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Judgment
C. Jayachandran, J
The Kerala Service Inam lands (Vesting and Enfranchisement) Act, 1981 (for short, 'Service Inam Lands Act') is an enactment introduced to provide for the vesting and enfranchisement of Service Inam lands in the State by abolition of all services attached to such lands. The vesting of all right, title and interest of the land owners in the Service Inam lands on the Government is automatic, by virtue of Section 3 of the Act. Under Section 3(2), any service or obligation attached to such Inam lands shall stand abolished. However, the Service Inam Lands Act recognises the right of the landholder – not of the land owner – to seek assignment of the right, title and interest over any Service Inam land, which vest with the Government in terms of Section 3 of the Act. Section 5(2) enables the landholder to apply to the Settlement Officer for assignment of such right over the Service Inam lands. Section 6 mandates the landholder to pay the purchase price to the Government for the assignment of the right, title and interest of the land owner. The Settlement Officer is duty bound in terms of Section 7(4) to pass an Order specifying the extent, survey number and other particulars of the land, together with the amount due to the land owner under Section 4 and the purchase price payable by the landholder under Section 6, for the purpose of assignment of the Service Inam lands to the landholder. Once, the Order of the Settlement Officer becomes final, such Officer has to issue pattas or other documents, evidencing full proprietary rights of the landholders in their holdings. Section 11 of Service Inam Lands Act, deems the Orders of the Settlement Officer as a decree of the Civil Court. Sections 12 and 13 respectively provides an appeal and revision from the Orders of the Settlement Officer, the former before the District Collector and the latter, the Board of Revenue.
With the above prelude, let us have a look at the attendant facts involved in this Writ Petition. Three Original Applications were filed under Section 5 seeking assignment of landholder's right before the District Collector. The first O.A No.76/1982 was filed by one Nani Devaki (the predecessor of respondents 5 to 20 herein); the second, O.A No.640/1982, by one Gopalan Gopi (the 21st respondent herein); and the third, O.A No.861/1982, by one Gopalan Pillai Velappan Nair (the predecessor of respondents 22 to 26). All the three claimants claimed assignment of landholder's right in respect of 49 cents of land in Survey no.1983 of Madathuvilakom Village. After several rounds of litigation - about which detailed reference will be made here below - the said three applicants have allegedly settled the matter and filed a Compromise Petition before the Settlement Officer, accepting which, the impugned Ext.P47 Order was passed, in terms of the compromise. The petitioners herein are persons, who have purchased the rights of Gopalan Gopi, the 21st respondent herein, pendente lite and who had participated in the litigation, which went upto the Hon'ble Supreme Court. According to the petitioners, the compromise entered into without the junction of the petitioners is fraudulent and collusive, besides being illegal, inasmuch as the 21st respondent had no competence to enter into any compromise, after assigning his entire rights to the petitioners. On such premise, the petitioners preferred Ext.P49 revision before the Commissioner of Land Revenue, which, however, was rejected vide Ext.P55. Exts.P47 and P55, along with Ext.P41, are under challenge in this Writ Petition.
This Court will now refer to the various proceedings/ litigations, which ultimately led to the issuance of the impugned Exts.P47 and P55 Orders.
Sl.
No.
Date
Event
Remarks
1
1982
O.A Nos.76/1982, 640/1982 and 861/1982 were filed by Nani Devaki, Gopalan Gopi and Gopalan Velappan Nair respectively, claiming assignment under Section 5 of the Service Inam Lands Act.
_
2
26.02.1985
The Settlement Officer allowed O.A No.640/1982 preferred by Gopalan Gopi (R21) and dismissed the other O.As.
_
3
_
Nani Devaki and Gopalan Pillai Velappan Nair filed Appeal before the District Collector/R1.
_
4
20.10.1987
The District Collector set aside the Order of the Settlement Officer dated 26.02.1985 and remitted the matter to him.
_
5
29.01.1988
The Settlement Officer passed a Common Order, again allowing O.A No.640/1982 and dismissing the other O.As.
_
6
_
The Common Order was again challenged by Nani Devaki and Gopalan Pillai Velppan Nair before the 1st respondent/District Collector.
_
7
20.09.1988
The 1st respondent confirmed the Order of the Settlement Officer, pursuant to which, rights over 49 cents of land was assigned to Gopalan Gopi/R21.
_
8
06.10.1988
The 2nd respondent/Settlement Officer issued purchase certificate in favour of Gopalan Gopi/R21, after accepting payment of purchase price from him.
Ext.P35.
Also see Ext.P36
receipt evidencing payment of purchase price; and Ext.P37
receipt regarding acceptance of tax.
9
26.02.1990
The revision filed by Nani Devaki before the Board of Revenue was rejected.
_
10
1990
Nani Devaki challenged all the three Orders of the Settlement Officer, the District Collector and the Board of Revenue before the High Court by filing O.P No.4294/1990.
_
11
06.11.1992
Petitioners 1 to 3 herein and one Sarojaksha Kurup purchased property having an extent of
37 cents out of the subject 49 cents from Gopalan Gopi/R21.
Note:-
The 1st petitioner purchased 10 cents; the 2nd petitioner also purchased 10 cents; and the 3rd petitioner purchased 8.5 cents. The 4th petitioner purchased 8.5 cents from the above said Sarojaksha Kurup. Thus the petitioners jointly claimed title to 37 cents, forming part of the subject 49 cents.
The petitioners effected mutation and paid land tax.
Exts.P1, P2, P3
12
16.03.1999
O.P No.4294/1990 preferred by Nani Devaki was allowed and all the three Orders of the Settlement Officer, the District Collector and the Board of Revenue were set aside. The matter was remitted to the 2nd respondent Settlement Officer to pass fresh Orders.
_
13
24.02.2006
Three Writ Appeals preferred by the 3rd petitioner, the 21st respondent and the 1st petitioner herein respectively were dismissed by the High Court.
_
14
_
Petitioners 1 and 3 and the 21st respondent herein filed Special Leave Petitions before the Hon'ble Supreme Court, which were later numbered as Civil Appeal Nos.1536/2008, 1540/2008 and 1537/2008 respectively.
_
15
14.02.2008
The Supreme Court by virtue of Ext.P5 common judgment set aside this Court's judgment in
O.P No.4294/1990 and remanded the case to the Settlement Officer for adjudication afresh.
Ext.P5
16
18.08.2015
The Settlement Officer heard and rejected
O.A No.641/1982 filed by Gopalan Gopi/R21.
Note 1:-
It is the petitioners' case that they were not in picture at that point of time on the belief that their interest will be appropriately safeguarded by their assignor/ R21.
Note 2:-
The 2nd respondent Settlement Officer found Nani Devaki to be in possession of the property as on 06.08.1981 and hence entitled to assignment of 36 cents of land, leaving
13 cents for widening the road.
Ext.P41
17
_
The assignor/R21 carried an Appeal before the District Collector against the Order of the Settlement Officer dismissing his O.A.
_
18
23.03.2018
The appeal filed by R21 was allowed.
Ext.P43
19
15.10.2018
The Writ Petition filed by the legal representatives of Nani Devaki challenging Ext.P43 appellate Order of the District Collector was allowed and the matter was remitted back to the District Collector.
Note:-
It was while the matter was being considered by the District Collector that the appellants namely legal heirs of Nani Devaki, Gopalan Gopi and legal heirs of Gopalan Pillai Velappan Nair compromised the matter by and between themselves, as per which, 11.09 cents was agreed to be assigned to R21 herein; 15.09 cents to Nani Devaki and 10.09 cents to Gopalan Velappan Nair.
Ext.P48 is the document evidencing compromise.
See Ext.P44
20
14.10.2022
The petitioners filed an impleading petition before the District Collector. However, no Orders were passed in that application.
Ext.P45
21
14.09.2023
The District Collector accepted the compromise and issued Orders assigning the rights over the respective extent of lands to the original applicants in terms of the compromise.
Ext.P47
22
16.02.2024
The petitioners carried a revision before the Commissioner of Land Revenue, which also was, however, dismissed, vide Ext.P55.
Ext.P49
23
20.03.2024
This Court directed the 3rd respondent to consider Ext.P49 revision, as per the judgment rendered in W.P.(C) No.4472/2024 and connected cases preferred by the petitioners herein.
Ext.P50
24
10.09.2024
The 3rd respondent Commissioner of Land Revenue rejected Ext.P49 revision petition and confirmed Ext.P47 Order.
Ext.P55
It is accordingly that Exts.P41, P47 and P55 are impugned in this Writ Petition.
Heard Sri.Pirappancode V.S.Sudhir, on behalf of petitioners; Smt.Devishri.R on behalf of respondents 1 to 3; Sri.Lakshmi Narayan R., learned Senior Counsel, duly instructed by R. Renjanie, on behalf of respondents 5 to 13, 15 to 20 and additional respondents 27 to 32; Sri.Ajith Krishnan on behalf of 21st respondent and Sri.T.Rajasekharan Nair on behalf of respondents 22 to 26. Perused the records. The respective contentions of the parties will be referred to while discussing the point for determination.
Having heard the learned counsel appearing for the respective parties, this Court finds substantial merit in the submissions made by the learned counsel for the petitioners. This Court will first address the contention raised in ground 'N', which, more or less, goes to the root of the matter. Going by the scheme of the Service Inam Lands Act, the vesting of the rights of the land owners in the Government is automatic with effect from the appointed day. Therefore, there cannot be any doubt on the fact that the subject 49 cents of land have vested with the Government by operation of Section 3 of the Service Inam Lands Act. The applicants in the three O.As can only seek assignment of the landholder's right, as envisaged in Section 5 of the Act, each of the applicants claiming possession as on the appointed day. Therefore, unless and until an assignment, as sought for in terms of Section 5 of the Act, has been allowed/made in favour of any of the applicants, the applicants will have no right, as such, over the subject service Inam land. In other words, the applicants had no pre-existing right, so as to enable them to arrive at a compromise, contemplating allotment of specified extends to each of the applicants. The inevitable conclusion is that the compromise vide Ext.P48 has no legs in law. Now, coming to the impugned Order vide Ext.P47 of the District Collector, which accepted the compromise, this Court may have to find that the same is also equally fallacious and illegal. The Settlement Officer has a duty cast on him, as per the Service Inam Lands Act, to pass an Order in terms of Section 7(4) of the Act, after considering the claims and objections and after making due enquiries, assigning the landholder's right to the applicants, or, for that matter, any of them in O.A Nos.76/1982, 640/1982 and 861/1982. Inasmuch as the matter stands remitted to the 1st respondent/District Collector by virtue of Ext.P44 judgment of the High Court, the 1st respondent/District Collector has an even duty to decide/adjudicate the issue in terms of the judgment of this Court. Going by Section 12 of the Act, the District Collector has a duty to pass an Order on the merits of the appeal, after affording a reasonable opportunity of being heard to the parties and after making such further enquiry as may be prescribed. This duty/responsibility of the 1st respondent/ District Collector cannot be absolved, in the light of a Compromise Petition filed by the parties in the O.As, especially when such compromise itself is non est in law. Ext.P47 impugned Order is liable to be interfered with on that count alone.
Now, coming to the merits of the matter, especially into the allegations of fraud and collusion on the part of the party respondents, this Court should notice that the petitioners have purchased the rights of the 21st respondent over an extent of 37 cents, forming part of the subject 49 cents, by virtue of Exts.P1 to P4 documents. It is also noteworthy that such purchase was effected when the District Collector had confirmed the Order of the Settlement Officer dated 29.01.1988 by virtue of the appellate Order dated 20.09.1988. Pursuant thereto, purchase certificate was issued to the 21st respondent, after accepting the purchase price from him. Ext.P36 receipt and Ext.P37 land tax receipt, dated 06.10.1988 and 14.10.1988 respectively, assume significance in this context. Suffice to say that the petitioners had reasonably ensured the title of the 21st respondent at the time when they purchased the above-referred 37 cents, forming part of the subject 49 cents. Of course, it is a transaction pendente lite and therefore rendered subject to the result of the pending litigation. This well established principle flowing from the doctrine of lis pendens is considered by the Hon'ble Supreme Court in T.G.Ashok Kumar v. Govindammal and Another [(2010) 14 SCC 370] in paragraph nos.12 and 13, which are as follows:
“12. In Jayaram Mudaliar v. Ayyaswami [(1972) 2 SCC 200: AIR 1973 SC 569] this Court held (at SCC p.218, para 47) that the purpose of Section 52 of the Act is not to defeat any just and equitable claim, but only to subject them to the authority of the court which is dealing with the property to which claims are put forward. This Court in Hardev Singh v. Gurmail Singh [(2007) 2 SCC 404] held that Section 52 of the Act does not declare a pendente lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser bound by the decision in the pending litigation.
The principle underlying Section 52 is clear. If during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected.”
Secondly, it is important to note that, against the judgment in O.P No.4294 of 1990, petitioners 1 and 3 herein preferred separate Writ Appeals, besides a Writ Appeal preferred by their assignor/21st respondent. Thus, petitioners 1 and 3, and 21st respondent were sailing together in attacking the judgment in O.P No.4294/1990. Upon the Writ Appeals being dismissed, petitioners 1 and 3 carried separate Special Leave Petitions before the Supreme Court, which were later numbered as C.A Nos.1536/2008 and 1540/2008. These two S.L.Ps were preferred independent of and in addition to the S.L.P preferred by the 21st respondent, which was also numbered as Civil Appeal No.1537/2008. It is in those Civil Appeals that Ext.P5 common judgment was passed, setting aside the judgments of this Court in O.P No.4294/1990, as confirmed in the Writ Appeals; and remitting the matter back to the Settlement Officer.
It is true that the petitioners have not taken care to participate in the proceedings before the Settlement Officer, pursuant to the remand made by the Hon'ble Supreme Court. The explanation offered by the petitioners is that they have reposed confidence in the 21st respondent, who was all along zealously guarding his interest, which was subsequently transferred to the petitioners. According to the learned counsel for the petitioners, such industrious prosecution of the O.A. preferred by the 21st respondent is evident by the filing of the Writ Appeal, as also, the S.L.P, even after the sale of the properties to the petitioners. Besides, when the Settlement Officer decided to dismiss the O.A. preferred by the 21st respondent vide Ext.P41, the 21st respondent filed an Appeal before the District Collector in terms of Section 12 of the Service Inam Lands Act. Again, it is noteworthy that the same was carried by the 21st respondent alone, dehors the sale of the properties to the petitioners. Therefore, the petitioners are legitimate in their expectation and their explanation that the 21st respondent would safeguard their interests before the Settlement Officer and the petitioners cannot be pinned down to the folly of not participating in the proceedings before the Settlement Officer by seeking necessary impleadment therein.
When the interest of the petitioners over 37 cents of land, forming part of the subject 49 cents, is demonstrably and ex-facie made out, a compromise arrived at behind their back by the 21st respondent and legal representatives of the other two applicants in the three respective O.As cannot survive the test of law. Inasmuch as such compromise seriously jeopardises the interests of the petitioners over 37 cents of land (forming part of the subject 49 cents), the same can only be characterised as fraudulent and collusive, which finding is inevitable in the wake of the participation and the proceedings already initiated by the petitioners in safeguarding their rights over the properties by filing the Writ Appeals and even Special Leave Petitions before the Supreme Court. The proposition canvassed by the party respondents, that it is for the respective applicants in the three O.As to decide on entering into a compromise, which will bind the petitioners, who were assignees pendente lite, can hardly be countenanced in law. At the cost of a repetition, this Court may have to reiterate that the party respondents had no pre-existing right over the 49 cents of land, so as to enter into a compromise, resulting in allotment of specified extents to each of the applicants in the three O.As. Secondly, when the sale of the rights of the 21st respondent over an extent of 37 cents (forming part of the subject 49 cents) is a fait accompli, it is no more open for the 21st respondent to enter into a compromise, without the junction of the petitioners. In other words, the 21st respondent is incompetent to do so, he having been divested of all his rights over the 37 cents of land afore-referred. The contention that the said sale deeds were executed by a mistake would only add impetus to his sinister motive in entering into the compromise. There is no mistake, which is decipherable from Exts.P1 to P4 sale deeds. On the strength of this Court's finding that the 21st respondent was incompetent to enter into any compromise; that none of the applicants and their legal heirs in the three O.As had any pre-existing right over the 49 cents of land, so as to enable them to enter into a compromise; that the District Collector is duty bound to adjudicate the issue on merits as envisaged in Section 12 of the Service Inam Lands Act and in terms of the remand Order of this Court vide Ext.P44, it is hereby held that Ext.P47 Order of the District Collector, recording the compromise and allotting the properties to the applicants in the O.As, is illegal and the same will stand set aside. The Revisional Authority, the Board of Revenue, failed to address any of the above issues in issuing Ext.P55 Order and the same will also, consequently, stand set aside.
This Court finds no necessity to specifically set aside Ext.P41 Order of the Settlement Officer, inasmuch as the 21st respondent has carried Appeal therefrom and the same culminated after several rounds of litigations on Ext.P44 by this Court, as per which, the matter stood remanded to the 1st respondent/District Collector for reconsideration, on merits.
The Orders having been set aside, the 1st respondent/ District Collector will adjudicate the question of assignment claimed by the applicants in O.As on merits in terms of Ext.P44 Order passed by this Court. Needless to say that the petitioners will have a right to seek impleadment in those proceedings, so as to safeguard their interests in the properties. After affording necessary opportunity to the applicants in the O.As, as also, the petitioners herein and also in accord with the findings of the Hon'ble Supreme Court in Ext.P5 common judgment, the 1st respondent/District Collector will take a call in the application for assignment on merits, expeditiously, at any rate, within a period of six months from the date of receipt of a copy of the judgment. Petitioners will produce a copy of this judgment before the 1st respondent, for compliance.
This Writ Petition will stand allowed, as indicated above.