Puthukudi Rajan and Madiyath Dinesan v. Chief Executive Officer, Renewable Power Corporation of Kerala Ltd; Village Officer, Ambalathara Village; Hosdurg Taluk Tahsildar; State of Kerala, Department of Revenue; District Collector Kasargod (substituted)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 ``` ## **`WP(C) NO. 41318 OF 2022`** ## **`PETITIONERS:`** - **`1 PUTHUKUDI RAJAN,S/O KUNHIRAMAN, AGED 74 YEARS RESIDING AT CHEMBILODE AMSOM CHALA , KIZHAKKEKARA DESOM P.O. CHALA EAST, KANNUR, PIN - 670621`** - **`2 MADIYATH DINESAN, S/O MUKUNDAN , AGED 64 YEARS, RESIDING AT CHEMBILODE AMSOM CHALA , KIZHAKKEKARA DESOM P.O. CHALA EAST, KANNUR, PIN - 670621`** ``` BY ADVS. M.K.SUMOD ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) VIDYA M.K. ``` ## **`RESPONDENTS:`** - **`1 THE CHIEF EXECUTIVE OFFICER RENEWABLE POWER CORPORATION OF KERALA LTD KANJANGAD SOUTH , KASARGOD, PIN - 671531`** - **`2 THE VILLAGE OFFICER AMBALATHARA VILLAGE HOSDURG TALUK KASARGOD DISTRICT, PIN - 671315`** - **`3 THE TAHSILDAR HOSDURG TALUK, PANAVEL HIGHWAY KASARGOD, PIN - 671315`** - **`4 THE STATE OF KERALA DEPARTMENT OF REVENUE, REPRESENTED BY THE PRINCIPAL SECRETARY GOVERNMENT SECRETARIAT, TRIVANDRUM, PIN – 695001 * CORRECTED AND SUBSTITUTED * DISTRICT COLLECTOR KASARGOD,COLLECTORATE, CIVIL STATION. P.O, VIDYANAGAR, KASARGOD-671123.`** WP(C) No.41318 of 2022 2 ``` (R4 IS CORRECTED AND SUBSTITUTED AS DISTRICT COLLECTOR, KASARGOD-671123 AS PER ORDER DATED 18-01-2023 IN IA 1/2023 AND IA 2/2023 OF WP(C) 43318/2023) ``` ``` BY ADVS. SMT.NISHA BOSE, SPL.GOVERNMENT PLEADER GOVERNMENT PLEADER M.K.SUMOD ``` ``` SR.GP DEEPA NARAYANAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.41318 of 2022 3 ## **VIJU ABRAHAM, J.** **................................................................. W.P (C) No.41318 of 2022 .................................................................** Dated this the 27[th] day of May, 2024 ## **JUDGMENT** Petitioners have approached this Court seeking a declaration that the unilateral decision taken by the respondents to include the property of the petitioners under Ext.P2 document for the Solar Park Project referred to in Ext.P5 is arbitrary and unfair. Petitioners have also sought for a direction to the 4[th] respondent to consider and pass orders on Ext.P7 representation within a time limit to be fixed by this Court. 2. Petitioners claim to be the owners of property having an extent of 1 acre situated in re-survey no.100/16 of Ambalatha Village in Hosdurg Taluk. Petitioners has contended that the subject matter property originally belonged to one C.V.Nanu who has been issued with Ext.P1 patta. After taking possession of the land Sri.C.V.Nanu was doing cashew cultivation in the said land from 1981 till 2005. Due to old age he assigned the said land in favour of the petitioners and accordingly petitioners took assignment of the land as per Ext.P2 registered assignment deed. Petitioners were paying tax in respect of the property as evident from Exts.P3 and P4. Later on the said property was also WP(C) No.41318 of 2022 4 taken over for erection of the solar plant at Ambalathara, which was without issuing prior notice to the petitioners and without following the procedures established by law. Thereupon petitioners submitted a representation before the 1[st] respondent on which Ext.P5 communication was issued stating that proceedings for allotment of an equal extent of land is pending consideration with the 3[rd] respondent. Later on the petitioners have approached the 3[rd] respondent also for redressal of their grievance. Thereupon Ext.P6 order was issued by the 4[th] respondent directing the 3[rd] respondent to initiate proceedings under Rule 8(3) of the Kerala Land Assignment Rules for cancellation of Ext.P1 patta. Thereupon the petitioners have approached the 4[th] respondent District Collector by submitting Ext.P7 on which Ext.P8 report was also submitted. Petitioners submit that Ext.P6 order issued directing to initiate proceedings under Rule 8(3) of the Kerala Land Assignment Rules for cancellation of Ext.P1 patta was without notice to them. They relied on the judgment in **Soorya Narayana Bhat and others v. State of Kerala and others, 2017 (2) KHC 647** , wherein in paragraphs 11 and 12 this Court held as follows: _“11. According to learned Government Pleader as well as senior counsel for the 7[th] respondent individual service of notice to each and every owner of the land, who were assigned with lands was not possible and it_ WP(C) No.41318 of 2022 5 _was there upon that a decision was taken to carry out necessary paper publication. On a reading of Ext.R7(b) it is apparent, a notice was allegedly provided directing the land holders to appear before the Village Officer on 8.12.2015 and 9.10.2015 with sufficient documents to establish their rights over the properties, failing which action will be taken to cancel the registry. According to the 7[th] respondent, the said notice was published in Kannada as well as Malayalam dailies having wide circulation in the area. However, details of the paper in which the publications were carried out or any evidence is produced before this Court in order to arrive at a finding with respect to the publication carried out. True, in accordance with the terms and the stipulations contained under the assignment of registry on the basis of the provisions of the Kerala Land Assignment Act and Rules, the respective statutory authority is vested with ample powers to cancel the same, if such stipulations are violated. However, in my considered opinion, that by itself is not a ground to the said authority to cancel the assignment of registry without complying with the mandatory stipulations contained under the Kerala Land_ WP(C) No.41318 of 2022 6 _Assignment Rules, 1964, especially without providing an opportunity of hearing to the land holders. Having admitted that, the lands in question were taken over by the Government and handed over to the 7[th] respondent, a valid right accrued on the petitioners or their predecessors in interest on the basis of Article 300-A of the Constitution of India was interfered with._ _12. Therefore, the assignment of registry granted to the petitioners should not have been cancelled without providing sufficient notice of hearing to such persons. There is no established and convincing evidence before this Court to show that the parameters and stipulations contained under the Act and Rules are followed by the respondents. It is a very well settled proposition in law that the owner of a land shall not be deprived of it, without following any established procedure under law. Even though, right to property was taken away from the fundamental rights guaranteed under Part III of the Constitution of India, Article 300-A extends a valid constitutional right to the owner of the land to held the same, in accordance with law. Eminent domain of the State cannot be stretched to such an extent to forcibly_ WP(C) No.41318 of 2022 7 _take possession of land from its owner without undergoing the mandatory procedures and formalities prescribed under law, which thus also means the State and its instrumentalities are not empowered to transgress into an absolute right conferred on a land holder under law. Rule of law demands and mandates equality before law and equal protection of laws. The State and its instrumentalities are not exempted from observing the prescription of laws. Any interference with such rights otherwise than by procedure established by law cannot be viewed lightly. If any such thing had happened in the instant case it is nothing but anarchy employed at the instance of the State and is unpardonable. However, it is submitted by the learned senior counsel for the 7[th] respondent that, on handing over the land, steps are already taken to establish a solar power park in the lands in question. In that view of the matter, I am of the considered opinion, without disturbing the possession handed over to respondent No.7, it is only appropriate that the petitioners are provided with an opportunity of hearing to appear before the District Collector, Kasargode. Petitioners are directed_ WP(C) No.41318 of 2022 8 _to appear on 20.4.2017 before the District Collector Kasargode, who shall after providing sufficient time, for the petitioners, to submit objections to Exts.R7 (b) notice, and to produce evidence in respect of their claims over the lands in question, and pass orders on the same, after making of due enquiries and hearing all the concerned including the authorities under the Land Assignment Act and Rules. Thereafter, if it is found that the petitioners were holding the land in accordance with the stipulations contained in the registry/Patta issued, as well as in accordance with the provisions of the Kerala Land Assignment Act, and Rules appended thereto, sufficient steps shall be taken to settle their claims, in accordance with law. This I say, because it is an admitted fact that lands were assigned in accordance with law, however, there is no conclusive and convincing evidence before this Court to establish that the lands were taken away or the registries were cancelled after providing sufficient notice of hearing to the petitioners, and in accordance with law.”_ In **Soorya Narayana Bhat** ’s case this Court has categorically stated that the decision to cancel the assignment of registry without providing an WP(C) No.41318 of 2022 9 opportunity of hearing to the land owners is absolutely arbitrary and unjust. Learned counsel for the petitioners also submits that initiation of the proceedings for taking over the land while Ext.P1 patta was in force is absolutely arbitrary and unjust. 3. Heard the learned Government Pleader also. Taking into consideration all the aspects of the case and the dictum laid down by this Court in **Soorya Narayana Bhat** ’s case the writ petition is disposed of as follows: The 4[th] respondent shall take up Ext.P7 request submitted by the petitioners and pass appropriate orders thereon in accordance with law with notice to the petitioners and finalise the proceedings within an outer limit of two months from the date of receipt of a copy of the judgment. **Sd/-** **VIJU ABRAHAM** **JUDGE** cks WP(C) No.41318 of 2022 10 ## **`APPENDIX OF WP(C) 41318/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE ASSIGNMENT ORDER NO. L.A. 164/MADIKKAI/72 DATED 19.6.81 OF THE SPECIAL TAHSILDAR ``` ``` Exhibit P2TRUE COPY OF THE REGISTERED ASSIGNMENT DEED NO. 2051/2005 DATED 30.6.2013 ``` ``` Exhibit P3TRUE COPY OF THE D TAX RECEIPT DATED 3.1.2012 ISSUE BY AMBALATHARA VILLAGE Exhibit P4TRUE COPY OF THE LAND TAX RECEIPT DATED 13.11.2014 ISSUED BY AMBALATHARA VILLAGE ``` ``` Exhibit P5TRUE COPY OF THE COMMUNICATION DATED 16.7.2021 OF THE 1ST RESPONDENT ``` - **`Exhibit P6 TRUE COPY OF THE LETTER NO. DCKSGD/70506/2017-C1(2) DATED 28/2/2020 OF THE DISTRICT COLLECTOR, KASARGOD`** ``` Exhibit P7TRUE COPY OF THE REPRESENTATION BEFORE THE DISTRICT COLLECTOR, KASARGOD DATED 8.12.2021 Exhibit P8TRUE COPY OF THE LETTER NO. DCKSGD/10267/2021-C1 DATED: 22/06/2022 ISSUED BY THE DISTRICT COLLECTOR, KASARGOD ```