KURIAN PAPPACHAN v. STATE OF KERALA and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 10TH DAY OF JANUARY 2019 / 20TH POUSHA, 1940** ## **WP(C).No. 32141 of 2018** ## **PETITIONER:** **KURIAN PAPPACHAN, NJALIYATH VEEDU, TAMBORE P.O, MUKKANNOOR, ERNAKULAM DISTRICT** **BY ADVS.SRI.K.NARAYANAN & SRI.DENNY DEVASSY** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001** - **2 TAHASILDAR, ALUVA TALUK OFFICE, ALUVA, PIN-683101.** - **3 ADDITIONAL TAHASILDAR, ALUVA TALUK OFFICE, ALUVA, PIN-683101.** - **4 VILLAGE OFFICER, MOOKKANNUR VILLAGE OFFICE, PIN-683577.** - **5 ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, THIRUVANANTHAPURAM, PIN-695001.** - **6 THE COMMISSIONER FOR LAND REVENUE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** - **7 REVENUE DIVISIONAL OFFICER, RDO, FORT KOCHI, ERNAKULAM.** **ADDITIONAL RESPONDENTS 6 AND 7 ARE SUO MOTU IMPLEADED AS PER THE ORDER DATED 10.1.2019 IN WPC.NO.32141/2018.** ## **SRI.SAIGI JACOB PALATTY,SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ---------------------------------- ## W.P.(C)No. 32141 of 2018 ---------------------------------Dated this the 10[th] day of January, 2019 ## J U D G M E N T The prayers in the above Writ Petition (Civil) are as follows: “ - _i. Set aside Ext.P5 order in question or this Hon'ble Court may be pleased to pass appropriate directions in the form of Writ of Certiorari or Mandamus for reconsideration of the entire matters by allowing this Writ Petition; and_ - _ii. Grant such other and further reliefs as this Hon'ble Court deems fit and proper in the circumstances of this case. ”_ 2. Heard Sri.K.Narayanan, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents 1-7. 3. The relevant facts of the case are more particularly delineated in Ext.P-6 petition dated 19.5.2018 from which the impugned Ext.P-5 order dated 24.7.2018 has arisen. Shorn of all the details, the core of the relevant factual aspects are as follows. The petitioner had submitted an application dated 4.5.2016 (Annexure 2 in Ext.P-6) on the requisite form for assignment of 45 cents of landed property before the 2[nd] respondent Tahsildar, Aluva. The 2[nd] respondent as per the order dated 10.8.2016 W.P.(C).No.32141/2018 **==> picture [19 x 9] intentionally omitted <==** (Annexure 2 in Ext.P-6) had rejected the said application for assignment. Impugning the said rejection order dated 10.8.2016 issued by the 2[nd] respondent Tahsildar, the petitioner had preferred a writ petition (civil) as WP(C).No.16543/2017 before this Court. When the said WP(C).No.16543/2017 had come up for consideration before this Court, it was submitted on behalf of the official respondents that in a case of like this, the petitioner has specific remedy to challenge the impugned rejection order issued by the 2[nd] respondent Tahsidlar, by filing statutory appeal before the 6[th] respondent Commissioner for Land Revenue, in terms of the provisions contained in Rule 21 of the Kerala Land Assignment Rules, 1964. Recording the abovesaid submission of the official respondents, this Court gave liberty to the petitioner to pursue and prosecute such appellate remedy. Based on the submissions made on behalf of the official respondents, the petitioner had thereupon submitted the petition before the 6[th] respondent Commissioner for Land Revenue but styling the petition as a “Revision Petition” dated 19.5.2018 under Rule 21(9) of the Kerala Land Assignment W.P.(C).No.32141/2018 **==> picture [19 x 9] intentionally omitted <==** Rules 1964, in this endeavour to impugn the said rejection order dated 10.8.2016 issued by the 2[nd] respondent Tahsildar. The 6[th] respondent Commissioner for Land Revenue had entertained the said petition on merits and thereafter passed order dated 10.4.2018 dismissing the said Revision Petition. (Annexure 4 in Ext.P-6) . According to the petitioner, he had wrongly styled the said petition as a Revision Petition and that what was intended to be presumed was a “Appeal” before the 6[th] respondent Commissioner for Land Revenue. Being aggrieved by the said rejection order dated 10.4.2018 issued by the 6[th] respondent Commissioner for Land Revenue thereby confirming the said impugned order dated 10.8.2016 issued by the 2[nd] respondent Tahsildar, the petitioner had preferred the petition styled as a Revision Petition before the 1[st] respondent State Government contending that since what was actually presumed was an appellate remedy, a revision would lie before the 1[st] respondent State Government. The 1[st] respondent State Government has now held that the revision before the Government is not maintainable W.P.(C).No.32141/2018 **==> picture [18 x 9] intentionally omitted <==** in terms of the provisions contained in the Kerala Land Assignment Rules 1964, framed under Sec.1 of the Kerala Land Assignment Act 1960, in view of dictum on that behalf already laid down by the Division Bench of this Court in _**Karimtharuvi Tea Estates Ltd v. State of Kerala**_ dated 20.10.1998 in WA.No.610 of 1993 reported in _**1999 (1) KLT 33 .**_ Thus the said so called Revision Petition has been dismissed by the the 1[st] respondent State Government as not maintainable as per the impugned Ext.P-5 Government letter No.397/A3/2018/RD dated 24.7.2018. The impugned Ext.P-5 Government letter dated 24.7.2018 reads as follows. _“ In inviting attention to the reference cited I am to inform you that the judgment of the Hon.High Court dated 20.10.1998 in Karintharuvi Vs State of Kerala Rule 21(9) of the KLA Rules 1964 has been nullified. Since the Revision Petition is filed under Rule 21(9) of the KLA rules 1964 the same cannot be considered at Government level. ”_ It is this order at Ext.P-5 that is under challenge in this writ petition. 4. Sri.K.Narayanan, learned counsel appearing for the petitioner would submit that the petitioner has actually availed only an appellate remedy as against the impugned original order W.P.(C).No.32141/2018 ..6.. passed by the 2[nd] respondent Tahsildar and that the mandatory provisions contained in Rule 21 of the Kerala Land Assignment Rules 1964 clearly envisages a two tier remedy by way of appeal and revision after the impugned original order is passed by the original authority concerned. Therefore the petitioner is now placed in a piquant situation whereby his statutory right to prosecute his remedy which is guaranteed and conferred by the provisions on the Kerala Land Assignment Rules 1964, has been deprived. In this regard, the learned counsel appearing for the petitioner specifically point out that as the original impugned order dated 10.8.2016 has been issued by the 2[nd] respondent Tahsildar, the statutory remedy which was actually to be invoked by the petitioner was an appeal before the 7[th] respondent RDO and not before any higher authority . On that basis it is submitted by the petitioner that the petition/appeal filed before the 6[th] respondent Commissioner for Land Revenue which resulted in the order dated 10.4.2018 issued by the 6[th] respondent Commissioner was not maintainable in terms of the provisions contained in said Rules W.P.(C).No.32141/2018 **==> picture [18 x 9] intentionally omitted <==** and therefore the order dated 10.4.2018 passed by the 6[th] respondent Commissioner is null and void and non-est as the presumed appeal was one without jurisdiction. In that regard, it is submitted by the petitioner's counsel that it is only because of the submission made by the official respondents at the time of disposal of the abovesaid WP(C).No.16543/2017 on 19.5.2017 that the petitioner will have to file an appeal before the Commissioner for Land Revenue that the petitioner had so done, and that the mistake in that regard had been contributed by both sides. This Court may declare the legal position that in a case of this nature the appeal was not maintainable before the 6[th] respondent Commissioner, and therefore the order dated 10.4.2018 issued by the 6[th] respondent Commissioner is null and void and to give liberty to the petitioner to file a statutory appeal before the 7[th] respondent RDO in terms of Rule 21(1) of the abovesaid Rules so as to impugn the abovesaid rejection order dated 10.8.2016 issued by the 2[nd] respondent Tahsildar. 5. To deal with this contention, it will be profitable to W.P.(C).No.32141/2018 ..8.. ## refer to the provisions contained in Sec.7 of the Kerala land Assignment Act, 1960 which reads as follows. _“ 7. Power to make rules-(1) The Government may make rules-_ _(a) prescribing the manner in which assignment of land may be made; whether by public auction or otherwise;_ _(b)prescribing the qualifications of persons to whom assignment of lands may be made;_ (c) _prescribing the order of priority for the assignment of land whether by public auction or otherwise;_ _(d)prescribing the authority by which such assignment may be made;_ _(e)prescribing the procedure to be followed in assigning the land;_ _(f)providing for the publication of notifications and service of notices;_ _(e)prescribing the procedure to be followed in the enquiry regarding claims preferred;_ _(f) prescribing the rates at which land may be assigned and tree growths may be valued, and the mode of recovery of the amounts due;_ _(i)providing for the protection of royalties on the land assigned;_ _(j)prescribing the restrictions, limitations and conditions subject to which an assignment can be made in any case or class of cases;_ _(k)providing for appeals from the orders of any authority competent to assign any land;_ _(l)prescribing the time within which appeals may be preferred;_ _(m)regulating the powers of the appellate authority and the procedure to be followed by such authority;_ _(n)providing for revision by the Board of Revenue of any order passed by the prescribed authority, and prescribing the time within which such revisional power may be exercised;_ _(o)regulating the issue of Pattah or other title deed evidencing the assignment;_ _(p)prescribing forms where forms are necessary; and_ _(q)generally for carrying out the purposes of this Act._ _(2) All rules made under this Act shall be published in the Gazette and thereupon they shall have the force of law._ _(3) All rules made under this Act shall be laid for not less than_ W.P.(C).No.32141/2018 ..9.. _fourteen days before the Legislative Assembly, as soon as possible after they are made, and shall be subject to such modifications as the Legislative Assembly may make during the season in which they are so laid or the session immediately following. ”_ 6. In a case where a revision was already entertained and decided by the Commissioner for Land Revenue, an aggrieved party had preferred further revision before the State Government in terms of Rule 21(9) of the Kerala Land Assignment Rules, 1964. It was the said revisional order passed by the respondent State Government was impugned in that case which led to the judgment of the Division Bench in the case in _**Karimtharuvi Tea Estates Ltd v. State of Kerala**_ dated 20.10.1998 in WA.No.610 of 1993 reported in _**1999 (1) KLT 33 .**_ The Division Bench of this Court held that, unlike many other enactments which confer power to the Rule making authority to make Rules, which are often conferred with powers in the wide ranging nature containing the clause, without prejudice to the generality of the Rule making power, Sec.7 of the abovesaid Act clearly says in Sub Section 1 that Government may make Rules either prospectively or retrospectively on the specifically enumerated items given thereunder as Clauses (a) to W.P.(C).No.32141/2018 **==> picture [24 x 7] intentionally omitted <==** (q) and that in that manner has permitted the subordinate legislative organ only to make Rules on those specifically enumerated matters envisaged as Clauses (a) to (q) of Sec.7(1) and that the said provisions are clearly exhaustive and not merely illustrative and that therefore, since clause (n) of Sec.7(1) envisage only providing for revision before the Board of Revenue of any order passed by the prescribed authority and prescribed time limit within its such revisional power areas exercised etc, the provision contained in Sub Rule 9 of Rule 21 of the Kerala Land Assignment Rules, 1964 conferring a further revisional power on the State Government even though specific power of permission is also conferred on the Board of Revenue/Commissioner for Land Revenue, was held to be ultra vires and that it was held that Rule 21(9) conferring further revision powers on State Government is ultra vires the provisions of the abovesaid Act and hence is unenforceable etc. Therefore it goes without saying that once a remedy conferred under Rule 21 is duly exhausted before the Commissioner for Land Revenue/Board of Revenue, then there is W.P.(C).No.32141/2018 ..11.. no question of the party seeking further revision before the State Government and therefore the view taken by the respondent State Government in the impugned Ext.P-5 order cannot be faulted. 7. However, going by the provisions contained in the Rules, Sri.K.Narayanan, learned counsel appearing for the petitioner is certainly right in submitting that the 6[th] respondent Commissioner for Land Revenue did not have any jurisdiction to consider the challenge directly as against the impugned rejection order dated 10.8.2016 issued by the 2[nd] respondent Tahsildar, in as much as where the original rejection order is issued by an officer of the rank of Tahsildar, then the remedy of the aggrieved party is to file an appeal before the 7[th] respondent RDO. Rule 21 (1) clearly mandates and stipulates that an appeal shall lie to the RDO against an order passed by the Tahsildar or any other officer not above the rank of Tahsildar authorised by the Government under Rule 23(a), to the District Collector against an order passed by the RDO, or an officer of the rank of RDO authorised by the Government under Rule 23(a) and to the Board of Revenue against an order passed by W.P.(C).No.32141/2018 **==> picture [24 x 7] intentionally omitted <==** the District Collector. Therefore it is clear like the blue sky that where the original rejection order is issued by an officer of the rank of 2[nd] respondent Tahsildar, the remedy of such an aggrieved party is to challenge such order is to file a statutory appeal before the officer of the rank of 7[th] respondent RDO and not make a quantum jump so as to enjoy a “leap frog” remedy by approaching the 6[th] respondent Commissioner for Land Revenue. It is also to be borne in mind that as between an officer of the rank of Tahsildar and the Commissioner for Land Revenue other intermediate authorities are also there in the hierarchy, viz, an officer in the rank of RDO, an officer in the rank of District Collector. It appears that an erroneous submission was made on behalf of the official respondents at the time of disposal of WP(C).No.16543/2017 thereby it was submitted by them that the remedy of the petitioner was to file an appeal before the Commissioner of Land Revenue which led to this state of affairs. 8. The statute clearly mandates and confers a minimum two tier remedy to an aggrieved person if he wants to challenge a W.P.(C).No.32141/2018 ..13.. rejection order issued by the prescribed authority under the Kerala Land Assignment Rules, 1964. Such remedy cannot be taken away merely because of the mistake committed by both parties. That apart the so called appeal preferred before the 6[th] respondent Commissioner was not maintainable at all and therefore the consequential rejection order dated 10.4.2018 issued by that officer rejecting the said appeal/petition is totally without jurisdiction and therefore it is null and void and non-est. 9. Therefore in the light of these aspects, it is ordered that the order dated 10.4.2018 issued by the Commissioner for Land Revenue was without jurisdiction in as much as appeal itself was not maintainable with that authority in the facts of this case. Accordingly it is ordered that the said order dated 10.4.2018 issued by the 6[th] respondent Commissioner for Land Revenue will stand set aside and rescinded. Consequently it is ordered that the remedy of the petitioner to challenge the original rejection order dated 10.8.2016 issued by the 2[nd] respondent Tahsildar is to prefer a statutory appeal before the 7[th] respondent RDO. W.P.(C).No.32141/2018 ..14.. 10. Though Sub Section 3 of Rule 21 prescribes a time period of 30 days from the date of receipt of impugned order to file the appeal/revision as the case may be it is to be noted in the instant case, that the petitioner was constrained to approach the wrong forum only because of the abovesaid errors noted herein committed by both sides. Therefore it is also held that the petitioner files such an appeal atleast within a period of 3 weeks from the date notified for receiving the certified copy of the judgment, then the said appeal so preferred before the 7[th] respondent RDO should be treated as one within time. For the sake of procedural completeness, the petitioner may also file a formal application to condone the delay explaining all these aspects and the 7[th] respondent will condone the delay so as to entertain said appeal on merits. 11. Accordingly it is ordered that in case the petitioner files a statutory appeal to impugne the original rejection order dated 10.8.2016 issued by the 2[nd] respondent Tahsildar, within 3 weeks from the date notified for receiving a certified copy of this W.P.(C).No.32141/2018 **==> picture [24 x 9] intentionally omitted <==** judgment, then the 7[th] respondent will entertain the appeal on merits and after granting reasonable opportunity of being heard to the petitioner will dispose of said appeal without much delay preferably within a period of 3 months from the date of receipt of said appeal along with certified copy of judgment. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C).No.32141/2018 ..16.. ## **APPENDIX OF WP(C) 32141/2018** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THEM BASIC TAX RECEIPT DATED 29.10.2013 ISSUED BY THE VILLAGE OFFICER, MOOKKANNOOR VILLAGE OFFICE.** **EXHIBIT P2 TRUE COPY OF THE SURVEY MAP. EXHIBIT P3 TRUE COPY OF THE REPLY MADE BY THE PETITIONER DATED NIL BEFORE THE 2ND RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 26.2.2016 IN WPC.NO,7115/2016 PASSED BY THIS HON'BLE COURT.** **EXHIBIT P5 TRUE COPY OF THE IMPUGNED ORDER DATED 24.7.2018 PASSED BY THE 5TH RESPONDENT.**