Kadeeja v. Revenue Divisional Officer, Ottapalam, Palakkad and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 18TH DAY OF AUGUST 2016/27TH SRAVANA, 1938** **WP(C).No. 5233 of 2008 (W)** **---------------------------** **PETITIONER(S): -------------** **KADEEJA, W/O.MOHAMMED, RESIDING AT MALIYEKKAL HOUSE, P.O.KOTTOPPADAM,, THRITHALA (VIA), PALAKKAD 679 534.** **BY ADVS. SRI.JIBU P THOMAS SRI.P.S.APPU SRI.T.C.SURESH MENON** **RESPONDENT(S):** **--------------** **1. THE REVENUE DIVISIONAL OFFICER, OTTAPALAM, PALAKKAD.** **2. THE TAHSILDAR, OTTAPPALAM, PALAKKAD.** **3. THE VILLAGE OFFICER, CHALISSERY, PALAKKAD.** **4. THE CHALLISSERY GRAMA PANCHAYATH, REPRESENTED BY ITS SPECIAL GRADE SECRETARY,, CHALISSERY P.O., PALAKKAD 679 536.** **5. KUNJUKUTTAN, PRESIDENT, CHALISSERY GRAMA PANCHAYATH, CHALISSERY P.O., PALAKKAD. 6. THE STATE OF KERALA REPRESENTED BY THE LAND REVENUE COMMISSIONER (ADDL R6 IS SUO MOTU IMPLEADED AS PER JUDGMENT DT 18.8.2016)** **R4 & 5 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R4 & 5 BY ADV. SMT.N.SANTHA R4 & 5 BY ADV. SRI.S.A.ANAND R5 BY ADV. SRI.K.A.BALAN R5 BY ADV. SRI.PETER JOSE CHRISTO R5 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R1,2 & 3 BY ADV. SAIGY JOSEPH PALATTY, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) 5233 OF 2008** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **P1-TRUE COPY OF ORDER GRANTING PERMISSION ISSUED BY THE FIRST RESPONDENT DT 2.1.2016** **P2-TRUE COPY OF REPRESENTATION SUBMITTED BY THE FIFTH RESPONDENT TO THE HON'BLE CHIEF MINISTER WITH COPIES TO RESPONDENTS 1 AND 2 DT 20.9.2007.** **P3-TRUE COPY OF INSPECTION REPORT SUBMITTED BY THE THIRD RESPONDENT DT 4.12.2007** **P4-TRUE COPY OF INTIMATION ISSUED BY THE FOURTH RESPONDENT TO THE PETITIONER DT 22.1.2008** **P5-TRUE COPY OF OBJECTION SUBMITTED BY THE PETITIONER DT 29.1.2008** **P6-TRUE COPY OF JUDGMENT IN WPC 36407/2009 ON THE FILE OF THIS HON'BLE COURT DT 11.1.2010.** ## **RESPONDENTS EXHIBITS** ## **NIL** **TRUE COPY** **SKS** **P.A TO JUDGE** ## **K.VINOD CHANDRAN, J.** .................................................. **W.P. (C ) No. 5233 of 2008** ................................................... **Dated this the 18[th] day of August, 2016** ## **JUDGMENT** The writ petition is concerned with the review attempted to Ext.R1 order passed under Kerala Land Utilisation Order, 1967 (for brevity KLU) as seen from Ext.P4. The petitioner is said to have made an application for conversion of 5 cents property in Sy.No.4/3A of Chalisserry Village, Perumannoor Desom, for construction of a residential building. The specific contention on which such an application was made, as is revealed from Ext.P1 order is that neither petitioner nor her husband had any other property and hence requires conversion of paddy land for the purpose of constructing a residential building. The permission was granted to so convert 5 cents on specific conditions as seen from Ext.P1. 2 W.P. (C ) No. 5233 of 2008 2. Subsequently, a complaint is said to have been filed by the 5[th] respondent, who was the then President of the Panchayath, as per Ext.P2. In Ext.P2, it was contended that the petitioner and her husband had other properties and that they were residing in a pucca building constructed in two acres coming within the jurisdiction of Kottapadath Panchayath. It was also contended that in violation of the conditions what was constructed in the property is a commercial building and quarters for the purpose of renting out. 3. On such complaint, it is alleged that the Revenue Divisional Officer had issued directions by phone, based on which the earlier order was sought to be reviewed. The petitioner relies on a decision reported in **Patel Narshi Thakershi and Ors vs. Pradyumansinghji Arjunsinghji (1971 KHC 713)** to contend that no power of review having been conferred 3 ## W.P. (C ) No. 5233 of 2008 by statute and no appeal or revision having been taken up as provided in the KLU necessarily the order at Ext.P1 has to be declared as having achieved finality. 4. The learned Government Pleader relies on **2015 (2) KLT 783 (Planters Forum vs. State of Kerala)** to draw a distinction between a quasi-judicial order and an administrative order to contend that the order passed by the RDO as per the KLU is an administrative one, which is possible of review even though there is no specific power. Further it is pointed out that there is a clear fraud played on the authority since the petitioner has suppressed the other holdings possessed by the petitioner and her husband and also the fact that the petitioner was residing elsewhere. The fifth respondent in its counter affidavit reiterates the contention raised in Ext.P2. 4 W.P. (C ) No. 5233 of 2008 5. On a reading of **Planters Forum,** this Court is not inclined to agree with the learned Government Pleader that the order passed is an administrative one. The legal principles regulating such distinction was culled out from the decision of the Hon'ble Supreme Court in **Indian National Congress vs. Institute of Social Welfare ((2002) 5 SCC 685)** the extract from which was as hereunder: “24. The legal principles laying down when an act of a statutory authority would be a quasijudicial act, which emerge from the aforesaid decisions are these: Where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis between two contending parties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi-judicial. 5 W.P. (C ) No. 5233 of 2008 25.Applying the aforesaid principle, we are of the view that the presence of a lis or contest between the contending parties before a statutory authority, in the absence of any other attributes of a quasi-judicial authority is sufficient to hold that such a statutory authority is quasi-judicial authority. However, in the absence of a lis before a statutory authority, the authority would be quasi-judicial authority if it is required to act judicially”. XXX XXX XXX 27. What distinguishes an administrative act from a quasi-judicial act is, in the case of quasi-judicial functions under the relevant law the statutory authority is required to act judicially. In other words, where law requires that an authority before arriving at a decision must make an enquiry, such a requirement of law makes the a authority quasi-judicial authority. 6. In the present case obviously when an application was filed under the KLU, there was no lis 6 W.P. (C ) No. 5233 of 2008 between two contesting parties and the contest was between the authority and subject. However, it cannot be ignored that the statutory authority conferred with the power to grant conversion under the KLU, was required to act judicially under the statute after conducting an inquiry and that postulates a judicial consideration which makes the function a quasi-judicial one. In such circumstances, definitely there could be no review attempted of the order. 7. The next contention raised by the learned Government Pleader based again on **Indian National Congress** is that, if fraud is detected even a quasijudicial order can be reviewed despite there being no specific power conferred under the Act wherein the Supreme Court noticed the exception in the following manner: 34. Coming to the first exception, it is almost settled law that fraud vitiates any act or order 7 W.P. (C ) No. 5233 of 2008 passed by any quasi-judicial authority even if no power of review is conferred upon it. In fact, fraud vitiates all actions. In Smith v. East Elloe Rural Distt. Council it was stated that the effect of fraud would normally be to vitiate all acts and orders. In Indian Bank vs. Satyam Fibres (India) (P) Ltd, it was held that a power to cancel-recall an order which has been obtained by forgery or fraud applies not only to courts of law, but also to statutory tribunals which do not have power of review. Thus, fraud or forgery practiced by a political party while obtaining a registration, if comes to the notice of the Election Commission, it is open to the Commission to deregister such a political party. 8. In the present case there is an allegation of fraud in so far as the petitioner having suppressed material facts before the authority for obtaining conversion of the land on the plea that neither she nor her husband had any other property on which a 8 W.P. (C ) No. 5233 of 2008 residential building could be erected. In that circumstances it is to be noted that there is power of revision conferred under the KLU by clause (14) on the State Government to suo motu call for the records and proceedings under the KLU and pass such orders thereon. Under such circumstances, the State of Kerala represented by the Land Revenue Commissioner is suo motu impleaded in the above case as additional sixth respondent (Registry to carry out such impleadment). 9. The additional sixth respondent is directed to call for a report from the Tahsildar, the second respondent herein and to issue notices to the respondents 4 and 5 and consider Ext.P1, on the basis of the allegations raised by the respondents 4 and 5 and examine them as to whether any fraud was perpetrated and if not, whether the construction made 9 W.P. (C ) No. 5233 of 2008 violates any of the express conditions of sanction. The first respondent shall conduct an enquiry as to whether the conversion made of the property was in accordance with Ext.P1 and in accordance with the conditions stipulated in Ext.P1, failing which appropriate action shall be initiated. The writ petition is disposed of as above. **K.VINOD CHANDRAN** sks/25.8.2016 Judge