain properties jointly in possession of the wife and the husband under the Kerala Land Assignment (Regularisation of Occupation of Forest Lands prior to 1.1.1977) Special Rules, 1993. The 5th respondent husband issued a consent letter for assignment of 15 cents in favour of the petitioner. At that time, the petitioner's husband was in possession of 96.10 Ares of non-patta land in the very same Village and he had applied for assignment of that land, which was granted to him as per patta No.1040. The petitioner's application for assignment was processed. Objections were called for. All proceedings were completed as evidenced by Exts.P1, P2, P3, P4 O.P.No.7615/01 2 and P5. Those proceedings were in 1994. At that time, an Organisation called Nature Lovers Movement filed a public interest litigation viz. O.P.No.14276/1993, challenging assignment of lands generally in Idukki District. This Court granted an interim order of stay of assignment of lands in Idukki District which stay was in force for 5 years. While so, the relationship between the petitioner and the 5th respondent soured. The petitioner alleges that the 5th respondent started ill-treating her. Finally, the 5th respondent threw the petitioner out of the house and from 1.2.2000 onwards, the petitioner is staying with her parents. There was some matrimonial cases pending between them. After O.P.No.14276/1993 was disposed of, proceedings were again initiated for assignment of the land in favour of the petitioner. Ext.P6 order dated, 28.2.2000 was passed assigning the land in favour of the petitioner. The petitioner paid the value of the land and Ext.P7 patta dated 29.2.2000 was issued to the petitioner. Thereafter, the petitioner was paying tax in respect of the property as evidenced by tax receipt dated O.P.No.7615/01 3 22.3.2000, which is produced as Ext.P8. Thereafter, the 5th respondent along with the 4th respondent started harassing the petitioner. It appears that in the meanwhile the 5th respondent had sold 4 cents out of the property to his brother, the 4th respondent. Subsequently, the 4th respondent challenged the patta issued to the petitioner before the 2nd respondent District Collector, who issued notice to the petitioner for a hearing of the appeal. Pursuant thereto, the petitioner was not served with any order. Later on, she came to know that the appeal was allowed in favour of the respondents 4 and 5. Therefore, she approached the Village Officer on 23.2.2001 and obtained a copy of the same, which is produced as Ext.P9. The petitioner is challenging Ext.P9 order in this original petition. 2. I have heard the parties. At the out set I note that the appellate authority under Rule 17(1) of the Kerala Land Assignment (Regularisation of Occupation of Forest Lands prior to 1.1.1977) Special Rules 1993, against an order of the Tahsildar, is the Revenue Divisional Officer. Of course, under Sub Rule 8 thereof, the District Collector is competent to O.P.No.7615/01 4 revise, cancel or alter on his own motion or otherwise any decision made or order passed by the Tahsildar or Revenue Divisional Officer under these Rules. But the revisional jurisdiction of the District Collector is not as wide as the appellate jurisdiction of the Revenue Divisional Officer. In a revision, the revisional authority is not expected to reappraise the evidence in a case. If the District Collector wanted to hear the appeal instead of the R.D.O., by passing the appellate provisions, proper reasons should have been recorded, even if the District Collector could validly hear the appeal. There is absolutely no explanation as to why the District Collector decided to entertain the appeal, when admittedly the Revenue Divisional Officer is the appellate authority. No reasons are also mentioned in Ext.P9 for the same. For that reason alone, Ext.P9 order is liable to be quashed. 3. Apart from that, I am of opinion that on merits also, the petitioner is entitled to succeed in this original petition. The primary ground, on which the District Collect found fault with the order of the Tahsildar, is that the consent of the 5th O.P.No.7615/01 5 respondent was given in 1993, whereas the assignment order is passed only in 2000. The District Collector gave undue weight to the fact that the 5th respondent had executed a sale deed in favour of his brother, the 4th respondent in respect of 3.5 cents of land with the building and the fact that on the date of assignment, the 4th respondent was in possession of the land. The possession contemplated under Rule 5 of the Kerala Land Assignment (Regularisation of Occupation of Forest Lands prior to 1.1.1977) Special Rules 1993 is legal possession. Simply because a person who was in legal possession is dispossessed by an illegal act of another person, that too while the proceedings for assignment was in the last stage, that person deprived of possession would not cease to be entitled to assignment simply because another person has taken illegal possession of the same. Admittedly the 4th respondent came into possession only in 1999, on account of the illegal action of the 5th respondent, long after the application for assignment by the petitioner, with the consent of the 5th respondent, had already been processed and orders O.P.No.7615/01 6 on the same was pending. Therefore, the sale by the 5th respondent to the 4th respondent and the possession by the 4th respondent pursuant to the same are clearly illegal. Still further, although the 4th respondent’s appeal was and could have been only in respect of 3.5 cents, the District Collector found it necessary to cancel the entire patta which comprises of 15 cents. In this connection the finding of the District Collector that the petitioner applied only for 4 cents does not appear to be convincing. In Ext.P2 consent letter of the 5th respondent he has given consent for assignment of 0.0162 hectares in Sy.No.1/3 and 0.0450 hectares in 84/8 in respect of which property only the Tahsildar has given Ext.P4 report recommending assignment. The District Collector proceeded as if the petitioner was the wrongdoer, whereas actually the respondents 4 and 5 cheated the petitioner of her lawful entitlement for assignment. The District Collector also went wrong in holding that there is no provision to assign land based on consent. When two persons are in possession there is nothing wrong in one person giving consent for assignment O.P.No.7615/01 7 of the land in joint possession to the other which only has been done by the 5th respondent in favour of the petitioner. The District Collector also went wrong in holding that the consent in 1993 could not have been relied on for assignment in 2000. The District Collector completely lost sight of the fact that the proceedings started in 1993 and the delay in passing order of assignment was only because of the stay order of this Court. The District Collector, instead of considering the possession on the date of application by the petitioner, gave credence to the illegal possession by the 4th respondent in 2000, which is clearly unsustainable. The 4th respondent's possession is only through the 5th respondent, who had in 1993, relinquished his right of possession in favour of the petitioner for the purpose of assignment. In such circumstances, the District Collector ought to have upheld the assignment in favour of the petitioner. The facts speak for themselves. At the time when the application was made the petitioner together with the 5th respondent was in joint possession of the land in question. The 5th respondent had admittedly executed a consent letter in O.P.No.7615/01 8 favour of the petitioner for assignment of the said land which he had not withdrawn also. The entire procedure prescribed under the rules for assignment of the land in favour of the petitioner was fully completed in 1993 itself. Till then, the 5th respondent had no objection whatsoever in assigning the land in favour of the petitioner, who was at that time on good terms with his wife. At that time, the order of stay of this Court intervened, as a result of which only the patta could not be issued to the petitioner. Between 1994 and 1999 the entire scenario changed, the 5th respondent became enemical to his wife and chucked her out of the house. As such, the petitioner was deprived of her lawful possession of the property by the illegal act of the 5th respondent husband. Thereafter, he executed an assignment deed over part of the properties in favour of his brother the 4th respondent, on the strength of which he has filed an appeal before the District Collector. Evidently, this was a fraud played on the wife by respondents 4 and 5 together, which would vitiate the entire proceedings evidenced by Ext.P9. I am of opinion that the District Collector O.P.No.7615/01 9 misdirected himself in allowing the appeal. The petitioner was the original claimant for assignment of the land in question. At the time of application she was also in possession of the land. As such, the District Collector could not have validly set aside the patta validly issued in favour of the petitioner. Accordingly, Ext.P9 is quashed. Ext.P7 patta in favour of the petitioner is restored. Respondents 2 and 3 are directed to see that the possession of the property, covered by Ext.P7, is taken over from respondents 4 and 5 and handed over to the petitioner, if necessary, with the aid of Police. Respondents 2 and 3 shall see that all necessary help is given to the petitioner to enable her to enjoy the property peacefully without any interference from respondents 4 and 5 or anybody acting under them. Action in this regard shall be taken and completed within a period of one month from the date of receipt of a copy of this judgment. In view of the inhuman attitude of respondents 4 and 5, I am inclined to direct them to pay exemplary costs to the petitioner. Each of them shall pay Rs.10,000/- to the petitioner as costs of the proceedings. O.P.No.7615/01 10 Respondents 2 and 3 shall recover the costs from respondents 4 and 5 and pay the same to the petitioner within the above said period of one month. The original petition is allowed as above. S. SIRI JAGAN, JUDGE Acd O.P.No.7615/01 11