Biyyumma, Mangalassery Moideenkutty and Mangalassery Mohamad alias Kunhikooya v. Abdul Razak and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY, THE 23RD DAY OF OCTOBER 2013/1ST KARTHIKA, 1935** **WA.No. 1552 of 2013 () IN WP(C).21469/2013 --------------------------------------------** **AGAINST THE JUDGMENT DATED 12-9-2013 IN WP(C) 21469/2013 of HIGH COURT OF KERALA.** **APPELLANT(S)/3[rd] PARTY :** **----------------------** **1. BIYYUMMA, W/O.AHAMADKUTTY, MANGALASSERY HOUSE, AKKODU, KARUMARAKADU P.O, VAZHAKADU VILLAGE, ERNADU TALUK, MALAPPURAM DISTRICT.** **2. MANGALASSERY MOIDEENKUTTY, S/O.AHAMADKUTTY, AKODE, KARUMARAKADU P.O., VAZHAKADU VILLAGE, ERNAD TALUK,** **MALAPPURAM DISTRICT.** **3. MANGALASSERY MOHAMAD ALIAS KUNHIKOYA, S/O.ALAVI, AKODE, KARUMARAKADU P.O., VAZHAKADU VILLAGE.** **BY ADVS.SRI.P.S.RAMACHANDRAN PILLAI SMT.P.M.SWAYAM PRABHA SRI.B.M.SHA.** ## **RESPONDENT(S)/PETITIONERS & RESPONDENTS IN WPC 21469/13:** **--------------------------------------------------------** **1. ABDUL RAZAK, AGED 41 YEARS, S/O.MOIDEEN HAJI, KALATHODIKOYIL HOUSE, KARUMARAKKODU P.O, MALAPPURAM DISTRICT PIN 673 640.** **2. MRS. SABIRA, AGED 34 YEARS, W/O.ABDUL NAZAR, 2/615 F, VAZHAKKODU GRAMA PANCHAYATH, KARUMARAKKADU P.O, MALAPPURAM DISTRICT PIN 673 640.** **3. THE SUB COLLECTOR, OFFICE OF THE SUB COLLECTOR,** **PERINTHALMANNA 679 322.** **4. THE VILLAGE OFFICER, VAZHAKKADU, ACKODE P.O., MALAPPURAM DISTRICT PIN 673 640.** **R1 & R2 BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE. R3 & R4 BY GOVERNMENT PLEADER SRI.SYAMKUMAR.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.No. 1552 of 2013 () IN WP(C).21469/2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :-** |**ANNEXURE A1 **|**:**|**COPY OF THE FORWARDING LETTER DATED 17-01-2011 OF**| |---|---|---| |||**THE DISTRICT COLLECTOR, MALAPPURAM SENDING THE**| |||**COMPLAINT TO THE R.D.O., PERINTHALMANNA.**| |**ANNEXURE A2 **|**:**|**TRUE COPY OF THE COMPLAINT DATED 22-2-2011 SENT BY**| |||**THE 2ND APPELLANT TO THE SECRETARY, VAZHAKAD**| |||**PANCHAYATH.**| |**ANNEXURE A3 **|**:**|**TRUE COPY OF THE COMPLAINT DATED 29-3-2011 BY THE**| |||**APPELLANT SUBMITTED TO THE R.D.O., PERINTHALMANNA.**| |**ANNEXURE A4 **|**:**|**TRUE COPY OF THE NOTICE DATED 16-5-2011 RECEIVED BY**| |||**THE APPELLANTS FROM THE R.D.O., PERINTHALMANNA.**| |**ANNEXURE A5 **|**:**|**TRUE COPY OF THE NOTICE DATED 21-2-2012 ISSUED BY**| |||**THE R.D.O., PERINTHALMANNA TO THE APPELLANTS.**| |**ANNEXURE A6 **|**:**|**TRUE COPY OF THE PETITION UNDER THE RIGHT TO**| |||**INFORMATION ACT DATED 31-7-2012 FILED BY THE**| |||**APPELLANTS BEFORE THE R.D.O., PERINTHALMANNA.**| |**ANNEXURE A7 **|**:**|**TRUE COPY OF THE LETTER DATED 8-8-2012 FROM THE**| |||**OFFICE OF THE R.D.O., PERINTHALMANNA TO THE 2ND**| |||**APPELLANT.**| |**ANNEXURE A8 **|**:**|**TRUE COPY OF THE LETTER SENT BY THE R.D.O.,**| |||**PERINTHALMANNA TO THE VILLAGE OFFICER, VAZHAKAD,**| |||**DATED 26-4-2013.**| |**ANNEXURE A9 **|**:**|**TRUE COPY OF the COMPLAINT FILED BY THE 3RD**| |||**APPELLANT BEFORE THE VAZHAKKAD POLICE.**| **RESPONDENTS ANNEXURES : NIL. //TRUE COPY//** **P.A TO JUDGE** **amk** ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** ## **------------------------------------------------** ## **W.A No.1552 OF 2013** **------------------------------------------------Dated this the 23[rd] day of October, 2013.** ## **J U D G M E N T** ## **K.M.Joseph, J.** The appellants were not parties in the writ petition. They filed this appeal on the basis of leave granted by this court. The writ petitioners have approached this Court to quash Exts.P5 and P6. 2. Exts.P5 and P6 are the orders purported to be passed under the Land Utilisation Order. 3. The case of the writ petitioners in brief is as follows :- The 1[st] petitioner and the husband of the 2[nd] petitioner are the absolute owners in possession of 34.84 cents of land each in Re.Sy. No.90/9 of Vazhakkad Village. Though the said properties are shown as Nilam in Revenue Records. It was converted into garden land and planted with coconut saplings and arecanut saplings between 19601965. Exhibit P7 report of the Village Officer categorically reports that the property was cultivated with coconut more than 50 years ago. In Exhibit P8 data bank also the properties are classified as coconut plantation. The husband of the 2[nd] petitioner obtained ## **W.A No.1552 OF 2013 2** Exhibit P1 building permit dated 13-04-2010 and completed construction of a residential building in his property which has been assigned building No.G the local authority. The 1[st] petitioner obtained Exhibit P4 building permit and the construction of his residential building is in progress while so the petitioners were issued with Exhibits P5 and P6 orders, calling upon them to remove sand from their property and to cultivate it with paddy or other food crops. Exhibits P5 and P6 are illegal, arbitrary and violative of the principles of natural justice. 4. Among the contentions, which the writ petitioners took, we noticed the contention that there is violation of principles of natural justice. 5. The appellants are persons who claim that they are affected parties. They are persons who have filed the complaints which ultimately led to the passing of the impugned orders and it is without making them parties, the writ petition was filed and disposed of, runs the complaint. 6. The learned Single Judge took note of some documents, ## **W.A No.1552 OF 2013 3** produced by the writ petitioner, including Exts.P7 and P9 and thereafter entered the following findings :- _“Considering the facts and circumstances a revealed from the pleading and materials on record, this Court finds that the property is not liable to be branded as 'paddy land' or 'wet land'. The matter has to be considered under the relevant provisions of the Kerala Land Utilization Order, so as to enable the petitioners to make use of the property for some other purposes.”_ 7. Apparently, the learned Single Judge sets aside Exts.P5 and P6 and set the petitioners at liberty to file proper application before the first respondent for granting necessary sanction under Clause 6 of the Kerala Land Utilization Order for making use of the property for other use, within two weeks from the date of receipt of a copy of the judgment. The petitioners were to substantiate their contentions regarding the reclaimed land before the first respondent during the course of hearing. The first respondent was to re-consider the matter in the light of the observations made by the Division ## **W.A No.1552 OF 2013 4** Bench of this Court in _**Praveen v. Land Revenue Commissioner (2010(2) K.L.T 617)**_ . It was to be done within two months from the date of receipt of a copy of the judgment. 8. We heard the learned counsel for the appellants, learned Senior Counsel for the writ petitioner and the learned Government Pleader. The learned counsel for the appellants would submit that actually the complaint of the writ petitioners about the violation of principles of natural justice is without foundation. In fact, Annexure 4 notice was issued proposing to hear the writ petitioners under the Land Utilization Order. It is despite the same, that the writ petitioners approached this court making the allegation that they were not heard. It is the case of the appellants that actually the land was nilam and there is no basis for the learned Single Judge to enter a finding that it is not a paddy land. 9. The learned Senior counsel for the respondents, on the other hand, would seek to support the judgment of the learned Single Judge on the basis that there was materials which warranted the finding that the lands were not paddy land. It is further more pointed ## **W.A No.1552 OF 2013 5** out that actually the notice is related not to the Land Utilization Order. 10. It is submitted that in fact the writ petitioners, after the judgment, applied to the first respondent for sanction under Clause 6 of the Land Utilization Order and also sought for reclassification of the land. It is in fact their case that they have proceeded with the construction of the residential building. We notice that this is without getting any sanction from the first respondent. 11. The learned Government Pleader would in fact point out that the learned Single Judge ought not to have found that the property is not liable to be branded as 'paddy land' or 'wet land' and thereafter directed that the matter has to be considered under the relevant provisions of the Kerala Land Utilization Order, after rendering a finding and if at all it should have been remitted back. 12. This is a case where it cannot be said that the writ petitioners were not given notice or the principles of natural justice were actually violated as stated in the ground raised in the writ petition. No doubt, learned Senior counsel for the appellants would **W.A No.1552 OF 2013 6** submit that this ground was not pressed. Whatever that be, we do not approve of the conduct of a writ applicant in making absolutely incorrect allegations as is evident from Annexure A4. Secondly, we notice that this is a matter where the learned Single Judge ought not have entered a finding and if at all the writ petition was to be allowed in any manner it should have been by directing the matter to be redone. In this case we cannot ignore the fact that there is suppression of the fact that the writ petitioners were given an opportunity of being heard not merely by issuance of Annexure 5 but Annexure 4 which relates to the Land Utilization Order. We also take into account that there are some materials relied on by the writ petitioners. We feel that the interest of justice requires that the matter must be redone. But it cannot be an unconditional order having regard to the conduct of the writ petitioners. Accordingly, we set aside the judgment of the learned Single Judge. We dispose of the writ appeal as follows :- 1. If the writ petitioners pay a sum of `10,000/-(Rupees Ten Thousand ## **W.A No.1552 OF 2013 7** Only) to the first respondent by tendering the amount with the Advocate General Office within a period of one week from today and further sum of `10,000/-(Rupees Ten Thousand Only) to the learned counsel for the appellants also within a period of one week and produce memo, Exts.P5 and P6 will stand quashed only for the purpose of reconsidering the matter with an opportunity of hearing to the appellants and also the writ petitioners. 2. If the cost as ordered is paid the writ petitioners and the appellants are to be present before the third respondent on 05-11-2013 at 11.00 A.M. The third respondent will proceed to hear the parties and take a decision in accordance with law. 3. No further construction will be carried out by the writ petitioners and **W.A No.1552 OF 2013 8** it can be done only on the basis of the decision to be taken by the 3[rd] respondent. We make it clear that the third respondent will consider the matter untrammeled by any observation contained in the judgment of the learned Single Judge. Sd/- **K.M.JOSEPH, JUDGE.** Sd/- **A.HARIPRASAD, JUDGE.** amk //True copy// P.A to Judge