1 WP(C)No.11558 of 2019 2025:KER:28583 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S. WEDNESDAY, THE 26TH DAY OF MARCH 2025 / 5TH CHAITHRA, 1947 WP(C) NO. 11558 OF 2019 PETITIONERS: 1 M.C.ANTONY,AGED 63 YEARS S/O.LATE M.P.CHACKO, MALIYEKKAL HOUSE, KUTTIKKANAM KARA, PEERMADE TALUK, IDUKKI DISTRICT. 2 THRESSIAMMA ANTONY,AGED 62 YEARS W/O. M.C.ANTONY, MALIYEKKAL HOUSE, KUTTIKKANAM KARA, PEERMADE TALUK, IDUKKI DISTRICT. BY ADVS. MATHEWS K.UTHUPPACHAN SRI.BIJU .C. ABRAHAM RESPONDENTS: 1 REVENUE DIVISIONAL OFFICER, IDUKKI-685602. 2 TAHSILDAR PEERMADE TALUK,PEERMADE,IDUKKI 685631 3 SPECIAL TAHSILDAR(LAND ASSIGNMENT) PEERMADE,IDUKKI 685631 4 VILLAGE OFFICER, PEERMADE 685631 5 K J KURIAKOSE,KANNAMPADAM,KIDANGOOR SOUTH, S/O KURIAKOSE JOSEPH, KOTTAYAM - 686572. 2 WP(C)No.11558 of 2019 2025:KER:28583 6 JAMES K JOSEPH,S/O. KURIAKOSE JOSEPH, KANNAMPADAM KIDANGOOR SOUTH, KOTTAYAM 686572. 7 THOMAS K JOSE, S/O.KURIAKOSE JOSEPH, KANNAMPADAM KIDANGOOR SOUTH, KOTTAYAM - 686572. BY ADV M.H HANIL KUMAR, SPECIAL GOVERNMENT PLEADER SRI.T.M.ABDUL LATHEEF THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.03.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 3 WP(C)No.11558 of 2019 2025:KER:28583 JUDGMENT Muralee Krishna, J. This writ petition is filed by the petitioners, under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P5 order dated 15.02.2019 passed by the 1st respondent Revenue Divisional Officer, Idukki, cancelling Ext.P3 patta dated 21.08.2015 granted to the petitioners and also a writ of mandamus commanding the 1st respondent to reconsider Ext.P4 appeal. 2. According to the petitioners, the father of the 1st petitioner Late M.P.Chacko was assigned with 2 Acres 98 cents of land in survey No.1133 of Peermade Village, as per Ext.P1 provisional patta dated 20.11.1965 issued by the 3rd respondent Special Tahsildar (Land Assignment), Peermade. Late Kuriakose Joseph, the father of respondents 5 to 7 purchased 1 Acre 90 cents, out of these 2 Acres 98 cents from late M.P. Chacko by virtue of assignment deed No.75/1967. He had also purchased 1 Acres 35 cents in survey No.1133 of Peermade Village and virivu covered in Ext.P2 patta issued in L.A. No.669 of 1964 from Kunneparambil Anthoni Pappu, by virtue of assignment deed No.603 of 1966. 4 WP(C)No.11558 of 2019 2025:KER:28583 After the death of M.P. Chacko, the petitioners obtained Ext.P3 patta dated 21.08.2015 in LA No.41/15/Pmd for an extent of 21.04 Ares in survey No.176/247. Respondents 5 to 7 filed OS No.177 of 2010 before the Sub Court, Kattappana, contending that the property assigned in Ext.P3 patta includes the land covered by Ext.P2 patta, which was subsequently purchased by their father from Kunneparambil Anthoni Pappu. They have also filed Ext.P4 appeal dated 15.03.2016 before the 1st respondent seeking cancellation of Ext.P3 patta. By Ext.P5 order dated 15.02.2019, the 1st respondent cancelled Ext.P3 patta. Contending that the said order was passed by the 1st respondent without hearing the petitioners or their counsel, the petitioners filed the present writ petition. 3. On 11.04.2019, this Court disposed of this writ petition directing the 1st respondent to rehear the matter after giving an opportunity to the petitioners, however with a condition that the petitioners shall pay a sum of Rs.3,000/- as costs to the Chief Minister’s Relief Fund. The petitioners were directed to appear before the 1st respondent on 15.05.2019 at 11.00 a.m. if they paid the cost as directed within a period of four weeks from the date of 5 WP(C)No.11558 of 2019 2025:KER:28583 that judgment. Subsequently, the party respondents filed R.P. No.598 of 2022 and by the order dated 31.07.2024, the judgment dated 11.04.2019 was set aside by allowing the review petition and the writ petition was restored to file. 4. The 2nd respondent Tahsildar, Peermade Taluk, filed a counter affidavit dated 25.01.2025 opposing the averments in the writ petition and producing therewith Ext.R1(a) document. Paragraphs 3 and 4 of that counter affidavit read thus: “3. It is submitted that the records maintained in the Office of the Tahsildar, Peermade would show that Exhibit P1 Land Assignment Patta in L.A No.908/1964 was issued to M.P. Chacko in respect of 2 acres 98 cents situated in Sy No.1133 of Peermade Village. The original assignee stated to have been transferred the assigned land as per document No. 603 of 1966 to K.J. Kuriakose and others. K.J. Kuriakose and others filed appeal and Ext.P5 order in Appeal was passed by the RDO, Idukki finding that a portion of the property included in L.A No.908 of 1964 was erroneously included in Ext.P3 Land Assignment Patta issued to M.C. Antony and Thressiamma in L.A No.41/15/PMD. The said appeal was considered by the RDO, Idukki with notice to the parties. The RDO had directed to conduct survey of the properties included in Ext. P1 and Ext.P3 Land Assignment Pattas. Thereafter, it was found that a portion of land included in Ext.P1 patta was included in Ext. P3 Land Assignment Patta 6 WP(C)No.11558 of 2019 2025:KER:28583 issued to M.C. Antony. Therefore, RDO issued Ext.P5 order cancelling Ext.P3 Land Assignment Patta accepting the contention of K.J. Kuriakose and others. 4. It is submitted that the survey of the properties would show that a portion of the land included in Ext. P1 patta was mistakenly included in Ext. P3 Land Assignment Patta. A true copy of the sketch prepared by the Surveyor is produced herewith and marked as Ext.R1(a). According to the Surveyor 11.71 ares of land covered by Ext. P1 Land Assignment Patta was wrongly included in Ext.P3 Land Assignment Patta. The RDO issued Ext. P5 order in the light of the facts and circumstances stated above. There is no irregularity or illegality in the order passed by the RDO to setting aside Ext.P3 Land Assignment Patta. It is submitted that since Ext.P3 Land Assignment Patta has been cancelled by the RDO, a fresh Land Assignment Patta can be issued to the petitioners after deducting overlapped area from Ext.P3 Patta, which is covered by Ext.P1 Land Assignment Patta, originally issued to M.P. Chacko. The writ petition is devoid of merit accepting the contention of the respondent”. 5. Heard the learned counsel for the petitioners, the learned Special Government Pleader and the learned counsel for the party respondents. 6. The learned counsel for the petitioners would submit that Ext.P5 order was passed by the 1st respondent without giving proper opportunity of hearing to the petitioners on 16.02.2019, 7 WP(C)No.11558 of 2019 2025:KER:28583 the date on which the matter was posted for final hearing. Due to heavy traffic block the petitioners could not reach the office of the 1st respondent in time, and hence, the hearing was conducted in their absence. 7. On the other hand, the learned Special Government Pleader and the learned counsel for the party respondents would argue that except on 16.02.2019, on all other previous days, detailed hearings were conducted by the 1st respondent and the non- hearing of the petitioners on 16.02.2019 will not have any bearing on Ext.P5 order. Moreover, the learned Special Government Pleader further submitted that as per Rule 21 of the Kerala Land Assignment Rules, the petitioners are entitled to file an appeal before the District Collector against the order of the Revenue Divisional Officer. 8. From the counter affidavit filed by the 2nd respondent as well as from the Ext.P5 order of the 1st respondent, it can be seen that after the filing of Ext.P4 appeal by the party respondents, the 1st respondent conducted a detailed enquiry through the Tahsildar, Peermade and on the survey of the property it was found that an extent of 11.71 Ares of land covered in Ext.P1 patta was wrongly 8 WP(C)No.11558 of 2019 2025:KER:28583 included in Ext.P3 patta. It was under that circumstance, Ext.P5 order was passed by the 1st respondent. 9. Though the petitioners say that Ext.P5 order was passed by the 1st respondent without hearing the petitioners, the order would show that on all posting dates, except on 16.02.2019, both sides were heard in detail by the 1st respondent. The case was posted on 16.01.2019 by the 1st respondent since the Advocate who appeared for the petitioners sought time to produce some documents on the previous posting date. However, the case was adjourned to 16.02.2019 due to some unforeseen reasons. On 16.02.2019 the petitioners and their counsel were absent. It was under that circumstance, Ext.P5 order was passed by the 1st respondent. The relevant paragraph in Ext.P5 order is as under: “എൽ.എ- 908/64 ന്ᩘർ പ്ᨾയ വസ്തുവിൽ ഉൾ്പെ്ᨾ 0.1171 ്പെക്ടർ വസ്തു കൂടി ഉൾ്പെടു്ᩈി എൽ എ-41/15/പി.എം.ഡി പ്ᨾയം നൽകിയതുമായി എൽ.എ-41/15/പി.എം.ഡി ന്ᩘർ പ്ᨾയ നടപടികളിൽ വസ്തുതാപരമായ പിശകും ക്കമവിരു്ᩍയും സംഭവി്ᨴി്ᨾു്ᩦതായി ബ ാധ്യമാകു്ᩐു.” 10. While going through Ext.P5 order, it could be seen that the said order was dated 15.02.2019. When the appeal was posted 9 WP(C)No.11558 of 2019 2025:KER:28583 for hearing the parties on 16.02.2019, there was no possibility of passing the order on 15.02.2019. Therefore, the date of Ext.P5 order shown as 15.02.2019 in that order may in all probability be a mistake. In such circumstances, the petitioners cannot claim that Ext.P5 order was passed by the 1st respondent without giving them an opportunity of hearing, especially when it is clear that the parties were heard in detail prior to the last date of posting of that appeal and on 16.02.2019 it was posted for production of documents if any by the petitioners as requested on the previous posting date. But, even now the petitioners have no case that they were ready with some documents to be produced before the 1st respondent, for the specific purpose of which the appeal was posted on 16.02.2019. 11. As pointed out by the learned Special Government Pleader, Rule 21 of the Kerala Land Assignment Rules, 1964 provides a provision to appeal before the District Collector against an order passed by the Revenue Divisional Officer. Without exercising that right, the petitioners approached this Court with the above writ petition. Having considered the pleadings and materials on record and 10 WP(C)No.11558 of 2019 2025:KER:28583 the submissions made at the Bar, we find no ground to interfere with Ext.P5 order passed by the 1st respondent, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Therefore, the writ petition is dismissed on the ground of maintainability; leaving open the right of the petitioners to challenge Ext.P5 order of the 1st respondent before the District Collector, invoking the statutory remedy provided under Rule 21 of the Kerala Land Assignment Rules, 1964. Sd/- ANIL K.NARENDRAN, JUDGE Sd/- MURALEE KRISHNA S., JUDGE sks 11 WP(C)No.11558 of 2019 2025:KER:28583 APPENDIX OF WP(C) 11558/2019 RESPONDENT EXHIBITS Exhibit R1(a) A true copy of the sketch prepared by the Surveyor PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PATTAYA NO.126 DATED 20.11.65 ISSUED BY THE SPECIAL TAHSILDAR (LA)PEERMADE. EXHIBIT P2 TRUE COPY OF THE PATTAYAM NO.LA.669/1964. EXHIBIT P3 TRUE COPY OF THE PATTAYAM NO.LA.NO.41/15/PMD DATED 21.8.2015 ISSUED BY THE TAHSLIDAR. EXHIBIT P4 TRUE COPY OF THE APPEAL MEMORANDUM DATED 15.3.2016 FILED BY THE PARTY RESPONDENT BEFORE THE 1ST RESPONDENT. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 15.2.2019 PASSED BY THE 1ST RESPONDENT IN APPEAL NO.B2-1532/2016.