Major Babu Thomas (Retired) v. The State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **THURSDAY, THE 24TH DAY OF JULY 2014/2ND SRAVANA, 1936** ## **WP(C).NO. 5473 OF 2014 (H)** ## **--------------------------------------** ## **PETITIONER: -------------------** **MAJOR BABU THOMAS (RETIRED) AGED 65 YEARS, S/O. K.G. VARGHESE, KOILPARAMBIL, GOOD SHEPHERD'S BUNGALOW, ARTHINKAL.P.O., CHERTHALA, ALAPPUZHA-688 530.** **BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE, ADVS.SMT.SMITHA GEORGE, SRI.P.K.GEORGE.** ## **RESPONDENTS:** **------------------------** ## **1. THE STATE OF KERALA,** - **REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.** **2. THE DISTRICT COLLECTOR, ALAPPUZHA, CIVIL STATION-688 007.** **3. THE REVENUE DIVISIONAL OFFICER, ALAPPUZHA-688 001.** ## **4. THE TAHSILDAR,** - **CHERTHALA, CHERTHALA.P.O., PIN-688 524.** **5. THE VILLAGE OFFICER, CHERTHALA SOUTH-688 552.** **6. ST. ANDREWS FORANE CHURCH, REPRESENTED BY ITS VICAR, ST. ANDREWS FORANE CHURCH, ARTHINKAL.P.O., CHERTHALA, ALAPPUZHA-688 530.** **7. SUB INSPECTOR OF POLICE, ARTHINKAL POLICE STATION, ARTHINKAL.P.O., CHERTHALA, ALAPPUZHA-688 530.** **8. DISTRICT POLICE CHIEF, ALAPPUZHA.** **Prv.** ## **W.P.(C).NO.5473/2014 - H:** ***ADDL.R.9. IMPLEADED:** ## **9. DISTRICT COLLECTOR,** **ERNAKULAM.** ***ADDL.R.9. IS SUO MOTU IMPLEADED AS PER JUDGMENT DATED 24/07/2014 IN W.P.(C).NO.5473/2014.** **R1 TO R5, R7,R8 & ADDL.R9 BY GOVERNMENT PLEADER SRI. C.S. MANILAL, R6 BY ADV. SRI.M.K.PRADEEPKUMAR, ADVOCATE COMMISSIONER ADV. SRI.T.A.UNNIKRISHNAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-07-2014, ALONG WITH CONT. CASE (CIVIL) NO. 569/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.5473/2014 - H:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF THE JUDGMENT IN O.S. NO. 892/2007 DTD. 17/11/2012. EXT.P2: TRUE COPY OF THE DECREE IN O.S. NO. 892/2007 DTD. 17/11/2012. EXT.P3: TRUE COPY OF THE RELEVANT PAGES OF ADVOCATE - COMMISSIONER'S REPORT ALONG WITH SKETCH IN O.S. NO. 892/2007 DATED 01/01/2008. EXT.P4: TRUE COPY OF THE APPLICATION FOR RELINQUISHING LAND DTD. 23/06/2006. EXT.P5: TRUE COPY OF THE PROCEEDINGS OF THE R.D.O DATED 26-7-13. EXT.P6: TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER DATED 05/11/2013. EXT.P7: TRUE COPY OF THE NOTICE DATED 20-11-13. EXT.P8: TRUE COPY OF THE COMMUNICATION DATED 3-12-13. EXT.P9: TRUE COPY OF THE APPEAL NO. C8.59871/2013 DTD. 11/12/2013. EXT.P10: TRUE COPY OF THE ORDER IN I.A. NO. 2753/2013 IN O.S. NO. 892/2007 DATED 17/10/2013. EXT.P11: TRUE COPY OF THE JUDGMENT DATED 31-1-2014 IN W.P.(C). NO. 1873/2014. EXT.P12: TRUE COPY OF THE NOTICE DATED 7-2-2014 CALLING UPON FOR HEARING. EXT.P13: TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 18-2-2014. EXT.P14: TRUE COPY OF THE COMMUNICATION DATED 18-1-2014 FROM THE R.D.O'S OFFICE. EXT.P15: TRUE COPY OF THE REPORT BY TAHSILDAR DTD. 06/06/2013. EXT.P16: TRUE COPY OF THE KERALA LAND RELINQUISHMENT ACT AND RULES, 1958. EXT.P17: TRUE COPY OF THE RELEVANT PARTS OF THE CANON LAW (CANON 1292). EXT.P18: TRUE COPY OF FORM `C' RECEIVED UNDER THE R.T.I ACT DTD. NIL. EXT.P19: TRUE COPY OF THE REPORT BY THE 5TH RESPONDENT VILLAGE OFFICER DTD. 05/11/13. Prv.** ## **W.P.(C).NO.5473/2014 - H:** ## **RESPONDENTS' EXHIBITS:** **EXT.R6(a): THE TRUE COPY OF THE ORDER DTD. 29/07/2013 OF I.A. NO.3481/2012 IN O.S. 892/2007 OF ADDITIONAL MUNSIFF COURT, CHERTHALA.** **EXT.R6(b): THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS CHURCH IN O.S. NO.892/2007.** **EXT.R6(c): THE TRUE COPY OF THE I.A. NO.2433/2011 IN O.S. NO.892/2007.** **EXT.R6(d): THE TRUE COPY OF THE ORDER DTD. 03/03/2014 IN I.A. NO.3185/2013 OF O.S. NO.892/2007 OF ADDITIONAL MUNSIFF COURT, CHERTHALA.** **EXT.R6(e): THE TWO PHOTOGRAPHS OF THE PATH WAY THROUGH THE WESTERN SIDE OF THE POLICE STATION TOUCHING ARTHUNKAL CHURCH-ARTHUNKAL BEACH ROAD, WHICH IS USED BY THE PETITIONER AND HIS FAMILY SINCE THEY LIVE THERE.** **EXT.R6(f): THE PHOTOGRAPHS OF THE CONGESTED PLACE OF EASTERN SIDE OF THE POLICE STATION USED TO PROCURE `THONDI' OF CRIMINAL CASES.** **EXT.R7(a): TRUE COPY OF THE CERTIFICATE ISSUED BY THE TALUK SUPPLY OFFICER, CHERTHALA TO SHOW THAT THE PETITIONER IS NOT A HOLDER OF RATION CARD DTD. 09/07/2014.** **EXT.R7(b): TRUE COPY OF THE LETTER DTD. 09/07/2014 ISSUED BY CHERTHALA SOUTH GRAMA PANCHAYATH.** **EXT.R7(c): TRUE COPY OF THE C.D. SHOWING THAT THERE IS CARTABLE ACCESS EXIST THROUGH THE ROAD ON THE WESTERN SIDE.** **EXT.R7(d): COPY OF THE PHOTOGRAPH SHOWING THAT VEHICULAR TRAFFIC GOING THROUGH THE WESTERN SIDE OF THE POLICE STATION COMPOUND.** **EXT.R7(e): TRUE COPY OF THE INTERIM ORDER WAS INITIALLY OBTAINED BY THE WRIT PETITIONER WHICH WAS ULTIMATELY HEARD AND DISMISSED BY THIS COURT BY THE JUDGMENT DTD. 23/06/2014 IN W.P.(C).4150/2014.** **EXT.R7(f): TRUE COPY OF THE NOTICE ON AUCTION IN 2001 OF THE CIRCLE INSPECTOR OF POLICE, MARRARIKKULAM DTD. 19/04/2001.** **EXT.R7(g): TRUE COPIES OF THE PROCEEDINGS OF THE DISTRICT POLICE CHIEF, ALAPPUZHA DTD. 17/04/2001.** **EXT.R7(h): TRUE COPY OF THE NOTICE ON AUCTION IN 2012 OF THE CIRCLE INSPECTOR OF POLICE, MARRARIKKULAM DTD. 20/03/2012. EXT.R7(i): TRUE COPIES OF THE PROCEEDINGS OF THE DISTRICT POLICE CHIEF, ALAPPUZHA DTD. 24/03/2012.** **Prv.** ## **W.P.(C).NO.5473/2014 - H:** |**EXT.R7(j):**|**TRUE COPY OF THE JUDGMENT OF THE**| |---|---| ||**HONOURABLE HIGH COURT OF KERALA DTD. 30/06/2014.**| |**EXT.R8(a):**|**TRUE COPY OF THE COMMUNICATION DTD. 09/10/1968.**| |**EXT.R8(b):**|**TRUE COPY OF THE COMMUNICATION DTD. 30/07/79.**| |**EXT.R8(c):**|**TRUE COPY OF THE ESTIMATE.**| |**EXT.R8(d):**|**TRUE COPY OF THE COMMUNICATION DTD. 05/03/1979.**| |**EXT.R8(e):**|**TRUE COPY OF THE RESOLUTION DTD. 29/05/1981.**| |**EXT.R8(f):**|**TRUE COPY OF THE COMMUNICATION ON 02/06/1981.**| |**EXT.R8(g):**|**TRUE COPY OF THE ORDER DTD. 13/06/1982.**| |**EXT.R8(h):**|**TRUE COPY OF THE COMMUNICATION DTD. 18/11/82.**| |**EXT.R8(i):**|**TRUE COPY OF THE GAZETTE WHEREBY THE POLICE STATION IS**| ||**ESTABLISHED DTD. 11/07/1988.**| |**EXT.R8(j):**|**TRUE COPY OF THE SKETCH.**| |**EXT.R8(k):**|**TRUE COPY OF THE LETTER DTD. 25/02/1977.**| |**EXT.R8(l):**|**TRUE COPY OF THE LETTER OF SRI. BABU THOMAS.**| |**EXT.R8(m):**|**TRUE COPY OF THE ORDER DTD. 29/07/13.**| |**EXT.R8(n):**|**TRUE COPY OF THE LETTER DTD. 22/03/78.**| **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** V.CHITAMBARESH, J. --------------------W.P (C) No.5473 of 2014 & Cont. Case (C) No.569 of 2014 --------------------Dated this the 24[th] day of July, 2014 **==> picture [126 x 14] intentionally omitted <==** The petitioner who is a retired Army personnel and his brother own residential property on the rear side of the Arthunkal Police Station on the north eastern corner. The brother of the petitioner has filed a suit in O.S.No.892/2007 on the file of the court of the Additional Munsiff of Cherthala. The suit is one for declaration of right of easement by prescription and for consequential injunction as regards a road on the eastern side of the police station. The said road allegedly connects the house plots of the petitioner and his brother with the beach road running in the east-west direction in front of the police station. The brother of the petitioner has also secured an interim order of injunction against the sixth respondent in regard to his uninterrupted use of the road. **==> picture [362 x 14] intentionally omitted <==** W.P.(C) No.5473/2014 & COC.No.569/2014. 2 purported to relinquish the land (which takes in the disputed road) in favour of the Government under the Kerala Land Relinquishment Act, 1958 (hereinafter referred to as 'the Act' for short). Ext.P5 order was accordingly passed by the third respondent allowing the application for relinquishment filed under Section 3 of the Act. The petitioner has challenged ext.P5 order of the third respondent in Ext.P9 appeal filed under Section 4A of the Act and the same is pending consideration. The petitioner points out that any person aggrieved by an order passed allowing the application for relinquishment can maintain an appeal under Section 4A of the Act. 3. The petitioner contends that there are several infirmities in Ext.P5 order allowing the application for relinquishment and that the same is liable to be set aside. The application for relinquishment filed by the sixth respondent has been produced as Annexure-A9 in Contempt Case (C) No.569/2014. The application is dated 23.6.2006 and seen received 6 years after on 19.12.2012 and counter signed by the Village Officer almost one year W.P.(C) No.5473/2014 & COC.No.569/2014. 3 thereafter on 29.11.2013. The petitioner immediately refers to Form-B under Rule 7 of the Kerala Land Relinquishment Rules, 1958. The application in the requisite proforma has to be countersigned by the Village Officer then in office. The petitioner contends that the Village Officer named who assumed charge in March, 2013 could not have received Annexure-A9 application even on 19.12.2012. 4. The petitioner has also a case that he enjoys a right of easement over the road which can be termed as an 'encumbrance' in the context of Section 3 (1) of the Act. The land could be surrendered by the sixth respondent only if it is free from all encumbrances including easement right. Even otherwise the petitioner points out that his right of easement by prescription over the road will at any rate not be affected by the alleged relinquishment. The petitioner has also a case that no notice was affixed by the third respondent as contemplated under Section 4(3) of the Act in the enquiry. Therefore Ext.P5 order passed under Section 4(5) of the Act is liable to be annulled is the submission of the petitioner. The sixth W.P.(C) No.5473/2014 & COC.No.569/2014. 4 respondent on the other hand relies on Ext.R8(l) letter of the petitioner addressed to the Honourable Chief Minister of Kerala. It is asserted that the petitioner has sought assignment on registry of the land therein conceding that it is government property. 5. I need not consider the correctness or otherwise of Ext.P5 order in this writ petition since the matter is pending in appeal. Suffice it to say that Ext.P9 appeal filed under Section 4A of the Act deserves to be disposed of with all expedition. The appeal has however to be considered by the second respondent under Section 4A of the Act. But the second respondent has filed an affidavit as a person interested on behalf of the State in O.S.No.892/2007 afore-stated. The second respondent has got himself impleaded in O.S.No.892/2007 as a person espousing the interest of the State. The second respondent has taken a stand therein that the land including the alleged road has already been relinquished by the sixth respondent. 6. It will be inequitable to direct the second respondent to dispose of Ext.P9 appeal in the W.P.(C) No.5473/2014 & COC.No.569/2014. 5 circumstances as he is a person interested. It is trite law that justice should not only be done but also appear to be done. We cannot expect the second respondent to have an unbiased approach to the issue since he has already taken a stand in O.S.No.892/2007 that the land has been relinquished. No man can be a Judge of his own cause is a well known maxim which has to be followed scrupulously. Moreover the principle of bias applies not only to judicial authorities but also to administrative authorities in discharging quasi judicial function. A reference to P.D.Dinakaran v. Judges Inquiry Committee and others [(2011) 8 SCC 380] is apposite wherein it is held as follows:- “41. In this case, we are concerned with the application of first of the two principles of natural justice recognised by the traditional English Law i.e. Nemo debet esse judex in propria causa. This principle consists of the rule against bias or interest and is based on three maxims: (i) No man shall be a judge in his own cause; (ii) Justice should not only be done, but manifestly and undoubtedly be seen to be done; and (iii) Judges, like Ceasar's wife should be above suspicion. The first requirement of natural jsutice is that the W.P.(C) No.5473/2014 & COC.No.569/2014. 6 Judge should be impartial and neutral and must be free from bias. He is supposed to be indifferent to the parties to the controversy. He cannot act as Judge of a cause in which he himself has some interest either pecuniary or otherwise as it affords the strongest proof against neutrality. Be must be in a position to act judicially and to decide the matter objectively. A judge must be of sterner stuff. His mental equipoise must always remain firm and undetected. He should not allow his personal prejudice to go into the decision making. The object is not merely that the scales be held even; it is also that they may not appear to be inclined. If the Judge is subject to bias in favour of or against either party to the dispute or is in a position that a bias can be assumed, he is disqualified to act as a Judge, and the proceedings will be vitiated. This rules applies to the judicial and administrative authorities required to act judicially or quasi-judicially.” 7. The only way to tide over the situation would be to direct the appeal filed under Section 4A of the Act to be considered by the District Collector of the neighbouring District. I therefore direct the second respondent to forthwith transmit the file W.P.(C) No.5473/2014 & COC.No.569/2014. 7 relating to Ext.P9 appeal to the District Collector, Ernakulam. The District Collector, Ernakulam is suo motu impleaded as the 9[th] respondent in the writ petition in the circumstances. The District Collector, Ernakulam shall issue notice to all the parties and dispose of Ext.P9 appeal. The propriety of Ext.P5 order purporting to accept the relinquishment of the land by the sixth respondent shall be gone into. Ext.P9 appeal shall be disposed of on merits within a period of two months from the date of receipt of a copy of this judgment. 8. What then should be the status quo till the statutory appeal is disposed of by the District Collector. I take note of the fact that the brother of the petitioner has already secured an interim order of injunction in I.A.No.3806/2007 in O.S.No.892/2007. But W.P.(C) No.4150/2014 filed by him and his wife to give effect to the order of injunction was dismissed directing them to move the civil court itself in O.S.No.892/2007 pending. The petitioner has however not filed any suit and has not obtained any declaration of a right of easement in his favour. The report of the W.P.(C) No.5473/2014 & COC.No.569/2014. 8 Advocate Commissioner deputed by this Court reveals a shocking state of affairs. The Advocate Commissioner in his report dated 8.7.2014 has observed as follows:- “At present the police is keeping old seized vehicles in this area and vehicular traffic is not possible because of the above. ...... At present without clearing the bushes, it is difficult to take vehicles as a coconut tree is standing in the property. Similarly if the seized vehicles are removed from the space where it is now kept one can take vehicles from the property of the petitioner to the main road through the Eastern boundary of the disputed property.” It is thus evident that a motorable road is not available on the western side of the police station without clearing the wild bushes. The compact disc relied on by both the parties were also played in open court in the presence of their counsel. The same reveals that the road on the western side of the police station is not now fit for vehicular traffic. No prejudice would be caused to the respondents by moving the seized vehicles parked on the eastern side of the police station to its rear side. The petitioner can be permitted to use the road on the eastern side of the W.P.(C) No.5473/2014 & COC.No.569/2014. 9 police station without conferring any special right on him. This arrangement shall continue only till Ext.P9 appeal is disposed of by the District Collector, Ernakulam. The necessity to remove the obstruction has been averred in the body of the writ petition as well in the interim reliefs sought therein. 9. This Court by interim order dated 22.4.2014 in W.P.(C) No.5473/2014 directed that ingress and egress to the residence of the petitioner shall not be obstructed pending disposal of the writ petition. The seized vehicles parked on the eastern side of the police station have admittedly not been removed till date. This has prompted the petitioner to move the Contempt Case (C) No.569/20014 alleging disobedience of the interim order of this Court. Now that the contempt case is also being disposed of along with this Writ Petition, I am not initiating any proceedings in contempt now though I strongly disapprove of the action of respondents 7 and 8 in not removing the obstruction by shifting the seized vehicles. I am not for a moment upholding the right of easement by prescription claimed by the petitioner over the disputed road. But I am W.P.(C) No.5473/2014 & COC.No.569/2014. 10 constrained to direct that the obstruction shall be removed in view of the report of the Advocate Commissioner. The Advocate Commissioner fairly concedes in Court that the property of the petitioner is land locked and he is unable to take out his vehicle to road. No prejudice would be caused therefore by permitting the petitioner to use the road pending Ext.P9 appeal without affording any special right. The obstruction shall be removed by respondents 7 and 8 within a period of one week from today. Nothing said herein above shall however influence either the District Collector or the civil court in dealing with the right of the parties on merits. The Writ Petition and the Contempt Case are disposed of accordingly. Sd/V.CHITAMBARESH, Judge. nj.