M.P. Jackson, M.P. Tomy, M.P. Gigi, M.P. Brite, Usha M.P. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** ## **WP(C).No.30675 OF 2019(H)** ## **PETITIONERS:** |**1**|**M.P.JACKSON,**| |---|---| ||**AGED 66 YEARS**| ||**SON OF PAUL, MAMPILLY HOUSE, MANAVALASSERI VILLAGE,**| ||**MUKUNDAPURAM TALUK, THRISSUR DISTRICT.**| |**2**|**M.P.TOMY,**| ||**AGED 61 YEARS**| ||**SON OF PAUL, MAMPILLY HOUSE, MANAVALASSERI VILLAGE,**| ||**MUKUNDAPURAM TALUK, THRISSUR DISTRICT.**| |**3**|**M.P.GIGI,**| ||**AGED 58 YEARS**| ||**SON OF PAUL, MAMPILLY HOUSE, MANAVALASSERI VILLAGE,**| ||**MUKUNDAPURAM TALUK, THRISSUR DISTRICT.**| |**4**|**M.P.BRITE,**| ||**AGED 55 YEARS**| ||**SON OF PAUL, MAMPILLY HOUSE, MANAVALASSERI VILLAGE,**| ||**MUKUNDAPURAM TALUK, THRISSUR DISTRICT.**| |**5**|**USHA M.P.,**| ||**AGED 61 YEARS**| ||**DAUGHTER OF PAUL, MAMPILLY HOUSE, MANAVALASSERI**| ||**VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.**| **BY ADVS. SRI.P.GOPINATH (SR.) SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.JOSON MANAVALAN SRI.PAULOSE C. ABRAHAM SRI.JAI MOHAN** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **WP(C).No.30675 OF 2019 2** - **2 REVENUE DIVISIONAL OFFICER, CIVIL STATION ANNEX, CHEMMANDA ROAD, IRINJALAKUDA - 680 125, KERALA.** - **3 AGRICULTURAL OFFICER, KRISHI BHAVAN, IRINJALAKUDA - 680 121.** - **4 COMMISSIONER FOR LAND REVENUE,** - **PUBLIC OFFICE BUILDING, MUSEUM ROAD, OPPOSITE ZOO, VIKHAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033.** - **5 JOSEPH MARTIN, ALLENGANDAN HOUSE, IRINJALAKUDA.** - **6 SANTOSH BOBAN, VALLOOR HOUSE, MANAVALASSERY, IRINJALAKUDA.** - **R5 BY ADV. SRI.N.M.MADHU** ## **SPL.GP.MOHAMMED ANZAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.30675 OF 2019 3** ## **JUDGMENT** The petitioners have approached this Court impugning certain conditions imposed in Ext.P11 Order issued by the 2[nd] respondent-Revenue Divisional Officer (RDO), under the provisions of the Kerala Land Utilization Order (KLU Order for short). 2. The petitioners specifically content that the impugned conditions imposed in the Ext.P11 are ones that could have been imposed by the RDO only under the mandate of Section 27 (A) of the Kerala Conservation of Paddy Land and Wetland Act (herein after referred to as the “Paddy Land” for short); and that, going by the judgment of this Court in _**Geo Peter v.**_ _**Revenue Divisional Officer, Muvattupuzha and another**_ [2019(4)KHC 400] these conditions could not have been imposed in the said order. 3. The petitioners, however, concede **WP(C).No.30675 OF 2019 4** that they have preferred Ext.P16 Appeal against the said order before the 4[th] respondent-Commissioner for Land Revenue, but contends that in spite of this, this Court can intervene in Ext.P11 and issue appropriate orders going by the judgment of the Hon'ble Supreme Court in _**Calcutta**_ ## _**Credit Corporation Ltd. v. Happy Homes (P)**_ ## _**Ltd. [AIR 1968 SC 471].**_ 4. The learned Senior CounselShri.Gopinatha Menon, instructed by Shri.Jai Mohan - learned Counsel for the petitioners added to the afore by saying that merely because his clients had incorrectly approached the 4[th] respondent with a statutory appeal, it does not mean that this Court cannot exercise jurisdiction under Article 226 of the Constitution of India or that the petitioners cannot approach this Court in such fashion, particularly going by the afore cited Judgment; and they, therefore, **WP(C).No.30675 OF 2019 5** pray that, notwithstanding, the pendency of the statutory Appeal, Ext.P11 be set aside by this Court, since it runs completely contrary to the Judgment of this Court in _**Geo Peter (Supra** )_ . The learned Senior Counsel, therefore, prays that this writ petition be thus allowed. 5. The learned Special Government Pleader -Shri.Mohammed Anzar, appearing on behalf of the official respondents, submits that he is opposing this writ petition only to the extent of the petitioners' prayer that Ext.P11 be set aside and he says that this is not tenable, since they have voluntarily approached the 4[th] respondent- Appellate Authority by filing Ext.P16 Appeal. He says that all the grounds that have been raised in this writ petition have also been raised in the said Appeal and therefore, that the Commissioner can take a decision thereon as expeditiously as is possible, after hearing the parties. ## **WP(C).No.30675 OF 2019 6** 6. The learned Special Government Pleader further says that this will be beneficiary to the petitioners also since, if the Commissioner takes a view in their favour, they would not require to approach this Court again; but if it is to the contrary, they will obtain another opportunity of approaching this Court and seek appropriate orders. He adds that the challenge against Ext.P11 is also incompetent before the Court because, one of the conditions in Ext.P11, challenged by the petitioners in Ext.P16 Appeal, relates to the action against the building constructed before obtaining orders under the KLU Order. He, therefore, prays that this writ petition be dismissed. 7. Shri.N.M.Madhu-learned Counsel appearing for respondent No.5, submits that his client is the complainant before the RDO, which led to Ext.P11 Order and that this Court may not interdict the said ## **WP(C).No.30675 OF 2019 7** Order, because it has been issued for valid and cogent reasons. He says that, in any event of the matter, as rightly pointed out by the learned Special Government Pleader, this writ petition is not maintainable, since the petitioners have already invoked their alternative statutory remedies. **==> picture [327 x 10] intentionally omitted <==** submissions and also examined the materials available on records. 9. It is without doubt that the petitioners have approached this Court impugning Ext.P11, after they have invoked their remedies before the 4[th] respondent under the provisions of the Paddy Land Act. The question, therefore, is whether this Court must reject this writ petition solely because that the petitioners have invoked their alternative remedy or whether it would be still enjoined for this Court to consider the challenge against Ext.P11 at the first instance. ## **WP(C).No.30675 OF 2019 8** 10. Though I find some force in the afore recorded submissions of the learned Senior Counsel Shri.Gopinatha Menon, I am of the view that since the petitioners have approached the 4[th] respondent with a statutory Appeal even before approaching this Court, thereby making it clear that they intended to invoke their alternative remedy, I am of the view that even going by the afore cited judgment of the Hon'ble Supreme Court, it would be prudent for this Court to allow the said process to be completed, since the 4[th] respondent is also competent to consider whether the conditions imposed in Ext.P11 are as per the judgment of this Court in _**Geo Peter**_ ## _**(Supra).**_ 11. That said, I must say that, _prima_ _facie_ , going by _**Geo Peter (Supra)**_ , the conditions imposed in Ext.P11 requires to be carefully looked into by the competent Authority, particularly because the ## **WP(C).No.30675 OF 2019 9** application made by the petitioners under the provisions of the KLU Order is stated to be on 07/04/2017, being much before the date on which Section 27 (A) of the Paddy Land Act was brought into force. I choose to say no further, since I am certain that the 4[th] respondent will consider these aspects also while disposing of Ext.P16 statutory Appeal in terms of law. Resultantly, I order this writ petition and direct the 4[th] respondent to take up Ext.P16 Appeal of the petitioners and dispose of the same, specifically adverting to the observations and conclusions of this Court in _**Geo Peter**_ _**(Supra)**_ and also in Ext.P13 judgment; and issue necessary Orders thereon after hearing both sides. **==> picture [327 x 13] intentionally omitted <==** issue expeditious orders in terms of this judgment, I direct the petitioners and the 5[th] respondent to mark appearance in the ## **WP(C).No.30675 OF 2019 10** office of the 4[th] respondent at 11.00 a.m on 29/11/2019, on which day, the said Authority will hear them; or if there is any unavoidable contingency, another convenient date will be fixed, on which day the hearing will be completed, leading to a final order on Ext.P16, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. Needles to say, until such time as the afore exercise is completed, all further action pursuant to Ext.P11 will stand deferred and will be taken forward only depending upon the decision to be taken by 4[th] respondent in terms of this judgment. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** **MC/22.11.19** **WP(C).No.30675 OF 2019 11** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE RELEVANT EXTRACTS OF THE DATA BANK PREPARED UNDER THE 2008 ACT.** **EXHIBIT P1 A TRUE COPY OF THE EXTRACT OF THE REPORT SHOWING THAT SURVEY NUMBERS 347, 350, 351 AND 352 BE EXCLUDED FROM THE DATA BANK CERTIFIED BY THE AGRICULTURAL FIELD OFFICER, IRINJALAKUDA.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 07/04/2017 MADE BY THE 1ST PETITIONER TO THE REVENUE DIVISIONAL OFFICER, TRISSUR.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 14/06/2017 IN WRIT PETITION (CIVIL) NO.19697 OF 2017.** **EXHIBIT P4 TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4/8/2017 IN RESPECT OF THE 90 CENTS OF PROPERTY OF THE 2ND PETITIONER IN SY.NO.350/1 IN IRINJALAKUDA VILLAGE.** **EXHIBIT P4 A TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4/8/2017 IN RESPECT OF THE 63 CENTS OF PROPERTY OF THE 4TH PETITIONER IN SY.NO.350/1 IN IRINJALAKUDA VILLAGE. EXHIBIT P4 B TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4/8/2017 IN RESPECT OF THE 1 ACRE OF PROPERTY OF THE 3RD PETITIONER IN SY.NO.350/1 IN IRINJALAKUDA VILLAGE.** **EXHIBIT P4 C TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4/8/2017 IN RESPECT OF THE 38 CENTS OF PROPERTY OF THE 5TH PETITIONER IN SY.NO.350/1 IN IRINJALAKUDA VILLAGE.** **EXHIBIT P4 D TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4/8/2017 IN RESPECT OF THE PROPERTY OF PETITIONERS 1 TO 4 IN SY.NO.352/3 IN IRINJALAKUDA VILLAGE.** **EXHIBIT P4 E TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4/8/2017 IN RESPECT OF THE 63 CENTS OF PROPERTY OF THE 1ST PETITIONER IN SY.NO.351 IN IRINJALAKUDA VILLAGE.** **WP(C).No.30675 OF 2019 12** **EXHIBIT P4 F TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4/8/2017 IN RESPECT OF THE 81 CENTS OF PROPERTY OF THE 1ST PETITIONER IN SY.NO.352/5 IN IRINJALAKUDA VILLAGE.** **EXHIBIT P4 G TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4/8/2017 IN RESPECT OF THE 90 CENTS OF PROPERTY OF THE 1ST PETITIONER IN SY.NO.350/1 IN IRINJALAKUDA VILLAGE. EXHIBIT P5 TRUE COPY OF THE REPORT OF THE ADDL. TAHSILDAR DATED 29/04/2017 IN FILE NO.B55895/17. EXHIBIT P5 A TRUE COPY OF THE REPORT OF THE ADDL. TAHSILDAR DATED 29/04/2017 IN FILE NO.B55896/17. EXHIBIT P5 B TRUE COPY OF THE REPORT OF THE ADDL. TAHSILDAR DATED 29/04/2017 IN FILE NO.B55897/17. EXHIBIT P5 C TRUE COPY OF THE REPORT OF THE ADDL.TAHSILDAR DATED 29/04/2017 IN FILE NO.B5-5898/17. EXHIBIT P5 D TRUE COPY OF THE REPORT OF THE ADDL.TAHSILDAR DATED 29/04/2017 IN FILE NO.B5-5899/17. EXHIBIT P5 E TRUE COPY OF THE REPORT OF THE ADDL.TAHSILDAR DATED 29/04/2017 IN FILE NO.B5-5900/17. EXHIBIT P6 TRUE COPY OF THE REPORT DATED 03/11/2017 FILED BY ADDL. TAHSILDAR BEFORE THE 2ND RESPONDENT. EXHIBIT P7 TRUE COPY OF THE ORDER NO.6657/2017/B2/K.DIS. DATED 21/12/2017 ISSUED BY THE SUB COLLECTOR. EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 09/04/2018 IN WRIT PETITION (CIVIL) NO.5503 OF 2018. EXHIBIT P9 TRUE COPY OF THE REPORT DATED 09/10/2018 ISSUED BY THE AGRICULTURAL OFFICER. EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 25/10/2018 IN WRIT PETITION (CIVIL) NO.34357 OF 2018. EXHIBIT P11 TRUE COPY OF THE ORDER DATED 27/02/2019 ISSUED BY THE 2ND RESPONDENT BEARING NO.B2-** ## **WP(C).No.30675 OF 2019 13** **6557/2017 TO THE 1ST PETITIONER.** - **EXHIBIT P12 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT DATED 25/09/2017 IN WRIT PETITION (CIVIL) NO.7622 OF 2017.** **EXHIBIT P13 TRUE COPY OF THE JUDGMENT OF THE HON'BLE DIVISION BENCH OF THE HIGH COURT OF KERALA DATED 18/12/2017 IN WRIT APPEAL NO.2326 OF 2017.** - **EXHIBIT P14 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT DATED 27/04/2018 IN SLP NO.9753/2018.** - **EXHIBIT P15 TRUE COPY OF THE LETTER DATED 16/02/2019 ISSUED BY THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM TO THE SECRETARY, IRINJALAKUDA MUNICIPALITY.** - **EXHIBIT P15 A TRUE COPY OF THE LETTER DATED 18/03/2019 BEARING NO.BA/206/09-10 ISSUED BY THE IRINJALAKUDA MUNICIPALITY TO THE MCP CONVENTION CENTRE.** - **EXHIBIT P16 TRUE COPY OF THE APPEAL DATED 03/04/2019 UNDER CLAUSE 11 OF THE KLU ORDER PREFERRED BY THE 1ST PETITIONER AGAINST THE IMPUGNED ORDER DATED 27/02/2019 ISSUED BY THE 2ND RESPONDENT BEARING NO.B2-6675/2017.** - **EXHIBIT P16 A TRUE COPY OF THE RECEIPT NO.14480/A4/2019 DATED 08/04/2019 EVIDENCING THE RECEIPT OF THE APPEAL.** - **RESPONDENT'S/S EXHIBITS:** **NIL** **MC** **(TRUE COPY) PA TO JUDGE**