Mathew George v. Revenue Divisional Officer, Devikulam; Special Tahsildar (Land Assignment), Nedumkandam; Village Officer, Vandamedu Village; Jose Joseph; Tito M. Jose

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945 WP(C) NO. 28356 OF 2023** ## **PETITIONER:** MATHEW GEORGE AGED 65 YEARS S/O GEORGE, VALIPLAKKAL HOUSE, RICKSONPADY, VANDANMEDUVILLAGE, IDUKKI, PIN - 685551 BY ADVS. J.ABHILASH VIMAL BHASKAR ## **RESPONDENTS:** 1 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, DEVIKULAM P.O, IDUKKI, PIN - 685613 2 THE SPECIAL THAHASILDAR (LAND ASSIGNMENT) O/O SPECIAL THAHASILDAR (LAND ASSIGNMENT), NEDUMKANDAM, IDUKKI, PIN - 685553 3 THE VILLAGE OFFICER VANDANMEDU VILLAGE OFFICE, VANDANMEDU, KERALA, PIN - 685551 4 JOSE JOSEPH AGED 73 YEARS S/O JOSEPH, VATTAKUZHIYIL HOUSE, VATTAPPARA, CHEMBALAM, PAMBADUMPARA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT, PIN - 685514 5 TITO M. JOSE AGED 45 YEARS S/O JOSE JOSEPH, VATTAKUZHIYIL HOUSE, VATTAPPARA, CHEMBALAM, PAMPADUMPARA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT, PIN - 685514 **WP(C)NO.28356/2023** **2** BY ADVS. Mathew John ABY J AUGUSTINE(K/000302/2018) JAFFAR KHAN, SR.GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C)NO.28356/2023** **3** ## **JUDGMENT** _Dated this the 30[th] day of November, 2023_ The above Writ Petition is filed by the petitioner seeking to quash Ext.P9 notice dated 01.08.2023. Petitioner has also sought for a direction to the second respondent not to proceed with Ext.P9 until the culmination of O.S.No.193 of 2021 pending before the Munsiff Court, Kattappana. 2. Petitioner is the absolute owner in possession of 49 cents of land in Re.Sy.No.234/07 and 234/8 of Vandanmedu Village, Udumbanchola Taluk, Idukki District, and 26 cents in Sy.No.241/06 in the above said Village and Taluk. Petitioner became absolute owner of the property as per the proceedings in L.A.No.655 of 1999 before the Additional Tahsildar, Udumbanchola, and Ext.P1 patta No.212 was issued to him under Rule 9 of the Kerala Land Assignment (Regularisation of Occupations of Forest Lands prior to 1-1-1977) Special Rules, 1993 (hereinafter referred to as 'the Special Rules, 1993'). Petitioner after effecting mutation was remitted the land tax for the said property in thandaper No.133 of Vandanmedu Village **WP(C)NO.28356/2023** **4** Office. During 1994, there existed a cartable jeep road starting from Ricksonpady-Varavukode Panchayat to the petitioner's property and in the western side of the petitioner's property lies the property of the fourth respondent, who has purchased the same in the year 2001. In order to have a good relationship with the fourth respondent, acceding to the request of his father, who is the fifth respondent, the petitioner permitted the party respondents to make a road through his property and the expenses for which was shared by the petitioner and the party respondents and a gate was also erected at the entrance of the Panchayat road. As a result of the same, the petitioner's property was divided on the southern side of the road and on a complaint, the Taluk Surveyor inspected the property and made a report stating that since the road claimed by the fifth respondent is not sub divisioned, he is not in a position to ascertain the boundary of the property. Later, when the fifth respondent locked the gate at the entrance with a sole intention to claim exclusive right over the property, petitioner was constrained to file a suit as O.S.No.193 of 2021 before the **WP(C)NO.28356/2023** **5** Munsiff Court, Kattappana, which is pending consideration. During pendency of the said civil proceedings, the party respondents approached the District Collector, Idukki, by filing Ext.P6 complaint under Rule 16(1) and (3) of the Special Rules, 1993 to cancel the patta granted to the petitioner stating that the petitioner obtained the patta by misrepresenting the authorities and stating that the road is situated in a non patta land. Pursuant to Ext.P6, the second respondent filed a report before the Sub Collector, Devikulam, to cancel Ext.P1 patta assigned to the petitioner. Petitioner in the said circumstances filed Ext.P8 objection. In Ext.P8, the petitioner contended that the property was surveyed and demarcated during 2001 and the party respondents raised no objection during that time and the new report of the Taluk Surveyor is in contravention of the field register and the resurvey records. While so the petitioner was issued with Ext.P9 notice dated 01.08.2023 by the second respondent, a notice issued prior to the cancellation of the patta and the petitioner was directed to appear before the second respondent and submit his objections. It is at this stage that **WP(C)NO.28356/2023** **6** the petitioner has approached this Court. 3. A detailed counter affidavit has been filed by the fourth respondent mainly raising a preliminary objection regarding maintainability of the Writ Petition inasmuch as what is under challenge is only a showcause and that there is no averment in the Writ Petition regarding lack of jurisdiction by the author of the notice or any contention has been taken that Ext.P9 notice has been issued without any authority of law. It is further contended that the application for assignment submitted by the petitioner did not contain the boundaries of the property in respect of which he claimed assignment. It is also submitted that in the patta it is specifically stated that “the extent is subject to the stipulated marks of boundary and survey”. It is further contended that in Ext.R4(a) application for issuance of patta, the petitioner has sought for assignment of a parcel of land in Sy.No.210. But, a reference to Ext.P1 patta would show that he has been assigned land in Sy.Nos.234/7, 8 and 241/6. On the basis of the same, it is contended that Ext.P1 patta issued to the petitioner is liable to be cancelled **WP(C)NO.28356/2023** **7** invoking Rule 16 of the Special Rules, 1993. It is on the application submitted by the petitioner that survey was conducted and the Taluk surveyor who has conducted the survey reported that the petitioner is not in possession of the property covered by Ext.P1 patta. Though the petitioner approached the Munsiff Court, Kattappana, by filing O.S.No.193 of 2021, he could not secure any interim order of injunction and the suit is pending before the said court. It is in the said circumstance that the respondents have sought for cancellation of patta and on the said aspect, statutory enquiry was conducted and it is in the said process, the second respondent forwarded Ext.P7 report. On receipt of Ext.P7, the Tahsildar (LR) has passed an order interdicting sale of the property or providing copy of ROR or from receiving property tax as per Ext.R4(b) order dated 29.06.2022. It is further contended that it is on the basis of the abovesaid materials on record that the second respondent has issued Ext.P9 notice dated 01.08.2023. 4. A counter affidavit has been filed by the second respondent wherein it is contended that the neighbouring land **WP(C)NO.28356/2023** **8** owner of the petitioner has filed a complaint before the sub Collector, Devikulam, wherein it is stated that the patta was obtained by the petitioner by misrepresenting facts and manipulating survey records and accordingly, the Sub Collector, sought for a report from the Tahsildar, Udumbanchola, and the said authority after conducting an enquiry submitted a report wherein it is stated that some discrepancies had occurred during the preparation of survey sketch and in the said circumstances, the Tahsildar, Udumbanchola, suggested to cancel the patta by invoking Rule 16 of the Special Rules, 1993 and accordingly Ext.P9 notice was issued under Rule 16(4) of the Special Rules, 1993. It is further stated in the counter affidavit that some portion of the land comprised in Sy.Nos.234/7 and 234/8 were not in the possession of the petitioner even at the time of issuance of patta and the anomaly can be resolved only after cancellation of patta No.655 of 1999 and issuing a fresh patta on the basis of actual possession of the land. 5. I have heard the learned counsel for the petitioner, **WP(C)NO.28356/2023** **9** learned counsel appearing for the fourth respondent and also the learned Special Government Pleader. 6. The specific case of the petitioner is that going by the tenure of Ext.P9 and the stand taken in the counter affidavit filed by the second respondent, the authorities are predetermined regarding the cancellation of patta and that no purpose will be served even if the petitioner participate in the proceedings evidenced by Ext.P9. Therefore, he sought for quashing Ext.P9. What is under challenge in this Writ Petition is only a notice wherein the petitioner was directed to appear and file his objection in the said proceedings. It is settled law that ordinarily a Writ Petition is not maintainable at the notice stage and only if the notice is issued without any authority of law or without jurisdiction, a writ will be issued to quash the same [see the judgment in Poulose v. RTO, Palakkad (1992 KHC 82)]. 7. In view of the fact that Ext.P9 is only a notice giving opportunity to the petitioner to approach the said authority to file his objection regarding the tentative decision to cancel the patta, I am of the opinion that no interference is called for on **WP(C)NO.28356/2023** **10** Ext.P9 inasmuch as the notice has been issued by a proper authority having jurisdiction and strictly in compliance with the procedure contemplated as per the Special Rules, 1993. At the same time, the apprehension raised by the petitioner based on the wording in Ext.P9 and the stand taken by the second respondent in the counter affidavit cannot be brushed aside. The second respondent has to adjudicate the issue strictly in accordance with law untrammelled by any of the observations made in the counter affidavit and take an independent decision in the matter after affording an opportunity of being heard to the petitioner as well as the fourth and fifth respondents or any other person affected by the orders to be passed. This Court had occasion to consider the procedure to be adopted by a quasi judicial authority entrusted with the power under a statute in **Sunil Kumar.P. v. State of Kerala and another** reported in 2021 KHC 5052 and held in paragraphs 21, 22, 23 and 24 as follows : _“21. What is the distinction between a quasi judicial order or an administrative or ministerial order? In Province of Bombay v. Kushaldas S. Advani : AIR 1950 SC 222, it has been held as follows:_ **WP(C)NO.28356/2023** **11** _"(i) That, if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by any party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie, and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi - judicial act; and_ _(ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially."_ (emphasis supplied) _22. What shall be the criteria to decide whether a decision is judicial or not? In Jaswant Sugar Mills Limited v. Lakshmi Chand : AIR 1963 SC 677, the Supreme Court has held as follows:_ _“To make a decision or an act judicial, the following criteria must be satisfied:_ _1) it is in substance a determination upon investigations of a question by the application of objective standards to facts found in the light of pre existing legal rules;_ _2) it declares rights or imposes upon parties obligation affecting their civil rights; and_ _3) that the investigation,is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal_ **WP(C)NO.28356/2023** **12** _argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact”._ _23. 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 or 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. 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. What distinguishes an administrative act from quasi judicial act is, in the case of quasi judicial functions under the relevant law, the statutory authority is required to act judicially. When the law requires that an authority before arriving at decision must make an enquiry, such a requirement of law makes the authority a quasi judicial authority. Another test which distinguishes administrative function from quasi judicial function is, the authority who acts quasi judicially is required to act according to the rules, whereas the authority which acts administratively is dictated by the policy and expediency (See Indian National Congress v. Institute of Social Welfare : AIR 2002 SC 2158)._ _24. Before passing an order under Section 12 of the Kerala Land Conservancy Act, an enquiry is contemplated. The Tahsildar has to act judicially in taking a decision in the matter before him. In such circumstances, if_ **WP(C)NO.28356/2023** **13** _the principles mentioned in the decisions referred to above are applied, there can be no doubt that he is acting as a quasi judicial authority in passing an order under Section 12 of the Kerala Land Conservancy Act.”_ (underline supplied) 8. Going by the decisions in _Sunil Kumar P._ (supra), the investigation on the issue includes granting opportunity of presenting a case by the party, ascertainment of facts by means of evidence if the dispute be on question of facts and if dispute be on question of law, on the presentation of legal argument and take a decision resulting the disposal of the matter on finding based upon those question of law and facts. In such circumstances, the second respondent while proceeding further pursuant to Ext.P9 notice shall give sufficient opportunity to the petitioner to present his case by adducing necessary evidence in support of his contentions and such opportunity shall be afforded to the party respondents in the Writ Petition or any other person interested thereon also, and take a final decision in the matter strictly in accordance with law untrammelled by any of the observations made in the counter affidavit filed by the second respondent. Leaving open the **WP(C)NO.28356/2023** **14** parties to adjudicate their grievances before the second respondent in the proceedings initiated as per Ext.P9, this Writ Petition is disposed of with a direction to the second respondent to finalise the proceedings pursuant to Ext.P9 with notice to the petitioner and the party respondents or any other person affected thereby strictly in accordance with law and the finding in this judgment, at any rate, within an outer limit of two months from the date of receipt of a copy of the judgment. Sd/- **VIJU ABRAHAM JUDGE** csl **WP(C)NO.28356/2023** **15** ## **APPENDIX OF WP(C) 28356/2023** PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE PATTA NO. 212 DATED 15.02.2001 IN L.A.655/99 Exhibit P2 TRUE COPY OF THE REPORT OF THE TALUK SURVEYOR DATED 11.01.2019 OBTAINED BY THE PETITIONER IN ACCORDANCE WITH R.T.I ACT Exhibit P3 TRUE COPY OF THE PLAINT IN O.S. 193/2021 DATED 10.08.2021 Exhibit P4 TRUE COPY OF THE WRITTEN STATEMENT DATED 30.03.2022 Exhibit P5 TRUE COPY OF THE COMMISSION REPORT IN O.S.193/2021 SUBMITTED BEFORE HON'BLE MUNSIFF COURT KATTAPPANA DATED 01.09.2021 - Exhibit P6 TRUE COPY OF THE COMPLAINT MADE BY THE PARTY RESPONDENTS BEFORE THE DISTRICT COLLECTOR IDUKKI DATED 28.10.2021 - Exhibit P7 TRUE COPY OF THE REPORT DATED 19/10/2022 ALONG WITH THE REPORT OF THE TALUK SURVEYOR - Exhibit P8 TRUE COPY OF THE OBJECTION DATED 22.12.2022, TO EXHIBIT P7 - Exhibit P9 TRUE COPY OF THE NOTICE DATED 01/08/2023 RESPONDENTS' EXHIBITS EXHIBIT R4 (a) true copy of the said undated application EXHIBIT R4 (b) true copy of the same dated 29.06.2022 EXHIBIT R4 (c) True copy of the photographs **WP(C)NO.28356/2023** **16** PETITIONER'S ADDITIONAL EXHIBITS Exhibit P10 TRUE COPY OF THE LETTER ISSUED BY THE SUB COLLECTOR DATED 05.01.2023 TO THE SECOND RESPONDENT OBTAINED BY THE PETITIONER BY WAY OF RIGHT TO INFORMATION ACT Exhibit P11 TRUE COPY OF THE REPORT FILED BY THE VILLAGE OFFICER AND HEAD SURVEYOR OBTAINED BY THE PETITIONER DATED 11.10.2023 THROUGH RIGHT TO INFORMATION ACT Exhibit P12 TRUE COPY OF THE PATTAYA MAZHAR DATED 14/09/2001