Punnamada Resorts Pvt Ltd v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 14TH DAY OF FEBRUARY 2019/25TH MAGHA, 1940** **WP(C).No. 4436 of 2019** ## **PETITIONER/S:** **PUNNAMADA RESORTS PVT LTD A COMPANY INCORPORATED UNDER, THE INDIAN COMPANIES ACT, REPRESENTED BY ITS CHAIRMAN, LEKSHMI KANTHAN, SRINIVAS HOUSE, MULLACKAL, KALLAN ROAD, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.M.NARENDRA KUMAR SRI.C.RAMAN** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY, MINISTRY OF REVENUE,**| ||**SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001.**| |**2**|**DISTRICT COLLECTOR,**| ||**OFFICE OF THE COLLECTRATE, ALAPPUZHA, PIN 688**| ||**001.**| |**3**|**TAHSILDAR (L.R),**| ||**TALUK OFFICE, AMBALAPUZHA, PIN 688 561.**| ## **OTHER PRESENT:** **SRI.K.J.MOHAMMED ANZAR, SPL.GOVT.PLEADRER(REVENUE)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **WP(C).No. 4436 of 2019** ## **ALEXANDER THOMAS, J** . ---------------------------------W.P(C).No.4436 of 2019 ----------------------------------Dated this the 14[th] day of February, 2019. ## **J U D G M E N T** The prayers in the above Writ Petition (Civil) are as follows: _'i) Issue a writ of Certiorari or other appropriate writ, order or direction calling for the records leading to Ext.P10 and quash the same as illegal and without jurisdiction._ _ii) Issue a writ of mandamus or other writ, order or direction commanding the respondents to consider Ext.P11 objections regarding “jurisdictional fact” to proceed against the petitioner's property under Land Conservancy Act, 1957 as preliminary issue after affecting sufficient opportunity to substantiate the same before a final decision is taken in the case._ _iii) Grant such other reliefs which this Hon'ble court deems fit and proper in the circumstances of this case.'_ 2. Heard Sri.M.Narendra Kumar, learned counsel for the petitioner and Sri.K.J.Mohammed Anzar, learned Special Government Pleader appearing for the respondents. 3. From the pleadings and materials on record, it is seen that the petitioner had initiated previous round of writ litigation proceedings by filing Ext.P-12 W.P(C).No. 16055/2018 before this Court challenging the proceedings ::3:: **WP(C).No. 4436 of 2019** initiated by the respondents under the Kerala Land Conservancy Act and the Rules as regards the subject property involved in this case, which led to the judgment dated 13.7.2018 of this Court in W.P.(C).No.16055/18, which reads as follows: _**“** The petitioner has approached this Court with the following prayer:-_ _i) Issue a writ of Certiorari or other appropriate writ, order or direction leading to Ext.P9 and P10 and quash them._ _2. Heard learned counsel for the petitioner and the learned Government Pleader._ _3. The learned counsel for the petitioner submits that petitioner had once been proceeded against in terms of the Kerala Land Conservancy Act, 1957 (hereinafter called as 'the Act') by Exts.P1 to P5 proceedings. The petitioner had also submitted his reply to the notices issued to him. It is stated that by Ext.P10, a fresh notice has been issued to the petitioner in terms of Section 12 of the Act, read with Rule 9 of the Kerala Land Conservancy Rules. It is stated that the details regarding the alleged encroachment are shown in the_ _said notice. The learned counsel appearing for the petitioner would contend that as of now there, appear to be two parallel proceedings in respect of the same alleged encroachment. Exts.P1 to P5 proceedings, which according to the respondents were vitiated by a mistake in the stating of the village and survey number has not been dropped._ _4. It is submitted by the learned Government Pleader, on instructions, that pursuant to Ext.P1 to P5 proceedings, a report was submitted by the Village Officer clarifying that the land illegitimately possessed by the petitioner is in block No.6 of survey No.1 of Komalapuram Village and it had been inadvertently shown in Ext.P1 to P5 as land comprised in Aryad South Village. It is further stated that the objections raised_ ::4:: **WP(C).No. 4436 of 2019** _by the petitioner against the earlier notice had been considered and it was revealed that the Government land is in possession of the petitioner and hence fresh proceedings were initiated. It is stated that the anomalies in the survey number which had occurred in the previous notices have been rectified while issuing Ext.P10 notice._ _5. Having heard the learned counsel appearing on either side and having considered the contentions, I am of the view that the essential contention raised by the revenue that there is illegal possession of the Government land by the petitioner. It is stated that Exts.P1 to P5 notices issued earlier under the Act were vitiated in the sense that the name of the village and survey number mentioned therein were mistaken. By Ext.P9, the earlier proceedings have been dropped and Ext.P10 notice has been issued showing the correct village name and survey number. In the facts and circumstances of the case, I am of the opinion that Exts.P1 to P5 notices and Ext.P10 notice cannot co-exist and that two parallel proceedings in respect of the very same alleged encroachment is not maintainable. It is the specific case of the respondents themselves that Exts.P1 to P5 notices were vitiated and that there were mistakes in mentioning the village name and survey number._ _In the above view of the matter, I am of the opinion that the proceedings pursuant to Exts.P1 to P5 notices should be deemed to have been dropped by the issuance of Ext.P9 order. It is made clear that the respondents can proceed with the proceedings initiated by Ext.P10 after hearing the respondents also on the merits of the matter. The proceedings shall be deemed to fresh proceedings initiated against the petitioners and all procedural formalities shall be followed. The writ petition is ordered accordingly.”_ By the said judgment dated 13.7.2018 in W.P.(C). No.16055/2018, this Court had ordered that the proceedings pursuant to Exts.P-1 to P-5 notices therein/Exts.P-1 to P-5 herein and should be deemed to have been dropped by the issuance of Ext.P-9 therein/Ext.P-4 herein. However, the ::5:: **WP(C).No. 4436 of 2019** respondents can proceed with the proceedings initiated by notice dated 20.4.2018 as per Ext.P-10 therein/Ext.P-10 herein after hearing the petitioner also on the various aspects of the matter and it was ordered that proceedings as per Ext.P-10 shall be deemed to be fresh proceedings initiated against the petitioner and all procedural formalities shall be followed. 4. Now, the petitioner has filed Ext.P-13 objections dated 8.2.2019 to the said Ext.P-10 notice along with an application to decide on the jurisdictional competence of the respondent-Tahsildar (LR). The respondents would contend that, as regards the said preliminary objection raised by the petitioner on the point of maintainability and jurisdictional competence of the 3[rd] respondent-Tahsildar, the following contentions have been highlighted by Sri.M.Narendra Kumar, learned counsel for the petitioner. 5. It is contended that, where an affected party like the petitioner raises a bona-fide claim of title, then no proceedings under the Kerala Land Conservancy Act should be taken against the other property in question. The petitioner has placed reliance on various judgments as in ::6:: **WP(C).No. 4436 of 2019** _Harrisons Malayalam Ltd. v. State of Kerala_ , reported in 2018 (2) 369 (DB), _Government of Andhra Pradesh v. Thummala Krishna Rao_ , reported in (1982) 2 SCC 134, _State of Rajasthan v. Padmavathi Devi_ , reported in (1995) Supp.(2) SCC 290, _Tukaram Kana Joshi v. MIDC_ , reported in AIR 2013 SC 565, _Banerjee Memorial Club v. Taluk Tahsildar_ , reported in 2016 (1) 241 (DB). Reference is also placed on the decision of the Apex Court in _State of U.P. v. Zia Khan_ , reported (1998) 8 SCC 483 to contend that a suit to establish title to land is not barred and that the civil court has to be approached by the State where there is a bona fide dispute as to title raised by the person in possession of the property. 6. In the decision in _Harrisons Malayalam Ltd. v. State of Kerala_ [2014(4) KLT 371], wherein this Court has held that there is a fine distinction between occupation and possession in law and that the occupation denotes actual use and possession denotes control and interest in the land. If a person is in legal possession of a land, without determining the legal possession, proceedings under the Land Conservancy Act cannot be initiated. The determination of ::7:: **WP(C).No. 4436 of 2019** legal possession cannot be done invoking the provisions under the Land Conservancy Act and that the jurisdictional facts in the context of Land Conservancy Act has been decided with reference to two facts, firstly whether the land in question can be categorized as Government land in terms of Sec.3 of the Land Conservancy Act and secondly whether the Government is in legal possession of the land referred to in Sec.3 of the Land Conservancy Act and that the proceedings under the Act may be initiated if the persons are found in occupation of Government land and that there is distinction between occupation and possession in Law and occupation denotes actual use and possession denotes control and interest in the land. If a person is in legal possession of a land, then without determining the legal possession, proceedings under the Kerala Land Conservancy Act cannot be initiated and the determination of legal possession cannot be done by invoking the provisions of the Land Conservancy Act, which only provides summary procedure for evicting illegal or unauthorized occupation and that while categorizing the property as the Government land, the competent officer must address to the fact, as to ::8:: **WP(C).No. 4436 of 2019** whether the Government is in legal possession of the property and that the Officer has to bear in mind the fine distinction between occupation and possession while deciding the preliminary issue regarding the competence to initiate proceedings under the Land Conservancy Act, etc. Per contra, Sri.K.J.Mohammed Anzar, learned Special Government Pleader (Revenue) would submit that facts and circumstances of this case, the petitioner cannot establish any bona fide title or even possession in respect of the land and that it is a clear case of unauthorized occupation, etc. However, Sri.M.Narendra Kumar, learned counsel appearing for the petitioner would then submit that the continuous and unobjected possession enjoyed by the petitioner in respect of the subject property itself would be clearly indicating of the fact that he is not merely in occupation of the land, but in possession of the land and that the Government cannot be said to be in legal possession of the subject property and that even if the State authorities dispute on that aspects, then the proceedings under the Kerala Land Conservancy Act are incompetent and the State authorities will have to institute a civil suit for establishing ::9:: **WP(C).No. 4436 of 2019** their claim of title and for recovery proceedings, etc. and resort to land conservancy proceedings is incompetent and without jurisdiction, etc. 7. Having regard to the submissions on both sides, this Court is of the considered view that the preliminary submissions of the petitioner regarding the lack of competence and jurisdiction on the part of the respondentOfficer to initiate proceedings under the Kerala Land Conservancy Act in the facts and circumstances of the case would certainly be addressed and adverted to by him and decided. However, it need not necessarily be decided separately as a preliminary point on the issue of maintainability and the respondent-Officer concerned may be at liberty to complete the entire proceedings and while rendering decision, the abovesaid aspects regarding maintainability should be the first point that should be addressed by him. 8. Sri.M.Narendra Kumar, learned counsel appearing for the petitioner has also raised another contention that the 3[rd] respondent-Tahsildar (Land Records) ::10:: **WP(C).No. 4436 of 2019** has no jurisdiction or competence to issue the impugned Ext.P-10 notice dated 20.04.2018, as only “Taluk Tahsildar” of the Taluk concerned alone has competence and jurisdiction in terms of the statutory notification issued by the State Government under Sec.15 of the Land Conservancy Act is concerned, etc. and that any subsequent notification issued recently purporting to empower the Tahsildar (Land Records), can at best have only prospective effect and cannot relied back to the issuance of the impugned Ext.P-10 notice dated 20.04.2018, etc. That aspect of the matter could also be certainly considered and addressed by the respondent-Officer concerned while rendering considered decision in the matter, as aforestated. It is for the respondent-Officer concerned to take necessary steps to complete all the procedural formalities concerned and to ensure that there is full and effective compliance of the principles of natural justice, so as to grant reasonable opportunity of being heard to the petitioner and then take a considered decision in the matter, without much delay. ::11:: **WP(C).No. 4436 of 2019** 9. Sri.M.Narendra Kumar, learned counsel appearing for the petitioner would submit that many revenue and survey officials are constantly harassing the petitioner on the plea that they have to repeatedly do the survey and measurement of the subject property and that the petitioner has a reasonable apprehension that efforts are made to dispensing him even without considering all his contentions and that this Court may in the interest of justice direct the respondents not to take any coercive steps until final orders are duly passed in the matter in Ext.P-10. The petitioner will ensure that all necessary documents in support of his claims and affidavits may be produced by him before the respondent-Officer concerned. If the respondentOfficer concerned is placing reliance on any adverse materials against the petitioner, then he shall be obliged to ensure that copies of such records and documents are made available to the petitioner in advance, so that he is enable to put forth his defense as against such materials. 10. The learned counsel for the petitioner has also raised a contention that the petitioner is in occupation and ::12:: **WP(C).No. 4436 of 2019** possession only in respect of the properties, which are in his lawful title and possession and that he has not encroached into even 1 Square inch of Government property/puramboke property/Kayal puramboke, etc. and the allegations to the contrary raised by the respondents is factually incorrect and wrong. If that be so, it will be open to the petitioner to make a separate request before the respondent-Officer concerned, to survey and measure the subject property by a competent Surveyor with due prior notice to the petitioner and after examining his title deeds, etc. Upon which, the respondentOfficer should ensure that a survey and measurement of the subject property is got effected by a competent Surveyor concerned with due prior notice to the petitioner and such survey and measurement should be effected by the Surveyor on the basis of the title deeds, old survey records, re-survey records and any other relevant piece of materials, in order to ascertain whether the petitioner is in occupation only in respect of properties which are in his lawful title and possession or whether he has encroached into any Government property/puramboke property, etc. The Surveyor will give a comprehensive report regarding his ::13:: **WP(C).No. 4436 of 2019** findings, as to whether the petitioner has encroached into any such Government property and should also submit a survey sketch and a copy of the report of the Surveyor should be given to the petitioner in advance. The petitioner may then make necessary written submissions/objections before the respondent-Officer concerned against the said findings or report in the report of the Surveyor and survey sketch, which shall be duly considered by the respondentOfficer concerned. 11. Per contra, Sri.K.J.Mohammed Anzar, learned Special Government Pleader (Revenue) appearing for the respondents would submit on the basis of instructions that the abovesaid apprehension raised by the petitioner is unfounded and without any factual basis and that there is no question of the respondent unnecessarily harassing the petitioner or evicting the petitioner from the subject property before the final orders are passed in the matters in Ext.P-10. The abovesaid submission made on behalf of the respondent-State authorities by the learned Special Government Pleader (Revenue) is recorded and is ::14:: **WP(C).No. 4436 of 2019** appreciated. Before passing final orders, the respondentOfficer concerned shall grant a reasonable opportunity of being heard to the petitioner through authorized representative/counsel, if any. It is made clear that all issues are left open. With these observations and directions, this Writ Petition (Civil) will stand disposed of. Sd/- **ALEXANDER THOMAS JUDGE** bkn/vgd/27.02.19 ::15:: **WP(C).No. 4436 of 2019** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 THE TRUE COPY OF THE REPORT NO 954/10 DATED 12.10.2010** - **EXHIBIT P2 THE TRUE COPY OF THE INTIMATION DATED 22.11.2010 BY TAHSILDAR TO VILLAGE OFFICER, KOMALAPURAM** - **EXHIBIT P3 THE TRUE COPY OF THE LETTER SUBMITTED BY TAHSILDAR DATED 23.11.2010 AND 3.12.2010** - **EXHIBIT P4 THE TRUE COPY OF THE LETTER NO C4 24159/07 DATED 23.7.2010 OF THE TAHSILDAR TO THE DISTRICT COLLECTOR** - **EXHIBIT P5 THE TRUE COPY OF THE NOTICE DATED 12.2.2018 IN LC 2/18** - **EXHIBIT P6 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DENYING THE UNAUTHORIZED OCCUPATION OF THE PROPERTY COVERED BY THE NOTICE IN LC 2/18** - **EXHIBIT P7 THE TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER DATED 4.4.2018 TO THE TAHSILDAR, AMBALAPUZHA** - **EXHIBIT P8 THE TRUE COPY OF THE SY.PLAN OF RESORT PREPAID BY THE PETITIONER** - **EXHIBIT P9 THE TRUE COPY OF THE PROCEEDINGS NO C4 309/16 DATED 17.4.2018** - **EXHIBIT P10 THE TRUE COPY OF THE NOTICE DATED 20.4.2018 UNDER SECTION 12 OF THE LC ACT R/W RULE 9** ::16:: **WP(C).No. 4436 of 2019** **EXHIBIT P11 THE TRUE COPY OF THE REPORTS AND PLAN MENTIONED IN EXT P9 OBTAINED UNDER THE RTI ACT.** **EXHIBIT P12 THE TRUE COPY OF THE STATEMENT FILED BY 3RD RESPONDENT IN WPC NO 16055/2018** **EXHIBIT P13 THE TRUE COPY OF THE OBJECTIONS TO EXT P10 NOTICE ON 8.2.2019 FILED BY THE PETITIONER** **EXHIBIT P14 THE TRUE COPY OF THE SY.PLAN OF BOCK NO 125** **EXHIBIT P15 THE TRUE COPY OF THE SY. PLAN OF BLOCK NO 6**