Kasturi Bai and K.V. Abraham v. Commissioner of Land Revenue, Kerala State Electricity Board, Special Tahsildar (LA), Devikulam, and Revenue Divisional Officer, Devikulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 20TH DAY OF JUNE 2017/30TH JYAISHTA, 1939** **WP(C).No. 21641 of 2009 (A) ----------------------------** ## **PETITIONER(S):** **-------------** **1. SMT.KASTHURI BAI,W/O KOVIL PILLAI, MERRY COTTAGE, ANACHALKKARA, CHITHIRAPURAM P.O. IDUKKI DISTRICT.** **2. K.V.ABRAHAM, AGED 57 YEARS,** - **S/O.VARKEY, KANJIRATHAMKUZHIYIL, ANACHALKKARA, CHITHIRAPURAM P.O., IDUKKI DISTRICT.** **BY ADVS.SRI.T.RAMPRASAD UNNI SRI.C.R.REKHESH SHARMA** **RESPONDENT(S):** - **--------------** **1. THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION,** **THIRUVANANTHAPURAM.** **2. THE KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM., REPRESENTED BY ITS CHIEF ENGINEER.** **3. THE SPECIAL TAHSILDAR (LA) DEVIKULAM.** **4. THE REVENUE DIVISIONAL OFFICER, DEVIKULAM.** **R1,R3,R4 BY GOVERNMENT PLEADER SRI RAVIKRISHNAN R2 BY ADVS. SRI.SUDHEER GANESH,SC SRI.P.A.AHAMED, SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WPC 21641 OF 2009:** ## **------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **--------------------** - **P1: TRUE COPY OF THE ORDER NO K.DIS 3365/97/B5(1) DATED 12/10/2000 ISSUED BY THE REVENUE DIVISIONAL OFFICER, DEVIKULAM.** - **P2: TRUE COPY OF THE REVISION PETITION DATED 30/6/2009 FILED BY THE K.S.E.B BEFORE R1.** - **P3: TRUE COPY OF THE APPLICATION FOR CONDONATION OF DELAY ALONG WITH THE AFFIDAVIT FILED ALONG WITH THE REVISION PETITION.** - **P4: TRUE COPY OF THE PROCEEDINGS DATED 14/7/2009 OF THE LAND REVENUE COMMISSIONER.** ## **RESPONDENT(S)' EXHIBITS** - **-----------------------** - **R2(A) PHOTOCOPY OF THE PROCEEDINGS DATED 21/1/2009 OF THE DISTRICT COLLECTOR, IDUKKI.** - **R2(B) PHOTOCOPY OF THE LETTER NO G2 57687/05 DATED 17/11/2008 OF THE DEPUTY DIRECTOR OF SURVEY. IDUKKI.** ## **/TRUE COPY/** **P.S.TO JUDGE** **K.V.** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 21641 of 2009 (A) -----------------------------------------Dated: 20[th] June, 2017 ## **J U D G M E N T** The petitioners are aggrieved with Ext.P4 order passed by the Commissioner of Land Revenue in a revision filed by the Kerala State Electricity Board (KSEB), the respondent herein. By the impugned order, the Commissioner of Land Revenue condoned the delay and admitted the revision to the files of the Revisional Authority. The petitioners' contention is that the Land Revenue Commissioner is not the appropriate authority to consider a challenge to Ext.P1 proceedings and that there is no provision for condonation of delay. 2. The brief facts are that the petitioners were assigned 1.33 acres of land in Survey No.600/Pt. of Vellathooval Village as per L.A. Case No.129/85 of the Special Tahsildar (LA), Devikulam. While the petitioners were enjoying the said land, after 12 years in January, 1997, ## **W.P.(C) No. 21641/2009** **-2-** the Special Deputy Collector (LA), KSEB, Thiruvananthapuram, represented to the District Collector that the area assigned comes within the catchment area of the Sengulam Dam and belongs to the KSEB. The District Collector, Idukki, as per letter no.C2-3238/97 dated 06.02.1997, directed the Special Tahsildar to cancel the pattayam issued illegally and report the fact. The Special Tahsildar issued notice to the assignee ,i.e., the petitioners herein and after receiving objections, canceled the assignment for reasons of mis-representation of facts, mistake of facts and procedural irregularities as also having exceeded the powers of the assigning authority. 3. The petitioners filed an appeal before the Revenue Divisional Officer (RDO), Devikulam, as is provided under Rule 21 of the Kerala Land Assignment Rules, 1964 ('Rules' for short). The appeal stood allowed as per Ext.P1. The present revision before the Land Revenue Commissioner (Ext.P2) and the delay condonation petition (Ext.P3) was ## **W.P.(C) No. 21641/2009** **-3-** taken to the files after condoning the delay; by the impugned order. 4. The learned Counsel for the petitioners relies on **Rermal Padmanabhan v. Tribunal for Local Self Government Institutions, Thiruvananthapuram and another – 2015 (3) KHC 406 (DB)** to contend that since there is no power conferred on the authority to condone the delay, the authority could not have entertained the application filed beyond the limitation period. The proviso to sub-rule (8) of Rule 21 of the Rules, is specifically referred to. There can be no dispute to the said proposition going by the fact that the authority has not been conferred with any power to condone delay. 5. The learned Standing Counsel appearing for the KSEB, however, submits that the KSEB was not even heard when orders were passed at Ext.P1. The KSEB, on knowledge of such an order being passed, approached the appellate authority, the District Collector, as provided ## **W.P.(C) No. 21641/2009** **-4-** under Rule 21 of the Rules. The District Collector, however, rejected the appeal on grounds of lack of jurisdiction as evidenced by Ext.R2(a). It was hence, an application was filed before the Land Revenue Commissioner for revision. The limitation starts only from the date of knowledge of the order and any bona fide proceedings taken and the period expended for the same has to be condoned under Section 14 of the Limitation Act, 1963, is the contention raised by the respondent KSEB. 6. Looking at Rule 21 of the Rules, any order passed by the Tahsildar or other Officer, not above the rank of Tahsildar, who is authorised by the Government under Rule 23A, has to be challenged in an appeal before the Revenue Divisional Officer (RDO) and an order passed by the RDO is appealable before the District Collector. The Board of Revenue is also competent to sit in revision over an order passed by the Tahsildar or any Officer authorised by the Government under Rule 23A of the Rules or the RDO or the ## **W.P.(C) No. 21641/2009** **-5-** District Collector. The proceedings initiated by the respondent KSEB before the Land Revenue Commissioner, admittedly, is a revision against the order of the RDO, which is maintainable. 7. Ext.R2(a) finds that an appeal filed before the District Collector is not maintainable. The said finding is not sustainable, especially since the RDO's order is specifically made appealable to the District Collector under Rule 21 of the Rules. However, the KSEB has not thought it fit to challenge the said order of the District Collector. The KSEB availed the provision of revision and approached the Land Revenue Commissioner with an application, as seen from Exts.P2 and P3. By that time, almost nine years had expired from the date of the impugned order. The limitation, as provided in the proviso to sub Rule (8) of Rule 21 of the Rules, is two years from the date of such decision/order. There cannot be a contention raised of a bona fide proceeding initiated before the wrong forum, ## **W.P.(C) No. 21641/2009** **-6-** since the appeal filed before the District Collector was maintainable. The KSEB failed to challenge the order rejecting the appeal for the sole ground of lack of jurisdiction. 8. The submission of the learned Counsel for the respondent that the period of limitation would commence only from the date of knowledge, has to be accepted. Even then, looking at the affidavit filed at Ext.P3, the deponent has specifically contended that 'KSE Board came to know about the order only in 2003' and immediately filed appeal before the District Collector, Idukki, which was finally disposed of by proceedings dated 21.01.2009. The appeal filed before the District Collector, as evidenced from Ext.R2 (a), was supported by a delay condonation petition dated 26.11.2008 [read as item no.4 in Ext.R2(a)]. This substantially proves the fact that the KSEB had the knowledge of the impugned order in 2003. The KSEB filed an appeal before the District Collector, who rejected it for **W.P.(C) No. 21641/2009** **-7-** reason of the District Collector being not conferred with jurisdiction. The KSEB failed to challenge the said order. The KSEB then approached the Revisional Authority under sub-rule (8) of Rule 21 of the Rules, which had to be within two years itself. The KSEB cannot even contend that the appeal filed before the District Collector was within that period. In such circumstance, this Court does not find any reason to sustain Ext.P4. The revision filed before the Land Revenue Commissioner, as a consequence, would be rejected. The writ petition is allowed. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 20/6/17