Somavally v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943** ## **W.P.(C) No.28634 OF 2020(D)** ## **PETITIONER:** **SOMAVALLY, AGED 85 YEARS, W/O.KUMARAN, LATHA MANDHIRAM, VANDANAM, MEDICAL COLLEGE P.O., ALAPPUZHA-688 005.** **BY ADVS. SRI.NAVEEN.T KUM.CHITHRA CHANDRASEKHARAN SRI.V.S.ABHISHEK SRI.BIJI A MANIKOTH SHRI.SHIBU JOSEPH KOTTAYIL** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDINGS, OPP. MUSEUM, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033.** - **3 DISTRICT COLLECTOR, CIVIL STATION, ALAPPUZHA-688 001.** - **4 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, ALAPPUZHA, ALAPPUZHA DISTRICT-688 001.** - **5 TAHSILDAR, TALUK OFFICE, AMBALAPPUZHA, ALAPPUZHA DISTRICT-688 005.** - **6 PUNNAPPRA SOUTH GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, PUNNAPPRA SOUTH GRAMA PANCHAYATH, PUNNAPPRA P.O., ALAPPUZHA DISTRICT-688 004.** ## **W.P.(C) No.28634 OF 2020(D)** -2- **7 VILLAGE OFFICER, VILLAGE OFFICE, PUNNAPPRA VILLAGE, PUNNAPPRA P.O., ALAPPUZHA DISTRICT-688 004. R1-R5 SRI.M.R DHANIL, GOVERNMENT PLEADER & R7 R6 BY ADV. SRI.BRIJESH MOHAN R6 BY ADV. SRI.R.RAJPRADEEP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C) No.28634 OF 2020(D)** -3- ## **JUDGMENT** Going by the averments in the writ petition, the petitioner is the owner of a property having an extent of 40.8 cents in Survey No.42/2 of Ambalappuzha North Village in Ambalappuzha Taluk, covered by partition deed No.2706 of 1974 of the Sub Registrar Office, Alappuzha. From the above extent, the property having 8.39 Ares was conveyed to her son as per gift deed No.1583 of 1998 of the Sub Registrar Office, Alappuzha. Over and above 40.8 cents of property, the petitioner is in possession of 4.8 Ares of land at the southern side of the said property, which according to the respondents is a _'thodu Puramboku'_ in Survey No.42/2 of Ambalappuzha North Village. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 order dated 26.03.2018 of the 6[th] respondent Grama Panchayat; Ext.P3 order dated 27.02.2020 of the 3[rd] respondent District Collector; and Ext.P6 order dated 01.10.2020 of the 2[nd] respondent Land Revenue Commissioner. The petitioner has also sought for a writ of certiorari to quash Ext.P13 communication dated 23.11.2020 of the 2[nd] respondent Land Revenue Commissioner; a declaration that Exts.P1, P3 and P6 orders are unsustainable in law, as they are issued not in ## **W.P.(C) No.28634 OF 2020(D)** **==> picture [19 x 7] intentionally omitted <==** accordance with the provisions under the Kerala Land Conservancy Act, 1957; a direction commanding the 2[nd] respondent Land Revenue Commissioner to consider Ext.P7 appeal filed by the petitioner against Ext.P1 order passed by the 6[th] respondent Grama Panchayat, on merits; a direction commanding the 2[nd] respondent Land Revenue Commissioner to consider Ext.P11 stay petition dated 09.11.2020 and Ext.P12 application dated 09.11.2020 to condone the delay in filing the appeal; and a direction commanding the respondents not to evict the petitioner from 4.08 Ares of land in Survey No.42/2 of Ambalappuzha North Village in Ambalappuzha Taluk and allow her to continue in possession of the above property uninterruptedly. 2. On 21.12.2020, 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 5 and 7. Urgent notice by speed post was ordered to the 6[th] respondent. This Court granted an interim order of status quo, as on that date, for a period of four weeks. The said order of status quo, which was extended from time to time, is still in force. 3. Along with I.A.No.1 of 2021, the petitioner has ## **W.P.(C) No.28634 OF 2020(D)** -5- produced certain additional documents. That application was allowed on 25.02.2021. By order dated 01.03.2021 in I.A.No.2 of 2021, the additional documents produced along with I.A.No.1 of 2021 are marked as Exts.P14 to P17, instead of Exts.P8 to P11. 4. During the pendency of this writ petition, the petitioner filed Ext.P14 appeal before the 2[nd] respondent Land Revenue Commissioner, under sub-section (3) of Section 16 of the Kerala Land Conservancy Act, 1967 challenging Ext.P1 order dated 26.03.2018 of the 6[th] respondent Grama Panchayat. That appeal is accompanied by Ext.P15 application for condonation of delay filed under sub-section (2) of Section 17 of the said Act and Ext.P16 application for stay under sub-section (7) of Section 16 of the Act. 5. As evidenced by Ext.P17 receipt, the 2[nd] respondent acknowledged the receipt of Exts.P14 to P16 on 22.02.2021. 6. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 5 and 7 and also the learned counsel for the 6[th] respondent Grama Panchayat. 7. During the course of arguments, the learned counsel for the petitioner would confine the reliefs sought for in this writ petition as one for consideration of Ext.P14 to P16, which are now pending before the 2[nd] respondent Land Revenue Commissioner. ## **W.P.(C) No.28634 OF 2020(D)** -6- 8. The learned Government Pleader would submit that the 2[nd] respondent shall consider Ext.P15 application filed by the petitioner for condonation of delay and thereafter, consider Ext.P14 appeal and Ext.P16 stay petition, with notice to the 6[th] respondent Secretary of the Grama Panchayat. 9. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions; i) The 2[nd] respondent Land Revenue Commissioner shall consider Ext.P15 application for condonation of delay filed in Ext.P14 appeal, with notice to the petitioner and also to the Secretary of the 6[th] respondent Grama Panchayat and take an appropriate decision, within a period of three weeks from the date of receipt of a certified copy of this judgment, in case Ext.P14 appeal is maintainable in law, in which case the order of status quo granted by this Court on 21.12.2020 shall continue to be in force till consideration of Ext.P16 stay petition. ii) Based on the orders passed on that interlocutory application, the 2[nd] respondent shall consider Ext.P16 stay petition filed in Ext.P14 appeal and pass appropriate order, with notice to the petitioner and the 6[th] respondent, within a further period of two weeks. iii) Thereafter, the 2[nd] respondent shall consider Ext.P14 appeal filed by the petitioner and take an appropriate decision thereon, as expeditiously as ## **W.P.(C) No.28634 OF 2020(D)** -7- possible, at any rate, within a further period of two months, with notice to the petitioner and the 6[th] respondent. 10. 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. 11. Therefore, in terms of the direction contained in this judgment, the 2[nd] respondent Land Revenue Commissioner 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** bpr -8- ## **W.P.(C) No.28634 OF 2020(D)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 26/3/2018 ISSUED BY THE 6TH RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 27/11/2019 ISSUED BY THE 4TH RESPONDENT, RDO.** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 27/2/2020 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE REVISION PETITION DATED 19/6/2020 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 8/7/2020 IN WPC NO.12050/2020 OF THIS HON'BLE COURT.** **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 1/10/2020 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P7 TRUE COPY OF THE APPEAL DATED 21/10/2020 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 2/11/2020 IN WPC NO.23295/2020 OF THIS HON'BLE COURT.** **EXHIBIT P9 TRUE COPY OF THE POSTAL RECEIPT EVIDENCING SENDING OF EXT.P7 APPEAL IN THE OFFICIAL ADDRESS OF THE 2ND RESPONDENT.** **EXHIBIT P10 TRUE COPY OF THE SCREEN SHOT OF THE E-MAIL COMMUNICATION SENT TO THE 2ND RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE STAY PETITION DT. 9/11/2020 PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P12 TRUE COPY OF THE PETITION TO CONDONE THE DELAY IN FILING THE APPEAL DATED 9/11/2020 FILED BY THE PETITIONER BEFORE TH 2ND RESPONDENT.** ## **W.P.(C) No.28634 OF 2020(D)** -9- - **EXHIBIT P13 TRUE COPY OF THE COMMUNICATION DATED 23/11/2020 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE FRESH APPEAL DATED 18.02.2021 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE FRESH DELAY CONDONATION PETITION DATED 18.02.2021 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE FRESH STAY PETITION DATED 18.02.2021 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - *** EXHIBIT P11 TRUE COPY OF THE RECEIPT DATED 22.02.2021 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT.** *** EXHIBITS P8 TO 11 PRODUCED ALONG WITH I.A.NO.1 OF 2021 MARKED AS EXHIBITS P14 TO P17 AS PER ORDER DATED 01.03.2021 IN I.A.NO.2 OF 2021 IN W.P.(C) NO.28634/2020.** ## **RESPONDENTS' EXHIBITS: NIL**