H. H. Srimad Samyaminindra Tirtha Swami v. District Collector, Ernakulam & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942** ## **WP(C).No.26428 OF 2019(C)** ## **PETITIONER:** **H.H.SRIMAD SAMYAMINDRA TIRTHA SWAMI H. H. SRIMAD SAMYAMINDRA TIRTHA SWAMI, MATHADIPATHI OF SREE KASHI MATH SAMSTHAN, VARANASI, REPRESENTED BY THE POWER OF ATTORNEY HOLDER N. GOVINDA SHENOY, S/O. LATE SHRI NARAYANA SHENOY, AGED 62, KANNAMPARAMBIL HOUSE, REPUBLIC ROAD, NORTH PARAVOOR, PIN - 683513. BY ADVS.** **SRI.R.LAKSHMI NARAYAN SMT.R.RANJANIE SRI.M.ASHOK KINI** ## **RESPONDENTS:** **1 THE DISTRICT COLLECTOR ERNAKULAM - 682011.** **2 THE TAHSILDAR (LAND) TALUK OFFICE, NORTH PARAVOOR - 683 513. ADDRESS OF 2ND RESPONDENT IN THE CAUSE TITLE OF THE WP(C) IS SUO MOTU COORECTED AS THE TAHASILDAR(LR) TALUK OFFICE, NORTH PARAVOOR, PIN-683 513, AS PER ORDER DATED 23-02-2021 IN WP(C)26428/2019. 3 THE VILLAGE OFFICER EZHIKKARA - 683513 4 K. K. MURALEEDHARAN ALAVAMBARA HOUSE, PALACE ROAD, KANNANKULANGARA, NORTH PARAVOOR, PIN - 683513. R1-3 BY GOVERNMENT PLEADER R4 BY ADV. SRI.PUSHPARAJAN KODOTH R4 BY ADV. SRI.K.JAYESH MOHANKUMAR R4 BY ADV. SMT.VANDANA MENON SMT A.C.VIDHYA - GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)No.26428 of 2019 2 ## **JUDGMENT** The issue raised in this writ petition relates to the property having an extent of 18.21 Ares (45 Cents) comprised in Sy.No.42/2 of Ezhikkara Village in Paravoor Taluk, covered by Thandapper No.B135. The petitioner, who is claiming ownership and possession over the property, has filed Ext.P7 application dated 06.03.2019 before the 2[nd] respondent Tahasildar (LR), seeking permission to remit land tax. On the other hand, the 4[th] respondent, who is claiming the ownership and possession over the very same property, has filed Ext.P11 representation dated 21.01.2019 before the 2[nd] respondent for effecting mutation and to accept land tax. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] and 3[rd] respondents to hear the petitioner or his authorised representative before taking any further proceedings on the basis of Ext.P11 application or any requests of like nature, submitted by the 4[th] respondent for mutation of the property having an extent of 18.21 Ares (45 cents) comprised in Sy.No.42/2 of Ezhikara Village, bearing WP(C)No.26428 of 2019 3 Thandapper No.B135. The petitioner has also sought for a declaration that respondents 2 and 3 are not competent to entertain Ext.P11 application, as it is beyond their statutory powers to decide the question of alleged oral tenancy raised by the 4[th] respondent, without relegating the 4[th] respondent to have recourse to the provisions of the Kerala Land Reforms Act through appropriate forum and on compliance of mandatory procedures prescribed therein; and a writ of mandamus commanding respondents 2 and 3 to permit the petitioner to pay land tax of the property having an extent of 18.21 Ares (45 cents) comprised in Sy.No.42/2 of Ezhikara Village. 2. On 04.10.2019, when this writ petition came up for admission, this Court issued notice before admission to the respondents. The learned Government Pleader took notice for respondents 1 to 3. Urgent notice by speed post was ordered to the 4[th] respondent. This Court granted an interim order staying further proceedings pursuant to Ext.P11 application made by the 4[th] respondent, before the 2[nd] respondent, pending disposal of this writ petition. WP(C)No.26428 of 2019 4 3. The 4[th] respondent has filed a counter affidavit, opposing the reliefs sought for in this writ petition. The petitioner has also filed a reply affidavit. 4. A statement has been filed on behalf of the 2[nd] respondent, wherein it is stated that the petitioner is the Thandapper holder of Thandapper No.B135 in Ezhikkara Village, and there are certain disputes between the petitioner and the 4[th] respondent in respect of the said property. 5. Heard the learned counsel for the petitioner, the learned Government Pleader for respondents 1 to 3 and also the learned counsel for the 4[th] respondent. 6. The learned counsel for the petitioner and also the learned counsel for the 4[th] respondent have raised various legal and factual contentions against consideration of Ext.P7 application made by the petitioner and Ext.P11 application made by the 4[th] respondent, which are now pending consideration before the 2[nd] respondent Tahasildar (LR). The learned counsel for the petitioner and also the learned counsel for the 4[th] respondent would submit that the petitioner and the 4[th] WP(C)No.26428 of 2019 5 respondent shall raise appropriate legal and factual contentions before the 2[nd] respondent Tahasildar (LR), including the question of maintainability of Exts.P7 and P11 applications. 7. Having considered the submissions made by the learned counsel on both sides, this writ petition is dispose of, leaving open the legal and factual contentions raised by the petitioner and the 4[th] despondent, by directing the 2[nd] respondent Tahasildar (LR) to consider and take appropriate decision on Ext.P7 application made by the petitioner and Ext.P11 application made by the 4[th] respondent, in respect of the property having an extent of 18.21 Ares (45 Cents) comprised in Sy.No.42/2 of Ezhikkara Village in Paravoor Taluk, after affording the petitioner and the 4[th] respondent an opportunity of being heard, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. 8. The petitioner and the 4[th] respondent shall submit their written submissions before the 1[st] respondent, raising appropriate legal and factual contentions, which shall be adverted WP(C)No.26428 of 2019 6 to by the 2[nd] respondent, while taking a decision. 9. In **State of U.P. v. Harish Chandra [(1996) 9 SCC** **309]** the Apex Court held that no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. 10. Therefore, in terms of the direction contained in this judgment, the 2[nd] respondent shall take an appropriate decision in the matter, strictly in accordance with law, taking note of the relevant statutory provisions and also the law on the point. No order as to cost. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** WP(C)No.26428 of 2019 7 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE PHOTOCOPY OF THE THANDAPPER ACCOUNT OF THE PROPERTY, DRAWN IN FAVOUR OF THE PETITIONER.** **EXHIBIT P2 THE PHOTOCOPY OF THE LETTER DATED 28.12.2018. EXHIBIT P3 THE PHOTOCOPY OF COMMUNICATION DATED 10.1.2019.** **EXHIBIT P4 THE PHOTOCOPY OF THE CHALAN DATED 19.1.2019.** **EXHIBIT P5 THE PHOTOCOPY OF COMMUNICATION DATED 19.1.2019. EXHIBIT P6 THE PHOTOCOPY OF COMMUNICATION DATED 31.1.2019. EXHIBIT P7 THE PHOTOCOPY OF THE REQUEST LETTER DATED 6.3.2019, ISSUED BY THE POWER OF ATTORNEY OF THE PETITIONER. EXHIBIT P8 THE PHOTOCOPY OF THE LETTER DATED 28.12.2018 ISSUED TO THE SECOND RESPONDENT. EXHIBIT P9 THE PHOTOCOPY OF THE REVENUE LIST DATED 16.5.2018. EXHIBIT P10 THE PHOTOCOPY OF THE NOTICE DATED 10.12.2018 ISSUED BY THE TALUK SURVEYOR, NORTH PARAVOOR. EXHIBIT P11 THE PHOTOCOPY OF REQUEST LETTER DATED 21.1.2019. EXHIBIT P12 THE TRUE COPY OF THE POWER OF ATTORNEY DATED 19.2.2019, EXECUTED BY THE PETITIONER.** WP(C)No.26428 of 2019 8 ## **4TH RESPONDENT'S EXHIBIT:** **EXHIBIT R4(A) TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 09.02.1961 ISSUED BY THE VILLAGE OFFICER, EZHIKKARA.** **TRUE COPY** **P.A. TO JUDGE**