V.V. Kamat, J.
1. Legal right is a situation of assertion in a given legal system. This situation is meaningful only when it is enforceable at law. There are many legal situations to be seen as merely innocuous because under a legal system they cease to be enforceable. Apart from many illustrative events, the concepts of law of limitation results into many legal rights becoming unenforceable at law. The court exercising extraordinary jurisdiction under Article 226 of the Constitution of India, with its inherent limitation, has to be much conscious and circumspect especially when the cause at its inception in such proceeding is far out of limitation even under the ordinary civil law of limitation in the context.
2. Even under the law of limitation, it is the duty of the court (Section 3 of the Limitation Act) to see that the cause of action and the institution of the proceeding are legally correlated by the required provision of the limitation. In a writ petition, the question is perceived by the consideration of delay and laches. Although the principle yields to the aspect of justice and if the justice demands the delay and laches should (sic) into insignificance in comparison and alternative remedies and its efficaciousness would not deter if injustice is writ large on the surface, if it is found that the cause of action is hopelessly barred by limitation, even under the ordinary law, the writ court has to remember its extraordinary jurisdiction and judicial nature in the context. These aspects would certainly disturb the court for a long way.
3. There are reasons also. Facts and events not only for their consideration to draw necessary conclusions really submergeand become really dim by a passage of time taken by the petitioner to require the court to consider them in the context. The above features guide this court to consider the factual matrix.
4. As averred, during the years 1954 to 1956, for the purpose of the Mangalam Dam in Kizhakkoncherry village, Taluk Alathur, District Palghat, the State Government initiated land acquisition proceedings and the land acquisition officer -- the Special Tahsildar, Mangalam Project, passed an award No. 19 of 1956 on November 1, 1956. For the purpose of this petition, out of the land Sy. No. 714 -- totally admeasuring 297.09 acres, the land admeasuring 190.82 acres was acquired under the award as submerged area, survey No. 714 of the Village came within the catchment area of the dam. The contents of the award state that this was on the strength of the computation of the total extent covered by documents covered by claimants.
5. The present petitioner asserts that an extent of 22.50 acres of land within the catchment area in the aforesaid Sy. No. 714 forming a hillock projecting above the water-level has remained unacquired. This hillock is surrounded on all sides becoming inaccessible by the dam-water and is covered by the submerged area of the Mangalam Dam.
6. It is averred that from 1961 (five years after the award) the petitioner No. 1 herein and before him his father moved the State Government. It is necessary to reproduce vague assertions in the context :
'The petitioner No. 1 herein (and before him, his father Kuttan alias Sankaran Nair) had been moving representations after representations to the land acquisition authorities and the Government either to grant permission for enjoyment of the said unacquired land or to initiate proceedings for acquisition of the said extent also. These representations were made right from the year 1961, since there were no facilities for easy access to the water clogged hillock.'
7. In the petition, title to this hillockadmeasuring 22.50 acres is spelt out ashereunder:
'Petitioner No. 1 herein traces his title to the said extent of 22.50 acres referred above as follows:
First petitioner's father Kuttan alias Sankaran Nair obtained tenancy right (vernacular matter omitted) under a document No. 3328 of 1943 S.R.O., Alathur in respect of an extent of 82.04 acres in various survey numbers, including Sy. No. 714. The entire extent of 92.04 acres of land is now within the catchment area, and except the 22.50 acres (which forms the hillock) the remaining extent have been acquired under various land acquisition proceedings including the land acquisition proceedings leading to Award No. 19 of 1956. As far as properties included in Sy. No. 714 is concerned the award which is relevant is Award No. 19 of 1956 as aforesaid and it deals only with Sy. No. 714. When the 1st petitioner herein pointed out that the extent of 22.50 acres in Sy. No. 714 remains 'unacquired within the catchment area, the attempt of the Revenue Department was to show that the unacquired extent of 22.50 acres of land as per the petitioner's documents is outside the catchment area and that the hillock standing above water level is already acquired. As aforesaid, the total extent of Sy. No. 714 is 297.09 acres and the total extent acquired from that Sy. No. is 190-82 acres. The entire extent of 190.82 acres is also admittedly within the catchment area. The only dispute is whether the actual extent of Sy. No. 714 within the catchment area is only 190.82 acres as assumed by the Land Acquisition Authorities, or whether the extent within the catchment area includes the 22.50 acres also as claimed by the petitioners. A perusal of Award 19 of 1956 will show that there is no reference of the 22.50 acres remaining unsubmerged or any award of compensation for the said item. It is also noteworthy that the title to the extent of 82.04 acres under the 1943 document is also not disputed.'
8. To be precise, the title to the hillock is traced to document of 1943 whereunder the father of petitioner No. 1 purchased ownership rights and the precise and definite averments are to be found in paragraph 3 of the petition in the following manner :
'Under document No. 3328 of 1943, the 1st petitioner's father got title to the following items among other items of properties:
1. R. S. 714/20 - 1.50 acres2. R. S. 714/21 - 4.20 acres3. R. S. 714/24 - 11.62 acres4. R. S. No. 1 - 12.00 acres (R. S. No. 1 is the same as 714 and is included in Sy. No. 714/24). Out of the total extent of 22.28 acres (on adding up the above 4 items), the total extent acquired under Award No. 19 of 1956 is only 7.04 acres in Sy. No. 714/24. Thus there remain a balance of 22.28 acres in respect of which the claim was raised.'
9. It appears from the material placed along with the petition, as annexures, that after more than 20 years after the Award dt. November 1, 1956, and also after the death in 1962 of the father of petitioner No. 1, an application dt. December 10, 1982 is presented by petitioner No. 1 (see Ref. -- Ext.P2) to the Revenue Department which led to the report of the Revenue Inspector, Alathur, sometime in 1988 appearing at Ext. P1, which appears as the basis of the Report dt. October 5, 1990 (Ext.P2) of the District Collector, Palakkad, to the State Government, marking that the hillock admeasuring 22.50 acres is land in Sy. No. 714/24 and is not acquired --has remained to be acquired, consequently recommending initiation of land acquisition proceedings.
10. Apart from the fact that there is complete lull and silence from 1956 to 1982 and thereafter till the report of 1986 culminating in the recommendation of the District Collector, Palakkad, dt. 5-10-1990, it is necessary also to examine details of these two documents, in the light of factual situation that except the hillock, all around is the submerged area of Dam water. The report of the Revenue Inspector (Ext.Pl) refers to the representation dt. 22-11-1961 of the father of petitioner No. 1 received on November 24, 1961 by the Executive Engineer, Mangalam Project, Palghat and the petition dt. March 22, 1962 to the District Collector, Palakkad as well as petitions dt. February 18, 1986 and February 28, 1987 to the District Collector, Palghat.
11. The father of petitioner No. 1 claimed ownership right to the land Sy. Nos. 714/20, 21-B and Sy. No. 1 as per documents Nos. 1170/1933, 1172/1983, 3328/1949, 916/1949 and 1027/1962. Out of these lands, as per report, (1) No land is acquired from Sy. No. 714/ 20 admeasuring 1.72 acres, (2) Out of Sy. No. 714/21B -- 3.52 acres is not acquired, (3) Sy. No. 714/24 admeasures 204.15 acres. Sy. No. 714/24A admeasures 0.34 acres, Sy. No. 714/24B admeasures 1.79 acres, Sy. No. 714/24C admeasures 30.25 acres, Sy. No. 714/24D admeasures 156.72 acres, and Sy. No. 714/24E admeasures 12.79 acres. Out of them 24B and 24D are acquired by Award No. 19 of 1956. The land remaining acquired out of Sy. No. 714/24 comes to 4.51 acres only.
12. The report explains the particulars asfollows:
'The extent of sub-division of Sy. No. 714/ 24 as available in the adangal register and extent arrived at by the Taluk Surveyor on physical verification are as shown below :
Sy.No.
Asper Adangal
Asper physical verification
14/24A
0.34
0.34
24B
1.79
1.79
24C
30.25
27.66
24D
156.72
Notsurveyed
24E
12.79
12.13
The total extent of Sy. No. 714/24 before effecting new sub-divisions was 204.15 acres. Survey No. 714/24 is sub-divided as 714/24A, 24B, 24C, 24D and 24E. The total extent of sub-divisons as measured on ground in subdivisions 24A, 24B, 24C and 24E comes to 41.92. As such the actual extent of subdivisions 24D will come to 162.23 acres, i.e., 204.15 acres minus 41.92 acres, as against 156.72 acres shown in the adangal extract. The variation in extent in respect of Sy. No. 714/24D comes to 5.51, i.e., 162.23 minus 156.72.
It has also to be pointed out that the registered extent of Sy. No. 714/24 was204.15 prior to acquisition whereas the total extent for all the new Sub-divisions created for the acquisitions comes to 201.89 acres only resulting a deficit of 2.26 acres.'
13. Then the report proceeds to re-clubbing of acquired land of 190.82 showing it as Sy. No. 714/10 in the following manner :--
Old Sr No.
& extent
New Sy. No.
Extent
714/10
9.41 )
714/11
5.84 )
714/12
1.10 )
714/13
2.07 )
22
1.38 )
23
2.40 )
714/10
190.82
24D
156.72 )
25
0.26 )
26
10.50 )
27
0.74 )
28
0.40 )
Sy. Nos. 714/23 (2.40), 714/25 (0.26), 714/27 (0.74) and 714/28(0.40) are not seen acquired as per award No.19/56.
Sy. Nos, 714/23 (2.40), 714/25 (0.26), 714/27 (0.74) and 714/28 (0.40) are not seen acquired as per award No. 19/56.
14. Even on the basis of re-clubbing, which is not at all acceptable on re-survey as the area is all submerged as far back as in 1956 itself, a haphazard conclusion is reached in the following manner :--
'The unacquired portion owned by the petitioner as per the document and lying within the catchment area of the MangalamDam but not now submerged under water has also been suveyed by the Taluk Surveyor. This area comes to an extent of 21.18 acres. The Sy. records submitted by the Taluk Surveyor, Alathur is submitted herewith in original along with the report of the Taluk Surveyor.'
In the first instance showing 21.48 acres and then finally an incongruent and irreconcilable conclusion showing the land -- 20.57 acres as unacquired, in the following manner:
'On a whole the extent which are owned by the petitioner in the catchment area of Mangalam Reservoir which are not acquired is assessed as shown below :--
Sl. No.
Sr.No.
ExtentAc.Cent.
Remarks
1.
714/20
1.72
ParaVI of Page 2
2.
714/21D
3.80
ParaI of Page 3
3.
714/24D or 26
4.51
Page3 Para II & III
4.
714/24D
5.51
LastPara of Page 3 &
FirstPara of Page 4
5.
Allthe sub-divisions except sub (division) 10 of Sy. No. 714 measure meatvariation as per T.S.'s report.
5.03
Page5 III Para
Total
20.57 acres
The statement at page 22 annexed to the report is yet more unintelligible.
15. The District Collector, Palakkad, acted on this report and (Ext.P2) order. The following passage from Ext.P2 shows that equivocal observations of the Executive Engineer have been the only fulcrum of the report to the State Government:
'4. The Executive Engineer (Irrigation) Division has remarked that the land mentioned in the reference lies within the reservoir of Mangalam Dam, Usually all the lands included in the reservoir are acquired and there is only very little possibility for leaving a portion of land being unacquired. Other hillocks on the reservoir area are all acquired.'
XX XX XX
5. ............ It is also to be establishedthat the unacquired portion mentioned in the petition is hillock itself. He has further reported that in any way if it is established beyond doubt that the particular hillock were ndt acquired earlier, that area is to be acquired now, as no private land can be allowed in the reservoir of a project.'
It sums up the situation as follows:
'As the Chief Engineer has agreed that if the right of possession of the land has been established, further steps regarding L.A. can be taken and the Tahsildar, Alathur has reported that the unacquired portion is owned by the petitioner, action has to be taken to acquire the remaining portion of the land also.'
16. The then Commissioner and Secretary (Ext.P3) followed suits, and recorded directions to the Chief Engineer.
17. By an order dated June 20, 1991 (Ext.P4), the State Government cancelled earlier order (Ext.P3) making the following factual observations:--
'According to old documents, the land is reported to be not possessed by anybody. He has got Verupattom right over 22.50 acres of land in Sy. No. 1 /1A only. But he managed to get the land in Sy. No. 714/24 executed in his favour. It is also reported by the District Collector that the petitioner has no right at all over the land in Sy. Nos. 714/22, 714/24 and 714/26A of Kizhakkancherry Village as claimed by him. Moreover, the land in Sy. Nos. 714/12,714/21,714/22,714/23,714/24, 714/25 and 714/26 measuring an extent of 23.08 acres was in the possession of his father and the land was acquired as per Award No. 19/56. Hence, the question of acquisition of further extent of 22.50 acres of land does not arise.'
18. In the earlier judgment, this court (Ext.P5), the order of the State Government (Ext.P3) being in violation of the principles of natural justice, directed to consider the representation to be submitted by the petitioners within one month. This court has also passed consequential orders.
19. Ext.PG is the said representation dt. 3-8-1992 and Ext.P7 is the order dt.January 21, 1994 impugned in this petition.
20. To pointed questions by the Court, the learned counsel for the petitioners could not afford answer as to why from 1962, the last representation dt. 22-3-1962 by the father of the petitioner No. 1, there was lull and silence till 19-8-1982 for 20 years, when his son addressed a petition to the Irrigation Minister. This aspect, writ large on the face of the record, assumes importance when the factual matrix shows that except the hillock in question, the entire area is submerged under the Dam water and the hillock is well surrounded by water all around. The proceeding is, as observed above, appears to be wrecked up on the basis of halting and conditional observations of the Chief Engineer (Irrigation), Palakkad, as quoted above in the District Collector's order mechanically adopted consequently by the Secretary to the Government. As stated by the petitioners themselves, in paragraph 7 of the petition, the main question is as to whether the petitioners have title to the land in question; or whether there is any dispute. Further, as to whether what is the total extent of the land in Sy. No. 714 within the catchment area of the Mangalam Dam. In my judgment, even under the ordinary civil law of limitation, these questions are hopelessly barred by limitation, when petitioner No. 1 remained totally inactive for these 20 years and his father also from 1956 up to 1961. It is necessary to note that even according to the learned counsel for the petitioners, petitioner No. 1 was not a minor in 1962, but must have been at least more than 25 years of age then. Other petitioners are only claiming through only petitioner No. 1, and there is no case in this petition other way. This difficulty in exercise of jurisdiction under Article 226 of the Constitution of India, writ large, assumes importance with reference to the peculiar factual matrix. However, this judgment cannot end here for other reasons to be discussed hereafter.
21. On reading the impugned order (Ext. P7) finding it vulnerable on many aspects andreaching conclusion that it would be futile again to direct the Secretary (Irrigation) to consider it, with the help of the representation (Ext. P6) and the counter and by appreciating the submissions of the counsel for the parties, I am left with no other just alternative to consider the question myself. Before doing so it is necessary to observe about the manner in which the matter is considered in Ext. P7. As stated earlier, this Court had specifically directed the Secretary to consider the representation which was also directed to be submitted within a month from the said order dated July 23, 1992, and it is so submitted on August 3, 1992. I am against that there is not even a line to show that it is taken into consideration, It runs into details of 12 pages. A senior Government Pleader Shri M. C. John represented the Department. The following part of paragraph 11 would show how casually his submissions have been referred to. It is as follows :
'Shri M. C. John, the Senior Government Pleader appearing on behalf of the Government said that all the arguments of the petitioner were mala fide and hence he sought to ignore them. He said that the case and claim for the land is not maintainable in view of the fact that as per document No. 273/66 dated I-3-I966 he had alienated to one Velayudhan, Anthoni and others whatever extent of property he had inherited/ obtained from his father as also whatever extent of property he had himself in and around the Mangalam Dam. He had also exhibited a copy of the said documents. He further informed that the petitioner was so fraudulent and mischievous that he sold again and again the property he had once sold and in this manner he had sold nearly 200 acres of land far in excess of the 60 acres of land he actually had.'
The learned Government Pleader also had to accept that when there was a detailed representation (Ext. P6) from the petitioners, there was also such, in the nature of the written submissions on behalf of the Senior Government Pleader filed before the Secretary who heard and decided in the above fashion. None of the written records placedon record as above show any consideration in the impugned order. In fact, after reading the above-quoted paragraph 11 as I had my own experience of the said Senior Government Pleader as regards his performance in Court, he having appeared before me times without number, I was surprised. Known to me for his tenacity and meticulous preparation, reference to his submissions in such a matter has added to my assessment that the Secretary was not serious even though directed by this Court, as above.
22. It is in these circumstances that the State Government had to present a detailed counter, afresh, to this petition. In short, the contentions raised and referred to above in this petition are necessary to be examined on the basis of the representation (Ext. P6) on the one hand and the contents of the counter. No doubt, as stated and urged in the petition itself, the question is as regards the proof of title of the petitioners to the hillock that the father of petitioner No. 1 was the owner of the hillock on the basis of documents referred to above. I have already observed that the question of proof of title of ownership and consequences of claim for compensation is also hopelessly time-barred. However, I would consider the same hereafter, for completion of this judgment in the above circumstances.
23. It is basic that the party to a proceeding succeeds or fails on the strength of weakness of his own title to the legal right. The title to the legal right consists of a bundle of facts asserted and pleaded in its support. Averments of the petition are already summarised, with necessary quotation from the paragraphs of the petition. It has to be seen, as averred in this petition, that the petitioners have to establish that they have title of ownership of the land in question to be able to contend as a consequence that he is entitled to award of compensation in regard thereto. Further, it has to be established that the land -- the hillock -- has not been acquired under any award passed.
24. Firstly, it is the definite case of the petitioners that the land in question is out of Sy. No. 714/24 and further that in regard toSy. No. 714 only Award is No. 19 of 1956 passed on November 1, 1956 as a result of which possession of land is obtained immediately. It is also a factual situation that except the hillock in question, the rest of the land acquired is submerged under water right from 1956 onwards continuously. Therefore, it has to be established, that the hillock in question, as averred, forms part of Sy. No. 714/24 and it is not acquired under the Award.
25. It is also the definite case that the father of petitioner No. 1 purchased the properties under the stated documents of sale. I have already referred to the averments of the petition hereinbefore. Now the relevant aspects of the written representation and the counter need reference and consideration in the context.
A. The following is the contention,at the outset in the representation Ext. P6):--
(i) I submit that an extent of 22.50 acres of land held by my father as tenant (and jenm right purchased by us subsequently) and included in Sy. No. 714/24 was not acquired in the acquisition leading to the passing of Award No. 19/1956. This extent of 22.5 acres in Sy. No. 2714/24 lies contiguous to the lands situated in Sy. No. 714/10, 11, 12, 13, 22 and 26 and those held by Janaki Ammiar, Mathew Joseph, Swayamprabha and others. Whereas the aforesaid lands get submerged, my father's 22.5 acres being a hillock got surrounded by water and thus became inaccessible. Nowhere in the Award there is measurement of this 22.5 acres of land surrounded by water on all the sides.
(ii) Then there is reference to Document No. 3328 of '43 showing extent of 82.04 acres -- showing reference to Documents Nos. 1170 of 1933 and 1172 of 1933 consisting of 8 items as follows:--
Sl.No.
ItemNo. in Document
Sr.No. in Kizhakkancherry village.
Extent
(a) Dry Land
1.
3.
1
2.50Acres
2.
4
762/3
1.40 '
3.
5
1
4.17 '
4.
6
1
1.66 '
5.
8
734
1.61 '
Wet Land
6.
1
742/4
4.71 '
7.
2
742/2
2.13 '
8.
7
742/1
2.55 '
Total
20.73 '
(b) Dry Land
1.
4
714/21
4.20Acres
2.
6
730/1
0.76 '
3.
12
1
0.12 '
Sl.No.
ItemNo. in Document
Sl.No. in Kizhakkancherry village.
Extent
4.
13
714/26
7.14Acres
714/12
0.86 '
5.
14
714/26
1.50 '
6.
15
730/2
0.50 '
7.
17
714/26
2.91 '
714/20
1.50 '
8.
18
738/1
1.20 '
739/2
2.80 '
9.
19
714/27
1.20 '
714/23
2.40 '
714/25
0.20 '
714/22
1.25 '
19.46acres
Wet Land
10.
1
738/1
1.65Acres
730/1
1.33 '
11.
2
730/1
2.83 '
12.
3
738/2
1.10 '
13.
5
730/1
0.53 '
14.
7
730/1
2.20 '
15.
8
730/1
2.72 '
16.
9
730/1
1.66 '
17.
10
730/1
4.17 '
18.
11
730/1
0.77 '
19.
16
738/4
2.42 '
737
0.75 '
738/3
0.98 '
Total
51.72 '
(iii) It is then in paragraph 8 there is the following case represented:'By Award No. 19 of 1956, and certain Awards preceding the said award, the entire extent covered by Document No. 3323 of 1943 was acquired, except an extent of 22.5 acres in respect of which the claim was made by my father for acquisition as aforesaid. This extent of 22.5 acres is situated in Sy. No. 714/24, which has a total extent of 204.15 acres. My father assigned the leasehold right in respect of this 22.5 acres in my favour as per Document No. 1027 of 1962, S.R.O., Alathur.'
Considering the above aspects, even on probabilities, in my judgment, the source to the rights of the father of the petitioner is not acceptable, firstly as the source of ownership title and secondly about the area -- 22.50 acres of the hillock.
B. It is thereafter represented as follows :
'It is pursuant to the petitions filed before the District Collector as aforesaid that the Tahsildar, Alathur, in file No. B2-3650/87 caused an enquiry to be conducted by the Revenue Inspector, Alathur. On enquiry it was found that an extent of 20.57 acres remains unacquired in Sy. No. 714/24 and that the said extent is spread over in Sy. No. 714/20, 714/21B and R.S. No. 1 lying within 714/24. A portion was also found in Sy. No. 714/24.'
v2 It is pleaded that S. No. 1 is within S. No. 714/24. In paragraph 11 it is pleaded that Sy. No. 714/26 in Document No. 1172 of 1933 is a mistake for Sy. No. 24 -- and this is also observed by the District Collector, Palghat. With reference to items Nos. 13, 14 and 17 with reference to Sy. No. 214/26 admeasure 11.55 acres. It is contended that only 7.04 acres are acquired from Sy. No. 714/24 under Award No. 19 of 1956.
C. Then the case is made out with reference to lands covered by Document No. 1172 of 1933 connecting them with Document No. 2040 of 1928 -- S.R.O., Alathur, contending that the Original Sy. No. 445/9 --items Nos. 2, 10, 15, 16 and 17 totallyadmeasured 100.30 acres. The split up is given as follows:
Item No.Sl. No.Extent in acres9.445/9(714/20,714/21, 714/24)42.0010.445/9(714/20, 714/21, 714/24)13.8013.445/9 '23.0016.445/9 '11.5017.445/9 '10.00100.30 Then a submission is made by inference as follows:
'A persual of Award No. 19 of 1956 would disclose the fact that these extents have been acquired from the aforesaid persons. What was left as balance was 62.49 acres. Out of the said extent, an extent of 40.00 acres is situated outside the acquired area in the north, and is seen included in Sy. No. 714/24C (30.25 acres) and in Sy. No. 714/24E (12.79 acres) --total works out to 43.04; and 3.04 acres is taken in by Mangalam River. A perusal of the Adangal extract before acquisition and the reviewed adangal extract after acquisition will disclose this fact. The Adangal extract registers are produced herewith. The balance extent of 22.49 acres is situated within the Mangalam Dam Reservoir and is remaining unacquired, in respect of which the claim was raised by me. The extent included in items 13, 14 and 17 is Document No. 1172 of 1933 referred to in paragraph 11 above, forms part of this unacquired portion of 22.49 acres.' D. Then in the representation there is reference to document No. 229 of 1971 contending that the extent of 22.50 acres is set apart to the shares of Dharmachan and Venugopalan. It is to be noted that thesepersons are not the petitioners in the present petition.
E. In paragraph 14 are the followingaspects:
'It is submitted that shortly after the acquisition of 190.82 acres in the year 1956; a survey was conducted to make it appear that what is acquired within certain boundary marks is only 190.82 acres. The total extent in Sy. No. 714 is 297.09 acres. To make it appear that the area outside the boundary marks fixed in 297.09 acres minus 190.82 acres, certain lands not falling under Sy. No. 714 were included in Sy No. 714. Properties in Sy No. 722, 715, 712 and 713 which are all paddy fields, were shown to be included on part of Sy No. 714. The method adopted was, instead of starting measurement from the point 122 links north of the south-eastern corner of Sy. No. 722 touching the boundary of Sy. No. 714 so as to fix the correct boundary between the acquired and unacquired portion in Sy. No. 714, the Land Acquisition Special Tahsildar (Mangalam Project), the measurement was started at a point 235 links north of the south-eastern point of Sy. No. 722 touching the boundary of Sy. No. 714. This enabled the surveyor to add a large tract of land on the western side of Sy. No. 714. Likewise, paddy fields in Sy. No. 712 and 713 were also clubbed in Sy. No. 714 so as to show that more than 106.77 acres is available in the unacquired portion of Sy No. 714. It is submitted that as a matter of fact, the extent really available in Sy No. 714 as unacquired is only 83.77. The excess extent of 22:50 acres is in the Mangalam Dam catchment area as unacquired in respect of which I have raised the claim. I am producing herewith the survey sketches of Sy. No. 714 of Kizhakkancherry village before and after acquisition to demonstrate this.' It is submitted that re-survey after acquisition cannot be relied upon for any purpose whatsoever. In my judgment this would be so.
The main contention is that Sy. No. 1 was originally Sy. No. 445/9 in 1910 and it became Sy. No. 714/ 24 in survey in 1930. It is not possible to raise this inference on thebasis of the material on record.
26. Thus considering the representation (Ext. P6), although it is strenuously attempted by the petitioners to spell out that the hillock in question admeasures 22.50 acres out of Sy. No. 714/24 as unacquired portion, in myjudgment, from the material on record relied upon, it is not even made probable in the context of the situation, much less the source of title of ownership right attributed to the father of petitioner No. I, after carefully considering all aspects of the representation (Ext. P6). The calculation of areas do not tally and on the basis of approximate nearness to the area, an attempt is made of collating the material in support of the claim.
27. In the counter-statement, on affidavit of the Additional Secretary, Irrigation Department, other side of the picture is placed on record and only the contentions are referred to, the claim of the petitioners has many suspicious facets.
A. Perusal of paragraphs 9 to 13 of the counter show that only land admeasuring 10.30 acres is covered by document No. 3328/43 and no source is established with regard to the land 22.50 acres on the basis thereof.
B. It is also placed on record that even though thefatherof petitioner No. 1 had right only as regards 8.33 acres from Sy. No. 1/1 leasehold rights for 22.50 acres are created, by document No. 1027/62 dated 30-6-1962.
C. In paragraph 16 of the counter, it is placed on record that 15 documents are executed in favour of persons -- list referred to in the counter -- and consequently it is averred as follows:--
' 17. The petitioner has executed some more documents and the genuineness of which is yet to be examined. In his mischievous endeavour he effected transfer and sale of land to the tune of about 200 acres. Therefore, directions have been issued to the Tahsildar, Alathur, to prosecute the petitioner who has transacted land illegally and falsely and cheated the public as well as the Government. Accordingly the Tahsildar, Alathuraddressed the S.I. of Police, Alathur, Mangalam Dam, to take steps for prosecuting the petitioner for fraudulent execution of the above documents. Accordingly, the case has been registered as Crime No. 45/92 under Ss. 408, 420 of I.P.C. on 24-6-1992 and it is still under investigation.' It is then after referring to the details, it is averred:
'The District Collector having convinced that that.the first petitioner's attempt was to do fraud the Government and to make undue and illegal gains, from out of his fabricated documents, appraised the Government the irregularity in issuing Ext. P3 direction. The Government on the basis of the report of the District Collector was pleased to issue Order No.5323/GW3/91/Ir.D. dated 20-6-1991 (Ext. P4) cancelling (Ext. P3), which was challenged in O. P. 8387/ 91. It was the basis of unimpeachable documentary evidences that the Government issued Ext. P4 order and most of those documents are registered documents to which the petitioner himself is a party. Document No. 1319/62 (Dt. No. 15 in Ext. P6) speaks volumes about the falsification of the claims over the land by the petitioner.' D. In fact, the following averments of paragraphs 22 and 23 of the counter succinctly make the position clear:--
'The comparative statement shown in para 2(i) above will show that the father of the petitioner was in possession of Sy. Nos. 714/ 12 and 24 part which were acquired and compensation paid as per item No. (i) under portion III at page 21 and hem No. 11 under portion III at page 24 of the award Sy. Nos. 714/20, 21, 22, 15, 26 were not belonging to his father as per schedule of document No. 3328/43. ' 23. The lands possessed by his father as per document No. 3328/43 in Sy. No. 714 are the following:
Sl. No. 714/120.86 acres232.40 '267.04 'The Tahsildar has reported on physical verification that it is in Sy. No. 718/2.10.30 ' The other lands in Sy. Nos. 714/ 20, 21, 22, 25 and 26 shown in document No. 1171/33 which are not purchased by the father of the first petitioner as per the schedule of the document No. 3328/43 Sy. Nos. 714/21 A, 22, 25 and 26 were already acquired and compensation was paid to the eligible owners and occupants as per item No. 8 under category number 1st page 18 of the award, item No. 3 under category No. III at page 21 of the award, and category No. II at page 20 of the award etc. Hence the petitioner has no right at all to claim any further land from Sy. No. 714 within the catchment area, as claimed by him. As already stated in para 22(c)(i), the extent of the submergible area was determined only after survey and remeasurement by the proper authorities recorded empowered as per Act and Rules and the fact was specifically at page 7 of the award. The petitioner has no right at all for such claim as he has no right over the land as per document No. 3328/43, as the lands covered in Sy. No. 714 in the schedule of the document belonged to his father was acquired as per award No. 19/56 dated 1-11-1956. Hence the question of further enquiry with regard to the total extent actually available in Sy. No. 714/ within the catchment area does arise. But action is to be taken to prosecute the petitioner in having defrauded the Government and public and to make illegal gains out of his fifteen fabricated documents, covering an extent of about 200 acres, even though he has no right at all on the land in Sy. No. 1/1 part mentioned in thedocuments, as stated in para 3(IV) above. As already discussed above, Ext. P1 was prepared and submitted by the Revenue Inspector, Alathur to the Tahsildar, Alathur, with the collusion of the petitioner to help the petitioner and to defraud the Government.'
28. The two rival aspects referred to and discussed above are required to be considered in a situation created by a cryptic and casual order (Ext, P7) under the above circumstances. The claim of the petitioner is not even made out probable. On the contrary, the facts present disputed versions referring delinquent attitude of the Revenue Authorities. In the state of the material on record, it cannot be stated that the petitioners have established title of ownership rights to the subject-matter of the petition. In the state of the situation that right from 1956 the entire land except the hillock in question, it cannot be observed without any element of certainty that the hillock in question forms part of the land Sy. No. 714 / 24 as sought to be seriously contended. The petitioners cannot be said to have formulated any semblance of a right of ownership to the subject-matter of the petition, the hillock in question.
29. This Court in its earlier judgment (Ext. P5) has ruled that the bid amount of Rs. 7,69.482/- could be paid only on establishing the right by the petitioners. No such right is found in their favour as held hereinbefore. Therefore, the above amount is the property of the State Government and be credited to the State Government as such.
30. He tore parting,.a post-script is essential. It is sad that in spite of directions of this Court earlier, in the impugned order, the matter has been given a raw deal in a casual manner of a camp sitting by the Secretary, Irrigation Department. This Court has shown judicial restraint and has expected that at least factual aspects would be considered conscentiously. It is said that written representations on both sides are not even referred to, leaving this Court to a reasonable apprehension (hat asking again to do it is a futile exercise. It is equally sad that the State Government had to disown its own earlier reports and submissions ultimately based on the so-called material collected much there-after when the entire land was submerged as far back as in 1956. Such a situation does not speak well of the morale of the framework of the administration, when submissions are made in a casual manner.
With the above observations, the final result is that the petition stands dismissed and as a consequence the bid amount of Rs. 7,69,482/- is stand credited to the State Government accordingly. The petitioners to suffer their own costs. Order accordingly.