Melbin K. Thomas v. Land Revenue Commissioner, Thiruvananthapuram & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ## **`MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945`** ## **`WP(C) NO. 25530 OF 2023`** ## **`PETITIONER:`** ``` MELBIN.K. THOMAS AGED 35 YEARS S/O. K.J. THOMAS, KANDATHUMTHODUKAYIL HOUSE THABALAMANNA.P.O., THIRUVAMBADY, KOZHIKODE, PIN - 673603 ``` ``` BY ADVS. SAJI KURIACHAN M.R.NANDAKUMAR ``` ## **`RESPONDENTS:`** - `1 LAND REVENUE COMMISSIONER PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, VIKAS BHAVAN.P.O., THIRUVANANTHAPURAM, PIN - 695033` - `2 THE DISTRICT MAGISTRATE CIVIL STATION.P.O. KOZHIKODE, PIN - 673020` - `3 THE ADDITIONAL DISTRICT MAGISTRATE CIVIL STATION.P.O. KOZHIKODE, PIN – 673020 SMT. DEEPA V. - GP` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(c) No. 25530 of 2023 2 ## **JUDGMENT** The petitioner states that he is an agriculturist and a businessman. He submitted Ext. P1 application for grant of arms license before the 2[nd] respondent for agricultural protection. Since there was a delay in considering the application, the petitioner approached this Court and this Court, by Ext. P2 judgment directed the 2[nd] respondent to consider the petitioner’s application on the basis of relevant statutory provisions and the binding decisions rendered by this Court. 2. Pursuant to Ext. P2 judgment, the 3[rd] respondent rejected Ext. P1 application by Ext. P3 order. Impugning the same, the petitioner approached this Court by filing W.P.(c) No. 587/2023. This Court, by Ext. P4 judgment dated 22.02.2023 disposed of the W.P.(c) No. 25530 of 2023 3 said writ petition, relegating the petitioner to avail the appellate remedy under Section 18 of the Arms Act, 1959. The relevant paragraphs of the judgment are extracted hereunder:- “ _2. According to the petitioner, Ext. P3 impugned order is passed by the primary authority overlooking the Division Bench judgment of this Court in_ _**Aboobker V.T. and Others v. Land Revenue Commissioner, Tvm. & Others in 2022 (2) KHC 170 (DB).**_ _3. The main contention advanced by the petitioner is that the finding rendered by the authority is against the findings rendered by the Division Bench of this Court. In my considered opinion at the most it can be termed as an illegality. Admittedly a statutory appeal is provided under the Act, 1959. In that view of the matter, it is better that the petitioner is relegated to the said authority. A detailed counter affidavit is filed by the respondent justifying the order passed. Any how considering the facts and circumstances, and perusing the impugned order I am of the considered opinion that the petitioner has to file an appeal since findings are rendered by the primary authority; and at the most taking into account the contention put forth by the petitioner, the findings could be termed as an illegality which is a matter susceptible to be interfered by an appellate authority when an appeal is preferred. At that point of time, learned counsel for the petitioner submitted that petitioner may be given the liberty to prefer an appeal before the statutory authority._ W.P.(c) No. 25530 of 2023 4 _Accordingly, this writ petition is disposed of leaving open the liberty of the petitioner to file an appeal against Ext. P3 order within two weeks from the date of receipt of a copy of this judgment. If any such appeal is received, the additional 3[rd] respondent ie., the Land Revenue Commissioner, Thiruvananthapuram is directed to dispose of the appeal within a period of tree months from the date of receipt of the appeal from the petitioner as directed above._ ” 3. In terms of the directions in Ext. P4 judgment, the petitioner preferred an appeal before the Land Revenue Commissioner. The Land Revenue commissioner passed Ext. P5 order, confirming the order of the 3[rd] respondent in Ext. P3. Impugning Ext. P5, this writ petition is filed. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The learned counsel for the petitioner invites my attention to paragraphs 2 and 3 of Ext. P4 judgment and submits that this Court had already W.P.(c) No. 25530 of 2023 5 taken the view that, the finding rendered by the 3[rd] respondent in Ext. P3 is illegal. However, taking note of the statutory alternative remedy available to the petitioner, he was relegated to avail the said remedy. It is contended that the 1[st] respondent, the appellate authority, without any application of mind confirmed the order of the 3[rd] respondent holding that Ext. P3 order was passed in accordance with law. According to the learned counsel, the 1[st] respondent in Ext. P5, has sat in appeal over the finding of this Court in Ext. P4 judgment and therefore Ext. P5 order is liable to be interfered by this Court. 6. It is true that, this Court, in Ext. P4 judgment, has held that, the findings in Ext. P3 rendered by the 3[rd] respondent can at the most be termed as an illegality, which is a matter susceptible to be interfered by an appellate authority. However, the W.P.(c) No. 25530 of 2023 6 appellate authority has observed that Ext. P3 order is passed by the 3[rd] respondent in accordance with law. On going through Ext. P5 order, it is evident that the 1[st] respondent has not taken into account the various contentions put forth by the petitioner as well as the decision of this Court referred to in Ext. P4 judgment. This Court had directed the primary authority to pass an order taking into account the relevant provisions of the statute and the binding decisions rendered by this Court. Without considering those decisions, the primary authority has passed Ext. P3 order. The appellate authority also did not consider any of the binding decisions of this Court while considering the appeal filed by the petitioner. Though this Court in Ext. P4 judgment opined that the finding rendered by the primary authority can be treated as an illegality, the appellate authority without any reasoning W.P.(c) No. 25530 of 2023 7 observed that the findings in Ext. P3 order are in accordance with law. Since Exts. P3 and P5 orders are passed without reference to the binding precedence of this Court in _**Aboobker V.T. and Others v. Land Revenue Commissioner, Tvm. & Others in 2022 (2) KHC 170 (DB)**_ , they are set aside and I remit the matter for the consideration of the primary authority, the 3[rd] respondent. The 3[rd] respondent shall pass appropriate orders on Ext. P1 application of the petitioner in accordance with the statutory provisions and the binding precedence, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment, after hearing the petitioner. The petitioner shall produce a copy of this writ petition along with a certified copy of the judgment before the 3[rd] respondent. The W.P.(c) No. 25530 of 2023 8 petitioner shall also produce the copies of the relevant decisions which are being relied upon in support of his contentions, before the 3[rd] respondent. The writ petition is disposed of. **Sd/MURALI PURUSHOTHAMAN JUDGE** bnu W.P.(c) No. 25530 of 2023 9 ## **`APPENDIX`** ``` PETITIONER’S EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE APPLICATION DATED 08-06- 2022 ``` ``` Exhibit P2TRUE COPY OF THE JUDGMENT DATED 21-10- 2022 IN W.P.(C) NO. 26836/2022 Exhibit P3TRUE COPY OF THE REJECTION ORDER DATED ``` ``` TRUE COPY OF THE REJECTION ORDER DATED 05-12-2022 OF THE 3RD RESPONDENT ``` - `Exhibit P4` ``` TRUE COPY OF THE JUDGMENT DATED 22-02- 2023 IN W.P.(C) NO. 587/2023 ``` - `Exhibit P5` ``` TRUE COPY OF THE ORDER DATED 19-06-2023 IN LR/3219/2023-LR(A5) ``` ``` Exhibit P6A TRUE COPY OF THE TRAINING CERTIFICATE DATED 14-09-2022 Exhibit P7A TRUE COPY OF THE LETTER DATED 16-11- ``` ``` A TRUE COPY OF THE LETTER DATED 16-11- 2023 ISSUED BY THE PRESIDENT OF THIRUVAMBADY GRAMA PANCHAYAT TO THE 2ND RESPONDENT ``` ``` Exhibit P8A TRUE COPY OF THE LETTER ISSUED BY THE AGRICULTURALOFFICER,KRISHIBHAVAN, THIRUVAMBADY TO THE 2ND RESPONDENT DATED 22-11-2022 ``` ``` Exhibit P9 ``` ``` Exhibit P10 ``` ``` TRUE COPY OF THE JUDGMENT DATED 20-10- 2022 IN W.P.(C) NO.24416 OF 2022 ``` ``` TRUE COPY OF THE JUDGMENT IN ABOOBAKER V.T. AND OTHERS VS. LAND REVENUE COMMISSIONER, TVM. & OTHERS DATED 15-02- 2022 IN W.P.(C) NO. 35111/2015 AND CONNECTED CASES OF THIS COURT REPORTED IN 2022 (2) KHC 170 (DB) ```