P.A. THOMAS THARAKAN v. TALUK LAND BOARD CHERTHALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942** ## **WP(C).No.4633 OF 2020(D)** ## **PETITIONER:** **P.A.THOMAS THARAKAN AGED 74 YEARS S/O. ABRAHAM THARAKAN, HOUSE NO.60, CHOICE PARK, PERANDOOR ROAD, COCHIN - 682 026** **BY ADVS.** **SRI.MATHEW JOHN (K) SRI.MATHEW DEVASSI SRI.ABY J AUGUSTINE** ## **RESPONDENTS:** - **1 THE TALUK LAND BOARD CHERTHALA** - **2 THE TAHSILDAR ERNAD TALUK, ERNAD, MALAPPURAM DISTRICT** - **3 THE VILLAGE OFFICER MAMBAD VILLAGE, MAMBAD, ERNAD TALUK** - **4 THE REVENUE DIVISIONAL OFFICER ALAPPUZHA R1-4 BY GOVERNMENT PLEADER SRI JAFAR KHAN Y.- SPL GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)No.4633 of 2020 2 ## **JUDGMENT** The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 4[th] respondent Revenue Divisional Officer, Alappuzha, to pass final orders on Ext.P1 application filed under sub-section (8) of Section 85 of the Kerala Land Reforms Act, to set aside the order in TLB 30/Shy, without any further delay. The further relief sought for is a writ of mandamus commanding the 3[rd] respondent Village Officer to accept land tax with respect to 5.10 Acres of land owned and possessed by the petitioner and his three brothers, vide document Nos.1189, 1190 and 1197 of the Sub Registrar Office, Nilambur. 2. On 01.07.2020, when this writ petition came up for admission, notice before admission was ordered to the respondents. The learned Government Pleader took notice for respondents 1 to 4. 3. On 11.08.2020, when this writ petition came up for consideration, this Court passed the following order; “When the matter was taken up, the learned Government WP(C)No.4633 of 2020 3 Pleader has made available the statement of the Chairman, Taluk Land Board, Cherthala. The relevant portion reads thus; “The Tahasiladar, Nilambur here reported that the declarant Sri.P.A.Geroge Tharakan had submitted a revised option for surrendering their 5.9275 Acres of land in Pullipadam Village in Nilambur Taluk in lieu of the land in Mambad Village and also informed that there is no legal hindrance in receiving the land tax of the properties comprised in Survey number 362/3, 362/4 in Mambad Village. In the circumstances it is informed that there is no legal restrictions to accept the property tax of the land in Survey number 362/3, 362/4 of Sri.P.A.Thomas Tharakan and his 3 brothers by virtue of the document No.1189, 1190, 1197 of the SRO Nilabur.” 2. This would satisfy relief No.(ii) sought for by the petitioner in this writ petition. In that view of the matter, the 3[rd] respondent shall proceed to accept property tax in terms of the directions above. 3. The learned Government Pleader shall get specific instructions as to the reasons which prevent the 4[th] respondent in passing final orders on Ext.P1 application.” 4. On 27.01.2021, when this writ petition came up for further consideration, the learned Government Pleader, on instructions, submitted that, in case the petitioner approaches WP(C)No.4633 of 2020 4 the 3[rd] respondent on that day (27.01.2021), he will be permitted to remit the land tax in respect of the property in Mambad Village. The learned counsel for the petitioner submitted that the petitioner shall approach the 3[rd] respondent on that day itself. 5. The 4[th] respondent Revenue Divisional Officer, who is holding charge of the Chairman of the 1[st] respondent Taluk Land Board has filed a statement dated 23.01.2021. Paragraphs 3 and 4 of that statement read thus; “3. It is submitted that the petitioner has stated in the writ petition, that on account of some clerical mistake, Sri.P.A.George Tharakan was required to surrender an extent of 8.04575 Acres of land and it is without notice to the petitioner and his three brothers, who are the brothers of P.A.George Tharakan. According to the petitioner, his brothers have filed Ext.P1 application under Section 85(8) of the Kerala Land Reforms Act before the 1[st] respondent Taluk Land Board. 4. During the pendency of the above writ petition, this Honourable Court passed an interim order dated 11.08.2020, and the Government Pleader was directed to get instructions as to the reasons, which prevent the 4[th] respondent in passing final orders on Ext.P1 application. This respondent has already issued a hearing notice dated 18.01.2021 to the petitioner to conduct a personal hearing WP(C)No.4633 of 2020 5 on 28.01.2021 at 03.00 PM at the office of the Taluk Land Board, Alappuzha. A true copy of the notice dated 18.01.2021 issued to the petitioner is produced herewith and marked as Annexure-R4(a). This respondent will conduct a reasonable opportunity of hearing on 28.01.2021 and a decision will be taken after considering the contentions of the petitioner in accordance with law. This respondent requires three months more time to take a final decision in the above mater. It is therefore, humbly prayed that this Honourable Court may be pleased to grant three months more tie to finalise the proceedings in TLB 30/Chla on the files of Taluk Land Board, Cherthala.” 6. Heard the learned counsel for the petitioner and also the learned Special Government Pleader appearing for the respondents. 7. The learned counsel for the petitioner would submit that the petitioner has already been permitted to remit land tax in respect of the property in Mambad in terms of the order of this Court dated 27.01.2021 and now, what remains for consideration in this writ petition is, consideration of Ext.P1 application made under sub-section (8) of Section 85 of the Kerala Land Reforms Act, by the 4[th] respondent Revenue Divisional Officer. The learned WP(C)No.4633 of 2020 6 counsel for the petitioner would point out that in Ext.P2 judgment dated 11.07.1994 in O.P.No.9398 of 1994, this Court noticed the pendency of Ext.P1 application before the 1[st] respondent Taluk Land Board. 8. The learned Special Government Pleader, on instructions, would submit that the 4[th] respondent Revenue Divisional Officer, who is the Chairman in-charge of the 1[st] respondent Taluk Land Board, will consider and pass appropriate orders on Ex.P1 application, if that application is in order and still pending consideration, within a time limit to be fixed by this Court. The 4[th] respondent Revenue Divisional Officer, who is holding charge of the Chairman of the 1[st] respondent Taluk Land Board, has already issued Ext.R4(a) notice. 9. The learned counsel for the petitioner would submit that considering the fact that the petitioner is aged more than 74 years, the 4[th] respondent may be directed to conduct a personal hearing through video conferencing, before taking a decision on Ext.P1 application. 10. Having considered the submissions made by the WP(C)No.4633 of 2020 7 learned counsel on both sides, this writ petition is disposed of directing the 1[st] respondent Taluk Land Board to consider and pass appropriate orders on Ext.P1 application filed under subsection (8) of Section 85 of the Kerala Land Reforms Act, if that application is in order, with notice to the applicants therein, the petitioner herein and other affected parties, and after affording them an opportunity of being heard, through video conferencing, within a period of three months from the date of receipt of a certified copy of this judgment. 11. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. WP(C)No.4633 of 2020 8 12. Therefore, in terms of the direction contained in this judgment, the 1[st] respondent Taluk Land Board shall take an appropriate decision in the matter, strictly in accordance with law, taking note of the relevant statutory provisions and also the law on the point. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** WP(C)No.4633 of 2020 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE APPLICATION FILED BY P.A. ANTONY THARAKAN DATED 28.6.1994 BEFORE THE 1ST RESPONDENT** **EXHIBIT P2 A TRUE COPY OF THE JUDGMENT IN O.P. NO.9398 OF 1994 DATED 11.7.1994** **EXHIBIT P3 TRUE COPY OF THE WRITTEN APPLICATION DATED 29.09.2020 ENCLOSING THE AUTHENTICATED COPY OF THE INTERIM ORDER FORWARDED BY THE PETITIONER TO THE 3RD RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE REPLY DATED 01.10.2020 FORWARDED BY THE 3RD RESPONDENT TO THE PETITIONER.** **4TH RESPONDENT'S ANNEXURE:** **ANNEXURE R4(A) THE TRUE COPY OF THE NOTICE DATED 18.01.2021 ISSUED TO THE PETITIONER.** ## **TRUE COPY** ## **P.A. TO JUDGE**