Nazeer M.K. s/o Aboobacker v. Thalassery Municipality and others

## **(C.R.)** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY ,THE 17TH DAY OF DECEMBER 2018 / 26TH AGRAHAYANA, 1940** ## **WP(C).No. 7789 of 2018** ## **PETITIONER/S:** **NAZEER M.K. S/O ABOOBACKER, AGED 49 YEARS,KM HOUSE, NARANGAPURAM, THALASSERY** **BY ADV. SRI.ASHWIN SATHYANATH** ## **RESPONDENT/S:** - **1 THE THALASSERY MUNICIPALITY REPRESENTED BY TIS SECRETARY, THALASSERY, KANNUR DISTRICT-670 101** - **2 THE SECRETARY THE THALASSERY MUNICIPALITYTHALASSERY, KANNUR DISTRICT-670 101** - **3 THE DISTRICT COLLECTOR KANNUR- 670 002** - **4 THE TAHSILDAR TALUK OFFICE, THALASSERY- 670 101** - **5 THE VILLAGE OFFICER THALASSERY - 670 101** **BY ADV. GOVERNMENT PLEADER OTHER PRESENT: SRI.I.V.PRAMOD FOR R1 AND R2, SRI.SAIGI JACOB PALATTY,SR.GOVT.PLEADER FOR R3 TO R5** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **(C.R)** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 7789 of 2018 ================== Dated this the 17[th] day of December, 2018 **J U D G M E N T** The prayers in the above Writ Petition (Civil) are as follows: - _“a) Call for the records of the case leading up to Exhibit P-8, P-9 and P-10 and quash all the same by issuing a writ of certiorari or any other appropriate writ, order or direction._ - _b) Pass an order staying the operation of Exhibit P-10 pending disposal of this Writ Petition (Civil)._ - _c) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 4[th] Respondent to allow Exhibit P-1 application of the petitioner before on Exhibit P-6 report and grant lease to the petitioner,_ - _and_ - _d) Pass any other appropriate writ, order or direction which this Hon'ble Court may deem fit to issue and the petitioner may pray from time to time.”_ 2. Heard Sri.Ashwin Sathyanath, learned counsel appearing for the petitioner, Sri.I.V.Pramod, learned counsel appearing for R-1 & R-2 and Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for R-3 to R-5. 3. The petitioner's application for assignment of land, which lies within the limits of respondent Thalassery Municipality, has now been rejected by the 4[th] the respondent Tahsildar as per the impugned Ext.P-9 proceedings dated 14.7.2017 on the basis of the stand taken by the 1[st] respondent Municipality in Ext.P-8 that the Municipality is not interested to grant lease to the petitioner. The relevant portion of the impugned Ext.P-8 letter dated 28.6.2017 issued by the 1[st] - : 3 :- W.P.(C).7789/18 ## respondent Thalassery Municipality reads as follows: _**"**_ **വ�ഷയ�** _**:-**_ **തലശ�ര� നഗരസഭ** _**-**_ **എഞ�ന�യറ��ഗ വ�ഭ�ഗ�** _**-**_ **ശ��** _**.**_ **നസ�ർ എ�** _**.**_ **ക�** _**.**_ **യ�ക� ല�സ** _**-**_ **സ�ബന�ച!** _**.**_ **സ"ചന** _**:- 1)**_ **ത�ങള&ക�** _**03 -11 -2016**_ **കല ഡ�** _**3 - 9539 /14 (2 )**_ **നമർ �ത!** _**.**_ - _**2)**_ **നഗരസഭ� �*ൺസ�ല�നകറ** _**20 -06 - 2017**_ **കല** _**15**_ **ആ� നമർ** _**.**_ - **ത�ര�മ�ന�** _**--------------------------------------3 6**_ **��** _**.**_ **സ** _**.**_ **തലശ�ര� അ��� വ���ക�� ശ1�ത! വ�ർഡ ശ3�ക!** _**255/1**_ **ൽ ക5ട** _**11.52**_ **ച** _**.**_ **മ�** _**.**_ **സല� ശ��** _**.**_ **നസ�ർ എ�** _**.**_ **ക�** _**.**_ **എനവർക! 5�ടത�ന അന�വ1�ക�നത�ന നഗരസഭയക! ത�ല5ര;� ഇകല=ന! സ"ചന** _**(2)**_ **ശ5��രമ�ള നഗരസഭ� �*ൺസ�ല�നകറ ത�ര�മ�ന� ത�ങകള ഇത�ന�ൽ** _**.”**_ **അറ�യ�ക�ന�** 4. The impugned Ext.P-9 proceedings issued by the 4[th] ## respondent Tahsildar reads as follows: _**"**_ **ശ��** _**.**_ **നസ�ർ എ�** _**.**_ **ക�** _**.,**_ **എ�** _**.**_ **ക�** _**.**_ **ഹ*സ** _**,**_ **ന�രങ�5�ര�** _**,**_ **തലശ�ര�** _**.**_ **മ�ന;ശര** _**,**_ **വ�ഷയ�** _**:-**_ **ഭ"മ� 5�ട�** _**-**_ **തലശ�ര� ത�ല"ക! തലശ�ര� അ��� വ���ക�� ശ1�കത വ�ർഡ** _**3**_ **ശ3�ക!** _**6**_ **��** _**.**_ **സ** _**. 255 / 1**_ **ൽ ക5ട ഭ"മ�** _**- -**_ **5�ടത�ന നൽ�ണകമന ത�ങള&ക� അശ5ക സ�ബന�ച!** **സ"ചന** _**:-**_ **തലശ�ര� മ�ന�സ�പൽ കസശ�ടറ�യ�ക�** _**28-06-2017**_ **ഇ** _**6-48218 /16**_ **നമർ �ത!** _**3, 6**_ **��** _**.**_ **സ** _**.**_ **തലശ�ര� അ��� വ���ക�� ശ1�കത വ�ർഡ ശ3�ക!** _**255/1**_ **ൽ ക5ട** _**11.52**_ **ച** _**.**_ **മ�** _**.**_ **സല� ത�ങൾക! 5�ടത�ന അന�വ1�ക�നത�ന നഗരസഭയക! എത�ർപ&കEന! സ"ചന ശ5��ര� തലശ�ര� നഗരസഭ� കസശ�ടറ� അറ�യ�ച�ട&E!** _**.**_ **ല�ൻഡ അസസൻകമൻറ ആകJ** _**1960**_ **കസകൻ** _**3 (2)**_ **ശ5��ര� തശK� സLയ� ഭരണ സ�5നങള&ക� അന�മത�യ�ല=�കത ഭ"മ� 5ത�ച& നൽ��നത�ശന� 5�ടത�ന� നൽ��നത�ശന� �ഴ�യ�ത അശ5ക 5ര�ഗണ�ക�ൻ സ�ഹചര;ത�ൽ ത�ങള&ക�** _**.**_ **ന�ർവ�ഹമ�കല=ന�ള വ�വര� അറ�യ�ക�ന�** **വ��Lസതതശയ�ക�** _**, "**_ **തഹസ�ൽ1�ർ** ## 5. Sec. 3(2) of the Kerala Government Land Assignment Act, 1960, reads as follows: ## _**“Sec.3: Assignment of Government Land.** (1)...._ - _(2) No Government land assignable for public purpose may be assigned_ W.P.(C).7789/18 - : 4 :- _under sub-section (1) without consulting the local authority as defined in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or the Kerala Municipality Act, 1994 (20 of 1994) as the case may be and if such local authority requires such land, for carrying out any of the functions assigned to it, Government may set apart such land for that purpose.”_ 6. From a reading of the provisions contained in Sec. 3(2) of the Kerala Government Land Assignment Act, 1960, it can be seen that no Government land assignable for public purpose may be assigned under sub-section (1) without consulting the local authority as defined in the Kerala Panchayat Raj Act, 1994 or the Kerala Municipality Act, 1994 as the case may be and if such local authority requires such land for carrying out any of the functions assigned to it, Government may set apart such land for that purpose, etc. 7. A reading of the impugned Ext.P-8 letter issued by the 1[st] respondent would indicate that all what has been stated therein is that the Municipality has no interest in the matter of grant of lease in favour of the petitioner, in terms of the provisions contained in the Act and the Rules framed thereunder. Other than merely stating that the 1[st] respondent Municipality has no interest in granting lease in favour of the petitioner, no substantive objection has been stated by the Municipality. It is not even remotely suggested that the land in question is required for the public purposes of the 1[st] respondent Municipality. In spite of the abovesaid stand taken by the 1[st] respondent W.P.(C).7789/18 - : 5 :- Municipality in Ext.P-8, the 4[th] respondent Tahsildar would venture to hold in the impugned Ext.P-9 order that he is not in a position to accede to the request of the petitioner for lease of land in terms of the provisions contained in the abovesaid Act and Rules on the ground that the 1[st] respondent Municipality has objected to the said request of the petitioner. Further he would venture to hold that without the permission of the 1[st] respondent Municipality, the 4[th] respondent, who is the statutory functionary under the Act and Rules, is not in a position to concede to the request of the petitioner. Under the provisions contained in Sec. 3(2) of the Act, all what is required is that there should be effective consultation made by the 4[th] respondent with the 1[st] respondent Municipality. 8. It has been held by the Apex Court and various High Courts in a catena of rulings that “ _consultation_ ” cannot be equated with “ _concurrence_ ” and it has been held that what is to be fulfilled in the process of “ _consultation_ ” is that all relevant materials and inputs should be conveyed by the decision maker to the consultee so as to ascertain the considered views of the consultee in the matter and that “ _consultation_ ” cannot necessarily mean “ _concurrence_ ” and that the decision maker has the discretion to take into account all the relevant W.P.(C).7789/18 - : 6 :- aspects of the matter including the considered opinion of the consultee so as to take an independent view of the matter and it may not necessarily be in consonance with the views of the consultee. 9. One of the classic decisions on the point is the one rendered in _**Pushpam v. State of Madras**_ , reported in AIR 1953 Mad. 392, where His Lordship Subba Rao, J. (as His Lordship then was) held that width of consultation would vary from case to case and that though consultation cannot be limited to formal correspondence, it cannot be upgraded to concurrence, either. In _**Chandra Mouleshwar Prasad v. Patna High Court**_ (AIR 1970 SC 370 - Para 7), the Apex Court pointed out that consultation does not necessasrily mean that the consultor should accept the views of the consultee and if an appointment was made without getting the views of the consultee, then the process of consultation would not be complete, etc. In this connection, the Madras High Court has held in _**R.Pushpam's case**_ supra reported in AIR 1953 Mad.392 as follows: _'The word "consult" is so familiar that it often eludes the grasp of easy and exact definition. In the Law Lexicon by P. Ramanatha Aiyar it is stated as follows:_ _"Consultations always require two persons at least; deliberations may be carried on either with a man's, self or with numbers; an individual may consult with one or many; assemblies commonly deliberate; advice and information are given and received in consultations; doubts, difficulties,_ W.P.(C).7789/18 - : 7 :- _and objections are stated and removed in deliberations. Those who have to co-operate must frequently consult together; those who have serious measures to decide upon must coolly deliberate"._ _The word "consult" was subject of a judicial scrutiny in -- 'Fletcher v. Minister of Town Planning', 1947-2-A11 E.R. 496. The question arose in connection with an application taken out for quashing the order made by the Minister for Town and County Planning. The Minister designated an area of land as the site of a proposed new town. It was contended that the requirements of the New Towns Act, 1946, had not been complied with in relation to the making of the order, in that there was no "consultation" within the meaning of Section 1(1) of the Act between the Minister and the Local authorities before the making of the order designating the area of land in question as the site of the proposed new town. On the facts the learned Judge held that there was the requisite consultation; but in dealing with the question, at page 500, the learned Judge observed:_ _"The word 'consultation' is one that is in general use find that is well understood. No useful purpose would, in my view, be served by formulating words of definition. Nor would it be appropriate to seek to lay down the manner in which the consultation must take place. The Act does not prescribe any particular form of consultation. If a complaint is made of failure to consult, it will be for the Court to examine the facts and circumstances of the particular case and to decide whether consultation was, in fact, held. Consultations may often be a somewhat continuous process and the happenings at one meeting may form the background of a later one"._ _It is clear from the aforesaid observations that the Court will have to scrutinise in each case whether the requisite consultation has taken place, having regard to the substance of the events. The word "consult" implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. It is necessary that the consultation shall be directed to the essential points and to use core of the subject involved in the discussions. The consultation must enable the consuitor to consider the pros and cons of the question before coming to a decision. A person consults another to be elucidated on the subject-matter of the consultation. A consultation may be between an uninformed person and an expert or between two experts. A patient consults a doctor; a client consults his lawyer; two lawyers or two doctors may hold consultations between themselves. In either case the final decision is with the consultor, but he will not generally ignore the advice except for good reasons. So too in the case of a public authority. Many instances may be found in statutes when an authority entrusted with a duty is directed to perform the same in consultation with another authority which is qualified to give advice in respect of that duty. It is true that the final order is made and the ultimate responsibility rests with the former_ W.P.(C).7789/18 - : 8 :- _authority. But it will not, and cannot be, a performance of duty if no consultation is made, and even if made, is only in formal compliance with the provisions. In either case the order is not made in compliance with the provisions of the Act. Having regard to the aforesaid observations let me now consider the correspondence which ended in the order made by the Government.”_ 10. The celebrated decision of the Apex Court in _**S. P. Gupta**_ _**& Ors. v. President of India & Ors.**_ (AIR 1982 SC 149) is a landmark judgment on the subject and therein, the Apex Court has enumerated the various requirements of consultation and that the points of view of one authority should be made known to the other and after consideration of the full facts, a decision must be taken and the views of the consultee are more in the nature of recommendations or suggestion, and it has no compelling character and the consultative process will not be vitiated by non-acceptance of the views of the consultee, provided non-acceptance was preceded by full consideration, etc. It will be profitable to refer to relevant paragraphs 28, 29, 86 and 626 of the abovesaid decision of the Apex Court in ## _**S.P.Gupta's case**_ supra, which read as follows: ## In paragraphs 28 & 29, the court said: _“Who has the final voice in the appointment of Judges..... it is the President, which in effect and substance means the Central Government........ The Chief justice of India and the Chief Justice of the High Court, and such other Judges of the High Court and of the Supreme Court as the Central Government may deem it necessary to consult, are merely constitutional functionaries having consultative role and the power of appointment resides solely and exclusively in the Central Government...........It would therefore be open to the Central Government to over-ride opinion given by the constitutional functionaries required to_ W.P.(C).7789/18 - : 9 :- _be consulted and arrive at its own decision in regard to the appointment of a Judge of the High Court or Supreme Court, so long as such decision is based on relevant consideration and is not malafide...........”_ (emphasis supplied) ## In paragraph 86 of the above said decision, the court stated: _“Article 227 does not require that any particular procedure should be followed for full and effective consultation, nor does it insist that the relevant facts on which the final decision of the Central Government is based should be conveyed to the other three constitutional functionaries in any particular manner........What is necessary to ensure full and effective consultation within the meaning of Article 217 is, that the Central Government as well as each of the three constitutional functionaries, must have for its consideration, full and identical facts which can at once constitute both the source and foundation of the final decision, and it is immaterial as to how such full and identical facts are conveyed.........It is sufficient compliance...........if the self same facts on which the final decision is taken by the Central Government are placed before each of the three constitutional functionaries.........”._ ## In paragraph 626, it was stated: _“Scope and ambit of full and effective consultation requires that all material facts must be made available to both these consulting functionaries, by placing the same before each during consultative process, and that each consulting functionary must consider the same or identical material and exchange one’s views thereon with each other”._ 11. Reference in this connection would also be profitable to the decision rendered by this Court (His Lordship Justice Chettur Sankaran Nair) in _**Sundaresan Nair v. State of Kerala**_ reported in 1991 (1) KLT 361. Paragraphs 19, 21 to 25 of the abovesaid decision read as follows: _'19. This is so. As for consultation, the consultee and the consultor conferred on the full facts and identical material, though they did not agree. Agreement is not a concomitant of consultation. S.4 of the Act does not indicate preferences among different classes of eligible categories. It only supports alternatives, and not priorities. It is not possible to accept the submission made by petitioner that there is a hierarchy of classes, and that to reject one class, reasons must be stated, or that to prefer another class, reasons must be stated. On the plain language of the Section, it is not possible to read preferences into it. The_ W.P.(C).7789/18 - : 10 :- _decision in Union of India v. J.P. Miner (AIR 1971 SC 1093) also is to the effect that the President must make all the facts available for consideration by the consultee. A discussion across the table or evaluation of the pros and cons of a proposal, is not contemplated by the process of consultation. The next case referred to by both sides is Union of India v. Sankal Chand Himmatlal Sheth (AIR 1977 SC 2328). Paragraphs 37,41,63 and 102 were read in extenso by counsel on both sides. The Supreme Court stressed the need for effective consultation and consideration of the entire material by the consultor and consultee, with reference to each other’s view. But, concurrence is not contemplated and it was held that “they may confer, but may not concur”._ _xxx xxx_ _21. Shri K.K. Venugopal pointed out that the Chief Minister had not stated any reasons for not accepting the views of the Chief Justice. He also submitted that the Chief Minister did not even respond to the offer made by the Chief Justice to find sitting Judges for the Commission. He would also say that even the courtesy of a reply, was not extended by the Chief Minister to seventh respondent. The Attorney General in answer would submit that the power exercised by the Chief Minister is not in the nature of a quasi judicial power, and that there is no requirement of stating reasons. The only duty was to consider the views of the consultees and this the Chief Minister did, though he did not concur. In the light of the decision in S.P. Gupta’s case, no more is needed according to the Attorney General. The argument of Shri. K.K. Venugopal that there was no application of mind cannot be accepted, according to the Attorney General. A high functionary like the Chief Minister, must be credited atleast with reading and understanding the views of seventh respondent and the Chief Justice, submits Attorney General. It is true that the Chief Minister did not avail of the good offices of the Chief Justice, which he offered. He turned the Nelson’s eye to this. One may legitimately infer that the Chief Minister was not interested in that direction, and that he was keen on following his own inclinations. As no degree of interaction, except by way of advertence, is postulated, even this attitude of the Chief Minister will not justify a finding that consultation was not complete. In the light of S.P. Gupta’s case, wherein it is stated that the final word is with the consultor, and that the role of the other functionaries is only consultative, leaving it open to the consultor ‘to over-ride the opinion’ of the consultees, it has to be held that there was consultation. There is no need to state reasons or answer the objections. There is no legal litmus test to ascertain the reasons that weighed with the Chief Minister, and it is not necessary either, so long as malafides do not taint the process. Disagreement cannot be understood as non-application of mind. Whether the Chief Minister would have profited by accepting the views of the Chief Justice based on very valid considerations, or whether he should not have extended the courtesy of writing to the Leader of Opposition, are matters of opinionThe further argument of Shri. K.K. Venugopal is that a more meaningful consideration is required in a situation where the Act confers vast powers on the Commission - a power virtually to interfere with the_ W.P.(C).7789/18 - : 11 :- _functioning of democratic or political institutions. Attractive though, the argument does not commend acceptance in the light of the specific requirements of consultation enumerated in S.P. Gupta’s case. A conference of minds on identical material is all that is contemplated. Nothing more in the nature of a further dialogue, or an interaction of a degree is not envisioned._ _22. It is clear from the correspondence that the view of each was available to the other on the question whether retired or sitting Judges were to be appointed. There was elaborate exchange of views. It is true that as far as the suitability of the personnel was concerned, the views of the Chief Justice were not expressed. But, as the Attorney General submitted, as long as their suitability or integrity is not challenged, there is no need for further deliberation or exchange of views. In this context, the Attorney General again referred to paragraph 656 to 661 in S.P. Gupta’s case (judgment of Tulzapurkar, J. disagreeing with the majority), and pointed out that even in a situation where the views of the Chief Justice of the Delhi High Court were held back from the Chief Justice of India, the Supreme Court found the requirements of consultation satisfied. The Supreme Court held that there was no primacy in the case of one of the consultees, and that the last word rested with the executive Government. Hence, the Attorney General submit ted that this court cannot go beyond and read the requirement of a more elaborate consultation, or a fuller exchange of views regarding suitability of the personnel. If there were allegations of bias or unsuitability against the personnel, I should have thought that a further probe is required into the question of malafide exercise of power -more so when the specific views of the Chief Justice were not ascertained on the question of suitability. There are no such allegations, and the matter must be left at that._ _23. Shri. K.K. Venugopal would submit that the sense of urgency pleaded by the Chief Minister in his letter dated 7-10-1989 to the Chief Justice was no more than a pretence, and that if he could wait from 2-11-89 till 16-2-1990 to answer the Governor, the dimension of urgency was not in the Chief Minister’s mind. Governor Sinha wrote to the Chief Minister on 2-11-1989 and sent a reminder on 15-1-1990. More than two months had elapsed before there was response from the Chief Minister, and that too after the then Governor laid down office. The Attorney General would say that it was only a matter of lapse on the part of the Chief Minister, or at worst discourteous conduct. Discourteous, indeed it is. The response of the Chief Minister, if at all was in very low key. The letter of the Chief Minister to the Chief Justice dated 25-12-1989, states:_ _“Certain opinions expressed about them (probably by seventh respondent in Ext. P3) were with a particular motive to stall these proceedings.............Therefore, opinions expressed to stall the proceedings should be ignored”._ _(emphasis supplied)_ _The response did not bear the veneer one should have expected. The sense of urgency was not that real as expressed. Be that as it may, it is_ W.P.(C).7789/18 - : 12 :- ## _not sufficient to sustain a plea of malafides._ _24. Consultation is an expression understood, though not defined in the Constitution, or the Act. It implies a meeting of minds, open to persuasion and it envisions a situation where each considers the point of view of the other. Yet, consultation is not concurrence. The authorities may confer, but differ The only requirement is that a decision must be taken, after all the authorities confer in mind on the total facts, after each of the consultees furnishes relevant facts and answers relevant quarries. The idea is to help the deciding authority to reach a wholesome conclusion after considering the views of the different functionaries. The different functionaries bring their knowledge and expertise, and a shared decision - shared in the sense of full consideration of all the views - is to be reached. The Chief Minister holds an important position in a democratic set up. The Leader of Opposition represents a group which is to act as a check and balance, putting forward healthy criticism and informing the Government of another point of view. The Chief Justice by reason of his eminent position, background and training, apart from his personal endowments, is competent to judge suitability of a person for a judicial post. If the functionaries expressed their views to each other and a decision is taken, such decision is valid in the light of the principles laid down by the Supreme Court. A decision is to be taken not on the basis of any single point of view, but on a consideration of every single point of view. It is not a matter of form, but of substance. The minds must meet through expression, elucidation and consideration. If not, they meet in form, and not in substance._ _25. In the instant case, as far as the question whether sitting or retired Judges should be chosen, there was a full and complete exchange of views. As far as the personnel were concerned, the views of the Chief Justice were not available, and the Leader of Opposition expressed himself against the choice indicated by the Chief Minister. One might be left with the impression that the views elegantly articulated by the Chief Justice and the sound principles put-forward by him, should have received better consideration. Whether the core question relating to the suitability of the personnel had been viewed in the best possible manner, is a matter of doubt. The Chief Minister could have specifically requested the Chief Justice for his views on the three persons, notwithstanding the fact that he had reserved his views until the other aspects were clarified. However, the Attorney General would submit that the Chief Justice not having expressed himself against the three persons, the Chief Minister was entitled to think that consultation was complete. He would also say that there is no justification for probing further, when it is the clear case of petitioner and seventh respondent that they have nothing to allege against the Chairman or Members of the Commission, by way of bias or unsuitability. The Supreme Court in S.P. Gupta’s case, in no uncertain terms stated that ‘the final choice’ is with the consulter, that the other constitutional authorities hold no place of ‘primacy’, and that they hold ‘merely a consultative role’. The unambiguous expression of view that consultor has the power to_ W.P.(C).7789/18 - : 13 :- _override, cannot be missed. Therefore, it has to be held that there was consultation. At least, it is not possible to say that consultation was inadequate.'_ 12. Now coming to the instant case, it can be seen that the fact finding made by the 4[th] respondent Tahsildar in Ext.P-9 that the 1[st] respondent Municipality has objected to the grant of lease to the petitioner as per Ext.P-8 is also factually wrong and what has been conveyed by the 1[st] respondent in Ext.P-8 is that the said authority is not interested in granting lease to the petitioner. That apart, the 4[th] respondent would further take the extreme stand that though he is the statutory decision maker, he would hold that without prior permission of the 1[st] respondent Municipality, who is only the consultee, he is not in a position to consider and grant the request of the petitioner. Nothing could be more in violation of the mandate of the Act and the Rules. All what is required by the 4[th] respondent is to take into account the considered views of the 1[st] respondent Municipality and take a considered decision in the matter. Of course, if the 1[st] respondent Municipality has a case that the land in question is meant to be used for one of the specific purposes of the Municipality, then things could stand on a different footing. That indeed is not the factual position in the instant case. The 1[st] respondent Municipality has not even remotely demanded in Ext.P-8 W.P.(C).7789/18 - : 14 :- that the said authority requires the land in question for any of the enumerated public purposes. Therefore, the impugned Ext.P-9 is vitiated for taking into account irrelevant aspects and not taking into account relevant aspects of the matter. Pursuant to Ext.P-9 now the petitioner has been ordered to be evicted from the land in question as per the impugned Ext.P-10 proceedings. In the light of the abovesaid aspects, it is ordered that the impugned Ext.P-9 proceedings is vitiated and would require judicial interdiction. Accordingly, Ext.P-9 order will stand set aside and the matter will stand remitted to the 4[th] respondent for consideration of the matter afresh. Consequently Ext.P-10 eviction proceedings will also stand set aside. The 4[th] respondent will grant a reasonable opportunity of being heard to the petitioner and will take a considered as to whether land assignment is to be made in favour of the petitioner. Of course the view of the Municipality that it is not interested in granting the land in favour of the petitioner may also be taken into account. But the said stand of the Municipality in Ext.P-8 cannot be understood as one containing a specific objection of the 1[st] respondent Municipality or that the Municipality requires the land in question for any of the public works of that Municipality. After granting a reasonable opportunity of being W.P.(C).7789/18 - : 15 :- heard to the petitioner, appropriate independent decision may be taken by the 4[th] respondent Municipality without much delay, preferably within a period of 2 months from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. sdk+ ## Sd/- **ALEXANDER THOMAS, JUDGE** _The word_ _**“Municipality”** occurring in the 15[th] page of the judgment dated 17/12/2018 in W.P(C) No. 7789/2018 is corrected and substituted as_ _**“Tahsildar”** as per order dated 06/03/2019 in I.A No. 1/2019 in W.P(C) No. 7789/2018._ _Sd/-_ _Joint Registrar._ W.P.(C).7789/18 - : 16 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE APPLICATION FOR LEASE OF GOVERNMENT LAND FILED BY THE PETITIONER DATED NIL** **EXHIBIT P2 TRUE COPY OF THE LETTER DATED 22-09-2014 WRITTEN BY THE 5TH RESPONDENT TO THE 4THR RESPONDENT** - **EXHIBIT P3 TRUE COPY OF THE CORRESPONDENCE DATED 29-092014 ADDRESSED TO THE TALUK SURVEYOR BY THE 4TH RESPONDENT** **EXHIBITP4 TRUE COPY OF THE REPORT OF THE TOWN SURVEYOR DATED 17-09-2015 ALONG WITH THE SKETCH** - **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 30-09-2015 ADDRESSED TO THE 5TH RESPONDENT BY THE 4TH RESPONDENT** - **EXHIBITP6 TRUE COPY OF THE REPORT DATED 23-06-2016 ALONG WITH THE DOCUMENTS SUBMITTED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT** - **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 02-11-2016 ADDRESSED TO THE 2ND RESPONDENT BY THE 4TH RESPONDENT** - **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 28-06-2017 ADDRESSED TO THE 4THR RESPONDENT** - **EXHIBITP9 TRUE COPY OF THE LETTER ADDRESSED TO THE PETITIONER DATED 7-7-2017 REJECTING 3EXHIBIT P1 APPLICATION BY THE 4THR RESPONDENT** - **EXHIBITP10 TRUE COPY OF THE LETTER OF THE 4TH RESPLENDENT ADDRESSED TO THE 5TH RESPONDENT DATED 14-072017**