Jacob P.A. and Jessy Jacob v. Commissioner for Land Revenue, Public Office Building, Museum, Trivandrum and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** ## **WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023 / 21ST POUSHA, 1944** ## **WP(C) NO. 12283 OF 2010** ## **PETITIONERS:** 1 JACOB.P.A., S/O.ABRAHAM, PALLIKACHIRA HOUSE, MUKKOTTUTHARA, KANJIRAPPLLY TALUK, KOTTAYAM. 2 JESSY JACOB, W/O.JACOB P.A. PALLIKACHIRA HOUSE, MUKKOTTUTHARA, KANJIRAPPLLY TALUK, KOTTAYAM. BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH ## **RESPONDENTS:** - 1 THE COMMISSIONER FOR LAND REVENUE PUBLIC OFFICE BUILDING, MUSEUM,TRIVANDRUM. - 2 THE DISTRICT COLLECTOR, KOTTAYAM. 3 THE DISTRICT COLLECTOR, PATHANAMTHITTA. 4 THE REVENUE DIVISIONAL OFFICER, KOTTAYAM. - 5 THE TAHSILDAR, KANJIRAPPALLY. 6 ERUMELY GRAMA PANCHAYATH, REPRESENTED BY THE SECRETARY,ERUMELY, KOTTAYAM. - 7 THE VECHUCHIRA GRAMA PANCHAYATH REPRESENTED BY THE SECRETARY, VECHUCHIRA, PATHANAMTHITTA. - 8 THE CIRCLE INSPECTOR OF POLICE, VADASSERYKARA. - 9 ADDL. R9. PRAKASH THOMAS PULICKAN, AGED 31 YEARS, S/O. GEORGE THOMAS, PULICKAL HOUSE, MANIPUZHA, MUKKUTTUTHARA, ERUMELY, KOTTAYAM. (ADDITIONAL R9 IS IMPLEADED AS PER ORDER DATED WP(C) NO. 12283 OF 2010 **==> picture [7 x 9] intentionally omitted <==** 13/07/2010 IN IA 9348/2010) BY ADVS. SRI. K.S.ARUN KUMAR SRI.MOHAN JACOB GEORGE SRI.M.NARENDRA KUMAR SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN SRI.M.J.THOMAS SRI.RAJEE P MATHEWS SMT.AMRUTHA K P SMT.AMRUTHA P S SMT.BINDU MOHAN SRI.VIJAY SANKAR V.H. SMT.SRUTHY UNNIKRISHNAN SRI.CHRISTINE MATHEW SRI.RENJITH.T.R, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 12283 OF 2010 3 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C).No. 12283 of 2010** **---------------------------------------------Dated this the 11[th] day of January, 2023** # **JUDGMENT** The above Writ Petition is filed with the following prayers: _“(i) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to EXP7, P9 and P11 and quash the same as illegal._ _(ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 2 and 3 to conduct a joint verification by reference to the survey and resurvey records and to identify, lie, location and the nature of right of the property and thereafter deal with the matter in accordance with law._ _(iii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st respondent to constitute competent officials of high rank and profile in the Revenue Department to reconsider the whole issue based on the reports to be submitted by the said expert officials after due enquiry and investigation._ _(iv) Grant such other reliefs as this Hon'ble_ WP(C) NO. 12283 OF 2010 4 _Court may deem fit and proper in the circumstances of the case.”[SIC]_ 2. Petitioners were issued with a patta in respect of 9.16 ares of land in Re-Survey No.5/7-2 of Erumely South Village. Ext.P1 is the patta. According to the petitioners, the patta was issued after enquiry and verification by the Tahsildar, Kanjirappally. It is the case of the petitioners that the aforesaid 23 cents as well as another 50 cents of land are lying contiguously in different districts. According to the petitioners, earlier both the above lands were situated in Quilon District and when the new Pathanamthitta District was formed, the 23 cents of land belongs to the petitioners is situated within the Kottayam Revenue District under Erumely South Village of Kanjirappally Taluk. Likewise the 50 cents referred to above is situated in the revenue District of Pathanamthitta in Kollamula Village of Ranni Taluk. It is submitted that the aforesaid 50 cents of land was originally meant for the establishment of a police outpost WP(C) NO. 12283 OF 2010 5 at Mukkoottuthara. But the land so meant could not be utilized for the said purpose and it was lying vacant without any use, is the contention. In such circumstances, the Superintendent of Police, Pathanamthitta as per the orders of the Revenue Authorities put the land in auction on lease basis. According to the petitioners, for the last two decades, the aforesaid 50 cents of land in Pathanamthitta was put to auction by the Police Department of Pathanamthitta and 50 cents of land is lying contiguous with that of the petitioners land (23 cents). The petitioners used to get the said land in auction. It is the case of the petitioners that, while so, one John Kulapuzhathazha, attempted to make an illegal construction by encroaching the Thodu puramboku. While doing so, he excavated a portion of the petitioners' patta land in the opposite side of the Thodu whereby the lateral support of the petitioners property had lost, is the submission. The petitioners therefore, filed various petitions before the authorities. WP(C) NO. 12283 OF 2010 **==> picture [7 x 10] intentionally omitted <==** As a retaliation to the above petitions filed by the petitioners, it is submitted that the above mentioned person influenced the president and secretary of the Grama Panchayath. Thereafter, at the instance of the president of the Grama Panchayath, submitted petitions before the District Collector as well as the Chief Minister of Kerala alleging that the petitioners obtained patta for 23 cents in respect of property which belongs to the police department by misrepresentation. It is stated in the writ petition that, the petitioners have obtained pattayam in respect of property which was leased out and hence the patta is liable to be cancelled. It is also stated in the writ petition that the District Collector, Kottayam by his order dated 27.02.2007 directed the Tahsildar to cancel the patta. Based on the above direction, the Tahsildar cacelled the pattayam without proper notice to the petitioners, is the contention raised in this writ petition. Ext.P7 is the order. Against Ext.P7, the petitioners filed an appeal before the Revenue WP(C) NO. 12283 OF 2010 7 Divisional Officer, Kottayam as evident by Ext.P8. The same was dismissed as per Ext.P9. Then the petitioners filed a revision before the Land Revenue Commissioner as evident by Ext.P10. The Land Revenue Commissioner also dismissed the same as evident by Ext.P11. Aggrieved by Exts.P7, P9 and P11, this writ petition is filed. 3. Heard counsel appearing for the petitioners, the learned Government Pleader and also the counsel appearing for the 9[th] respondent. 4. The main contention raised by the petitioners is that there is violation of the first Proviso to Rule 8(3) of the Kerala Land Assignment Rules, 1964. According to the petitioners, the patta can be cancelled only after giving the party or parties affected a reasonable opportunity of being heard. Counsel appearing for the petitioners takes me through Ext.P12 notice issued by the original authority in which there is nothing mentioned about the proposal to cancel patta. It is also WP(C) NO. 12283 OF 2010 8 submitted that Ext.P12 is not referred in Ext.P7 also. The counsel appearing for the petitioners also submitted that there is a dispute about the identity of the property. The counsel also takes me through Ext.P10 revision petition filed before the Land Revenue Commissioner and submitted that Ext.P11 is not a speaking order and the revisional authority has not considered any of the contentions before dismissing the revision. Counsel for the petitioners also relied on the judgment of the Apex Court in _**Biecco Lawrie Limited v. State of West Bengal & Anr. [AIR 2010 SC 142].**_ 5. The learned Government Pleader on the other hand supported the impugned orders and submitted that, as evident by Ext.P12, notice is issued to the petitioners before cancelling the patta. 6. Counsel for the 9[th] respondent also supported Exts.P7, P9 and P11 and submitted that there is nothing to interfere with those orders. 7. This Court considered the contentions of the WP(C) NO. 12283 OF 2010 9 petitioners and the Government Pleader. From a perusal of the first Proviso to Rule 8(3), it is clear that, before a patta is cancelled, a reasonable opportunity of being heard should be given to the affected parties. Ext.P12 is the notice issued by the 5[th] respondent. It will be better to extract the contents in Ext.P12: _“_ മുക്കൂട്ടുതറയയിലലെ പപപോലെലീസസ് ഔടസ് പപപോസസ് ഉൾലപ്പെട സ്ഥലെതയിനസ് പുളയിക്കചയിറ പജേക്കബസ്/ലജേസയി പജേക്കബസ് എന ൾ ൻപമൽ തപോങ പടയയം സമപോദയിച്ചുലവെന പരപോതയിയയി വെപോദയം പകൾ ൻ ക്കുനതയിനപോയയി ടയി വെസ്തുവെയി പമലുള്ള ഉടമസ്ഥപോവെകപോശയം ലതളയിയയിക്കുന പരഖകളുമപോയയി 10/5/2007-ാപോയം തലീയതയി 10.30 AMനസ് തപോങൾ കപോഞയിരപ്പെള്ളയി തപോലൂക്കസ് ഓഫലീസയിൽ ഹപോജേരപോപകണ്ടതപോണസ്. _”_ 8. The Apex Court considered the principles of natural justice in _**Biecco Lawrie Limited**_ 's case ( _supra_ ) in detail. The relevant portion of the above judgment is extracted hereunder: _“13. It is fundamental to fair procedure that both sides should be heard - audi alteram partem, i.e., hear the other side and it is often considered that it is broad_ WP(C) NO. 12283 OF 2010 10 _enough to include the rule against bias since a fair hearing must be an unbiased hearing. One of the essential ingredients of fair hearing is that a person should be served with a proper notice, i.e., a person has a right to notice. Notice should be clear and precise so as to give the other party adequate information of the case he has to meet and make an effective defence. Denial of notice and opportunity to respond result in making the administrative decision as vitiated. The adequacy of notice is a relative term and must be decided with reference to each case. But generally a notice to be adequate must contain the following:_ _(a) time, place and nature of hearing;_ - _(b) legal authority under which hearing is to be held;_ _(c) statement of specific charges which a person has to meet._ 9. Whether Ext.P12 notice is a sufficient notice in the light of the principles laid down by the Apex Court is a point to be decided. A perusal of Exts.P9 and P11 will not show that this point is specifically considered by the authorities in a proper manner. I am surprised to see Ext.P11 order passed by the Land Revenue Commissioner. After extracting the brief history, the contention raised by revision petitioner and the reply WP(C) NO. 12283 OF 2010 11 furnished by the Revenue Divisional Officer, Kottayam, the Land Revenue Commissioner dismissed the revision with the following observation: _“Patta was obtained by misrepresentation of facts. At the time of assignment the assignee was in possession of 1.30 ares of land. The annual income of the assignee was above Rs.12,000/- at the time of assignment._ _The matter came up for hearing on 18.02.2010. The counsel for the petitioner, the petitioner Sri.P.A.Jacob; Smt.Pushpavally, Junior Superintendent Taluk Office Kanjirappally, Sri.Pradeep Kumar, Sub Inspector of Police, Veechuchira, Sri. Ajith S., UDC, Erumely Grama Panchayat and Sri.Prabash Thomas Ward member Ward XV, Erumely Grama Panchayat were present. After hearing both sides and perusing the connected record it is found that the petitioner had obtained patta by misrepresentation of acts. The land belongs to Home Department and the department had not issued NOC for assigning this land at any point of time."_ 10. I am of the considered opinion that this is not a speaking order considering the contentions raised by the petitioners. The petitioners raised several contentions in the revision. The question of identity of WP(C) NO. 12283 OF 2010 12 the property and the question of violation of first proviso to Rule 8(3) are raised by the petitioners. The participation of the appellate authority in the original decision making is also raised by the petitioners. These contentions were not considered by the Land Revenue Commissioner in Ext.P11. I am of the considered opinion that Ext.P11 is to be set aside and the Land Revenue Commissioner has to reconsider the matter in the light of the observations in this judgment. Therefore, this writ petition is allowed in the following manner: i. Ext.P11 is set aside. ii. The 1[st] respondent is directed to reconsider Ext.P10 after giving an opportunity of hearing to the petitioners, 9[th] respondent and other affected parties. iii. All the contentions raised by the petitioners in this writ petition are left open. iv. The 1[st] respondent will pass appropriate WP(C) NO. 12283 OF 2010 **==> picture [13 x 10] intentionally omitted <==** orders as directed above, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this judgment. Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM WP(C) NO. 12283 OF 2010 14 ## **APPENDIX OF WP(C) 12283/2010** |PETITIONERS'|EXHIBITS| |---|---| |EXHIBIT P1|TRUE COPY OF THE PATTA VIDE LA| ||NO.142/99 ISSUED BY THE ADDITIONAL| ||TAHSILDAR,<br>KANJIRAPPALLY<br>ON| ||12/11/1999.| |EXHIBIT P2|TRUE COPY OF THE APPLICATION FILED BY| ||THE 1ST PETITIONER.| |EXHIBIT P3|TRUE COPY OF THE NOTICE DATED| ||01/07/1998.| |EXHIBIT P4|TRUE COPY OF THE CERTIFICATE DATED| ||24/09/1999.| |EXHIBIT P5|TRUE COPY OF THE RECEIPT DATED| ||05/05/2008.| |EXHIBIT P6|TRUE COPY OF THE AUCTION NOTICE DATED| ||31/03/2007.| |EXHIBIT P7|TRUE COPY OF THE ORDER DATED| ||23/05/2007 OF DISTRICT COLLECTOR,| ||KOTTAYAM.| |EXHIBIT P8|TRUE COPY OF THE APPEAL MEMORANDUM| ||BEFORE<br>THE<br>REVENUE<br>DIVISIONAL| ||OFFICER, KOTTAYAM.| |EXHIBIT P9|TRUE COPY OF THE ORDER OF RDO,| ||KOTTAYAM DATED 04/03/2008.| |EXHIBIT P10|TRUE COPY OF THE REVISION PETITION| ||AND STAY PETITION BEFORE 1ST| ||RESPONDENT.| |EXHIBIT P11|TRUE COPY OF THE ORDER DATED| ||27/02/2010 OF COMMISSIONER OF LAND| ||REVENUE.| |EXHIBIT P12|TRUE COPY OF THE NOTICE DATED| ||08/04/2007<br>FROM<br>TALUK<br>OFFICE,| ||KANJIRAPPALLY.| WP(C) NO. 12283 OF 2010 15 RESPONDENT EXHIBITS |EXHIBIT R9|TRUE COPY OF THE JUDGMENT DATED| |---|---| ||29/06/2009 PASSED BY THIS HON'BLE| ||COURT IN WPC NO.17993/2009.| |EXHIBIT R8(A)|TRUE COPY OF THE CERTIFICATE DATED| ||03/06/2011 ISSUED BY THE VILLAGE| ||OFFICER, ERUMELY SOUTH.| |EXHIBIT R8(B)|TRUE COPY OF THE GOVERNMENT ORDER NO.| ||GO(RT)206/70/HOME DATED 04/02/1970.| |EXHIBIT R8(C)|TRUE COPY OF THE CERTIFICATE NO.| ||2436/2011 ISSUED FROM THE VILLAGE| ||OFFICE, KOLLAMULA DATED 11/07/2011.| |EXHIBIT R8(D)|TRUE COPY OF REPORT OF TALUK| ||SURVEYOR, RANNI DATED 10/05/2010.| |EXHIBIT R8(E)|TRUE COPY OF AUCTION PROCEEDINGS| ||DATED 16/05/1995.| |EXHIBIT R8(F)|TRUE COPY OF AUCTION PROCEEDINGS| ||DATED 16/06/1996.| |EXHIBIT R8(G)|TRUE COPY OF AUCTION PROCEEDINGS| ||DATED 07/05/2001.| |EXHIBIT R8(H)|TRUE COPY OF AUCTION PROCEEDINGS| ||DATED 24/02/2004.| |EXHIBIT R8(I)|TRUE COPY OF AUCTION PROCEEDINGS| ||DATED 09/05/2006.| |EXHIBIT R9(A)|TRUE COPY OF THE ORDER DATED| ||04/02/1970 ISSUED BY THE HOME| ||DEPARTMENT.| |EXHIBIT R9(B)|TRUE COPY OF THE AGREEMENT EXECUTED| ||BY THE SOCIETY WITH THE QUILON| ||DISTRICT POLICE SUPERINTENDENT,| |EXHIBIT R9(B)(1)|READABLE COPY OF THE EXT.R9(B).| |EXHIBIT R9(C)|TRUE COPY OF THE LETTER DATED| ||31/03/2004 EVIDENCING PAYMENT OF| WP(C) NO. 12283 OF 2010 16 RS.17392/-. EXHIBIT R9(D) TRUE COPY OF THE LETTER DATED 16/04/2004, ISSUED BY THE DISTRICT SUPERINTENDENT OF POLICE, PATHANAMTHITTA. EXHIBIT R9(E) TRUE COPY OF THE SKETCH SHOWING THE ABOVE 50 CENTS. EXHIBIT R9(F) TRUE COPY OF THE PROCEEDINGS OF THE CIRCLE INSPECTOR OF POLICE, VADASSERIKARA. EXHIBIT R9(G) TRUE COPY OF THE AUCTION PROCEEDINGS IN RESPECT OF THE PERIOD 01/04/1996 TO 31/03/1997. EXHIBIT R9(H) TRUE COPY OF THE AUCTION PROCEEDINGS FOR THE PERIOD 01/04/1997 TO 31/03/1998. EXHIBIT R9(I) TRUE COPY OF THE AUCTION PROCEEDINGS FOR THE PERIOD FROM 01/04/1998 TO 31/03/1999. EXHIBIT R9(J) TRUE COPY OF THE ENQUIRY REPORT OF THE VIGILANCE DEPUTY COLLECTOR, SOUTH ZONE. //TRUE COPY// PA TO JUDGE