Mary George and Others v. The Land Revenue Commissioner, Office of the Land Revenue Commissioner, Thiruvananthapuram; The District Collector, Idukki District; The Sub Collector, Devikulam, Idukki District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY ,THE 08TH DAY OF JANUARY 2019 / 18TH POUSHA, 1940** ## **WP(C).No. 514 of 2019** ## **PETITIONER/S:** - **1 MARY GEORGE,AGED 69 YEARS,W/O. GEORGE PALIYATH, PALIYATH HOUSE, THADIYAMPADU P.O, IDUKKI** - **2 ANUPA JOICE, AGED 44 YEARS, W/O. JOICE GEORGE, PALIYATH HOUSE, THADIYAMPADU P.O, IDUKKI** - **3 JISSA JUSTIN, AGED 40 YEARS, W/O. JUSTIN GEORGE, PALIYATH HOUSE, THADIYAMPADU P.O, IDUKKI** - **4 RAJEEV JYOTHISH GEORGE,AGED 30 YEARS, S/O. GEORGE PALIYATH, PALIYATH HOUSE, THADIYAMPADU P.O, IDUKKI** - **5 JOICE GEORGE, AGED 47 YEARS,S/O. GEORGE PALIYATH, PALIYATH HOUSE, THADIYAMPADU P.O, IDUKKI** **BY ADVS. SRI.D.KISHORE SMT.MEERA GOPINATH SMT.MINI GOPINATH SRI.LIJI.J.VADAKEDOM SRI.R.MURALEEKRISHNAN (MALAKKARA)** ## **RESPONDENT/S:** - **1 THE LAND REVENUE COMMISSIONER, OFFICE OF THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM 695 033** - **2 THE DISTRICT COLLECTOR, IDUKKI DISTRICT, PIN 685 603.** - **3 THE SUB COLLECTOR, DEVIKULAM, IDUKKI DISTRICT PIN 685 613.** ## **OTHER PRESENT:** ## **SMTA.C.VIDHYA,GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 514 of 2019 ================== Dated this the 8[th] day of January, 2019 ## **J U D G M E N T** The prayers in the above Writ Petition (Civil) are as follows: - _“a. Call for the records leading to the passing of Exhibit P3, P3(a), P3(b), P3(c), and P3(d) orders and set aside the same to the extent it directs that the petitioners cannot be represented by an Advocate or by an agent and that the petitioners should appear in person before the Sub Collector, Devikulam (3[rd] respondent) for the proceedings initiated under Rule 8 of the Kerala Land Assignment Rules, by issuing a Writ of Certiorari or any other appropriate, writ order or direction._ - _b) Declare that the petitioners are entitled to be represented by an Advocate before the 3[rd] respondent to defend Exhibit P4 series proceedings in view of Section 30 of the Advocates Act, 1961._ - _c) Grant such other reliefs which this Hon'ble Court may deem fit and proper in the interest of justice.”_ 2. Heard Sri.D.Kishore, learned counsel appearing for the petitioners and Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the respondents. 3. Shorn of all the details of this case, it is seen that the main complaint voiced by the petitioner is in respect of the impugned directions issued by the 1[st] respondent Commissioner for Land Revenue, as reflected in the impugned Ext.P-3 series of orders dated 23.11.2018, to the limited extent it has directed that the petitioners shall not be represented by an Advocate of their choice before the 3[rd] respondent Sub Collector/Revenue Divisional Officer in relation to W.P.(C).514/19 - : 3 :- the application, which is suo motu pending before that authority regarding the cancellation of the patta granted to the petitioners under the Kerala Land Assignments Rules, 1964. Regarding the very issue, in respect of the very same proceedings, the 2[nd] respondent District Collector has taken a well considered decision in Ext.P-2 series dated 30.6.2018, as given on internal page on 44 of the paper book of this Writ Petition, wherein the said authority has held in para 2 like the petitioners, who are facing proceedings for cancellation of the grant of patta issued to them, will certainly have the legal right to be represented by an Advocate of their choice, in view of the force of the mandatory provisions contained in Sec. 30 of the Advocates' Act, 1961. The relevant portion of said order of dated 30.6.2018 rendered by the 2[nd] respondent District Collector in Ext.P-2 series, as given on page 44 of the papers book of the W.P.(C). reads as follows: _“The Section 30 of the Advocates Act entitles every advocate to practice through out the territories to which the Advocates Act extends, in all courts, tribunals, or before any authority of person before whom such advocate is entitled to practice. The Land Assignment Rules do not restrict the appearance of persons through legal practitioners. Therefore, retaining the right of the quasi-judicial authority to compel appearance in person for reasons recorded, the advocate should have been allowed to appear. The Act of the sub collector to not allow the advocates for the hearing is thus found to be illegal. In a connected case, the Honorable High Court of Kerala in WP(C) No.2054 of 2018 has reiterated this point and ordered that the petitioner be permitted to appear through an advocate. But it was clarified that if and when the presence of the petitioner is required in person or any document is required, the petitioner as well as the advocate appearing for the petitioner shall facilitate the same so as to have a safe conclusion of the_ W.P.(C).514/19 - : 4 :- _proceedings. This will apply mutatis mutandis to this case too. Not applying these principles, which has been time and again reiterated by the Honorable High Court and the Honorable Supreme Court would amount to legal ignorance and contempt of court.”_ 4. Whereas the impugned directions issued by the 1[st] respondent Commissioner for Land Revenue, as per Ext.P-3 series dated 23.11.2018, as given on page No.70 of the paper book of this W.P.(C)., is only a cryptic order to the following effect: _"............... ..._ പര�ശ��ധന� അധ�ക�ര�യ�യ ശ�വ�ക�ള� സബ കളക�ർ മ�മ�കക തനക� അവക��� കതള�യ�ക�നത�ന�യ� കകവ�ക�ര� ശനര�ട! _"_ തകന ഹ�ജര�ശകണത�ണ _._ ഇപപക�ര� ��വ�ഷൻ ഹരജ� ത*ർപ�ക�ന� 5. The grievance of the petitioners is to the extent that it is insisted that the petitioners should be personally present in all the proceedings before that authority, even though the 2[nd] respondent District Collector has permitted the petitioners to be represented through an Advocate of their choice. It is is pointed out by the learned counsel for the petitioners that the 1[st] respondent Commissioner has clearly mentioned in the penultimate paragraph of Ext.P-3 series, as given on page 70 of the paper book of this W.P.(C). that the impugned stand of the 2[nd] respondent District Collector which had refused representation of the petitioners through an Advocate of their choice cannot be said to be illegal or wrong and has consequently issued in the last paragraph of Ext.P-3 series that the petitioners shall be personally present before the 3[rd] respondent Sub W.P.(C).514/19 - : 5 :- Collector on all the days of the proceedings in question. It is pointed out that the said impugned stand of the 3[rd] respondent Sub Collector denying the right of the petitioners to be represented through an Advocate of their choice was rightly found to be wrong and illegal by the 2[nd] respondent District Collector (appellate authority) as per Ext.P-1 series orders dated 9.11.2017 was rightly found to be wrong and illegal by the 2[nd] respondent District Collector (appellate authority) in Ext.P-2 series as aforestated and that the said finding and direction issued by the 2[nd] respondent District Collector in favour of the petitioners to be represented through an Advocate of their choice, have now been overulled by the 1[st] respondent Commissioner in the impugned Ext.P-3 series. The petitioners mainly place reliance on on Sec. 30 of the Advocate's Act, 1961, which reads as follows: _“Sec.30: Right of advocates to practise.- Subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends,--_ - _(i) in all Courts including the Supreme Court;_ - _(ii) before any tribunal or person legally authorised to take evidence; and_ - _(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.”_ 6. Sec.17 of the Maintenance and Welfare of Parents & Senior Citizens Act, 2007, reads as follows: W.P.(C).514/19 - : 6 :- _“Sec.17: Right to legal representation.-- Notwithstanding anything contained in any law, no party to a proceeding before a Tribunal or Appellate Tribunal shall be represented by a legal practitioner.”_ 7. It has been held in various decisions as in _**Paramjit Kumar Saroya v. UOI**_ reported in 2014 KHC 3407 that Sec.30 of the Advocates Act, has come into force on 15.6.2011 and hence an Advocate can represent himself before the Tribunal and that the Central Government should have a serious re-look into the matter of Sec.17 formally still being on the statute book. Further this Court has held in the decision in _**Latha Sunam v. District Collector, Alappuzha**_ , reported in 2013 (2) KLT 233 = ILR 2013 (2) Ker.44 that various provisions contained in various statutes like Sec. 17 of the Maintenance and Welfare of Parents & Senior Citizens Act, 2007, restricting or prohibiting the right of engagement of lawyers on the choice of the parties will get whittled down and diluted due to the enforcement of the mandatory provisions contained in Sec.30 of the Advocates Act, 1961 as per notification dated 15.6.2011 issued by the Union Government. Going by the mandate of Sec. 30 of the Advocates Act, 1961, subject to the provisions of the Advocates Act, 1961, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to W.P.(C).514/19 - : 7 :- which the Act extends, not only in all courts including the Supreme Court but also before any tribunal or person legally authorised to take evidence. The proceedings before the 3[rd] respondent Sub Collector is under Rule 8(3) of the Kerala Land Assignment Rules, 1964 in the matter of cancellation of patta/ registry issued in land assignment proceedings. Such proceedings will have grave adverse civil consequences on the affected party concerned and more over, many a time it would have vexed issues of the question of fact and law and even mixed questions of fact and law and any adverse decision so taken by the authority concerned as against the party concerned will inflict on him grave adverse civil consequences. That apart, many a time matters would require resolution of vexed factual issues, which may also involve adjudication of factual issues including adducing of evidence or at least appreciation of factual evidence. It would also certainly involve interpretation of various provisions in the Rules and the Act and also other related statutory provisions and may also have impact on the aspects borne out from general law. Therefore, in many a case it might require the fine tuned assistance of a legal practitioner. That apart, similar provisions for engagement of lawyers as contained in the provisions of the Family Courts Act, 1954 W.P.(C).514/19 - : 8 :- were also held to be unenforceable in view of the coming into force of Sec.30 of the Advocates Act in _**Saji.C.P. v. UOI & Ors.**_ reported in 2013 (3) KHC = 2011 (3) KLT 936. There are no provisions in the Kerala Government Land Assignment Act, 1960 or the Kerala Land Assignment Rules, 1964 placing any restriction or prohibition for engagement of Advocate of the choice of the party concerned in proceedings under the said Act and the Rules. Therefore, going by the mandatory impact of the provisions contained in Sec.30 of the Advocates Act, the stand of the 1[st] respondent Commissioner and the 3[rd] respondent Sub Collector that the parties cannot insist for engagement of Advocates of their choice is legally wrong and unreasonable. It is also reiterated that the contra stand of the 2[nd] respondent District Collector in Ext.P-2 series as mentioned hereinabove that the applicants have the right to be represented through the Advocates of their choice is correct and tenable. In the light of the above aspects, the impugned Ext.P-3 series of orders to the limited extent it has denied the right of representation of the petitioners through the Advocates of their choice will stand rescinded and set aside. Accordingly, it is ordered and declared that the petitioners will have the right to be represented and defended by the W.P.(C).514/19 - : 9 :- Advocate of their choice in the proceedings under the Kerala Land Assignment Rules, 1964, before the authorities like the 3[rd] respondent as well as the appellate and revisional authorities. The further direction issued in Ext.P-3 that the petitioners should necessarily be present on all the posting dates in the said proceedings before the 3[rd] respondent is also equally wrong and incorrect and will stand rescinded. So long as the petitioners have executed due vakalaths by engaging Advocates of their choice, it cannot be insisted by the respondents that parties like the petitioners should necessarily be personally present before the authorities concerned in proceedings under the Kerala Land Assignment Rules. Of course, if some pertinent factual aspects require the elicitation from the petitioners, it will be certainly open to the authorities like the 3[rd] respondent to require the personal appearance of the parties concerned for the limited purpose of elicitation of some crucial and relevant factual particulars. As far as possible, such factual particulars could also be provided by the parties like the petitioners on the basis of sworn affidavits and insistence for personal appearance should not be the generality of the approach, but should be the rare exception. The impugned Ext.P-3 proceedings will stand modified to the abovesaid W.P.(C).514/19 - : 10 :- limited extent and all other aspects will stand confirmed. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** W.P.(C).514/19 - : 11 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS NO. A2821/2015(F) DATED 9-11-2017 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER** |**EXHIBIT P1**|**A **|**TRUE COPY OF THE PROCEEDINGS NO. A2-821/2015**| |---|---|---| |||**(G) DATED 9-11-2017 ISSUED BY THE 3RD**| |||**RESPONDENT TO THE 2ND PETITIONER**| |**EXHIBIT P1**|**B **|**TRUE COPY OF THE PROCEEDINGS NO. A2-**| |||**821/2015(B) DATED 9-11-2017 ISSUED BY THE 3RD**| |||**RESPONDENT TO THE 3RD PETITIONER**| |**EXHIBIT P1**|**C **|**TRUE COPY OF THE PROCEEDINGS NO. A2-**| |||**821/2015(J) DATED 9-11-2017 ISSUED BY THE 3RD**| |||**RESPONDENT TO THE 4TH PETITIONER**| |**EXHIBIT P1**|**D **|**TRUE COPY OF THE PROCEEDINGS NO. A2-**| |||**821/2015(H) DATED 9-11-2017 ISSUED BY THE 3RD**| |||**RESPONDENT TO THE 5TH PETITIONER**| |**EXHIBIT P2**||**TRUE COPY OF THE ORDER NO. DCIDK/190/2018-C2**| |||**DATED 30-06-2018 OF THE 2ND RESPONDENT ISSUED**| |||**TO THE 1ST PETITIONER.**| |**EXHIBIT P2**|**A **|**TRUE COPY OF THE ORDER NO. DCIDK/188/2018-C2**| |||**DATED 30-06-2018 OF THE 2ND RESPONDENT ISSUED**| |||**TO THE 2ND PETITIOENR**| |**EXHIBIT P2**|**B **|**TRUE COPY OF THE ORDER NO. DCIDK/189/2018-C2**| |||**DATED 30-06-2018 OF THE 2ND RESPONDENT ISSUED**| |||**TO THE 3RD PETITIOENR**| |**EXHIBIT P2**|**C **|**TRUE COPY OF THE ORDER NO. DCIDK/191/2018-C2**| |||**DATED 30-06-2018 OF THE 4TH RESPONDENT ISSUED**| |||**TO THE 2ND PETITIONER.**| |**EXHIBIT P2**|**D **|**TRUE COPY OF THE ORDER NO. DCIDK/184/2018-C2**| |||**DATED 30-06-2018 OF THE 2ND RESPONDENT ISSUED**| |||**TO THE 5TH PETITIONER**| W.P.(C).514/19 - : 12 :- **EXHIBIT P3 TRUE COPY OF THE ORDER NO. LRJ3-38423/2018 DATED 23-11-2018 OF THE 1ST RESPONDENT AS REGARDS THE 1ST PETITIONER.** - **EXHIBIT P3 A TRUE COPY OF THE ORDER NO. LRJ3-38421/2018 DATED 23-11-2018 OF THE 1ST RESPONDENT AS REGARDS THE 2ND PETITIONER.** - **EXHIBIT P3 B TRUE COPY OF THE ORDER NO. LRJ3-38419/2018 DATED 23-11-2018 OF THE 1ST RESPONDENT AS REGARDS THE 3RD PETITIONER.** - **EXHIBIT P3 C TRUE COPY OF THE ORDER NO. LRJ3-38422/2018 DATED 23-11-2018 OF THE 1ST RESPONDENT AS REGARDS THE 4TH PETITIONER.** - **EXHIBIT P3 D TRUE COPY OF THE ORDER NO. LRJ3-38420/2018 DATED 23-11-2018 OF THE 1ST RESPONDENT AS REGARDS THE 5TH PETITIONER** - **EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 31-12-2018 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER.** - **EXHIBIT P4 A TRUE COPY OF THE NOTICE DATED 31-12-2018 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER** - **EXHIBIT P4 B TRUE COPY OF THE NOTICE DATED 31-12-2018 ISSUED BY THE 3RD RESPONDENT TO THE 3RD PETITIONER** - **EXHIBIT P4 C TRUE COPY OF THE NOTICE DATED 31-12-2018 ISSUED BY THE 3RD RESPONDENT TO THE 4TH PETITIONER** **EXHIBIT P4 D TRUE COPY OF THE NOTICE DATED 29-12-2018 ISSUED BY THE 3RD RESPONDENT TO THE 5TH PETITIONER.**