Subash Soman v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **SATURDAY, THE 5TH DAY OF OCTOBER 2013/13TH ASWINA, 1935** ## **WP(C).No. 28995 of 2011 (Y)** **----------------------------** ## **PETITIONER(S):** **--------------------------** **SUBASH SOMAN, PRESENT MANAGING DIRECTOR, ROHINI GLOBAL MARCHANDISE PVT LTD., ROHINI NAGAR, COLLEGE ROAD, KOTTARAKKARA.** **BY SRI.N.DHARMADAN,SENIOR ADVOCATE ADV.SMT.D.P.RENU** ## **RESPONDENT(S):** **----------------------------** ## **1. STATE OF KERALA,** **REP.BY THE SECRETARY TO THE GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** ## **2. DISTRICT COLLECTOR,** **COLLECTORATE, KOLLAM-691 001.** ## **3. VILLAGE OFFICER,** **VILLAGE OFFICE, VADAKKEVILA, KOLLAM-691 010.** ## **4. THE TAHSILDAR,** **TALUK OFFICE, KOLLAM - 691 001.** ## **R1 TO R4 BY SPECIAL GOVERNMENT PLEADER(REVENUE)SRI.P.K.SOYUZ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.28995/2011 (Y)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1:TRUE COPY OF STOP MEMO DT.26/10/2011 ISSUED BY 3RD RESPONDENT. EXT.P2:TRUE COPY OF SALE DEED DT.10/11/2010 EXECUTED BY SRI.RAVIKUMAR, MRS.USHAKUMARI AND PETITIONER'S FATHER. EXT.P3:TRUE COPY OF SALE DEED DT.2/9/2010 EXECUTED BY SRI.RAVIKUMAR, AND PETITIONER'S FATHER. EXT.P4:TRUE COPY OF POSSESSION CERTIFICATE DT 23/6/2010 ISSUED BY 3RD RESPONDENT TO SRI.RAVIKUMAR. EXT.P5:TRUE COPY OF POSSESSION CERTIFICATE DT 23/6/2010 ISSUED BY 3RD RESPONDENT TO SRI.RAVIKUMAR. EXT.P6:TRUE COPY OF POSSESSION CERTIFICATE DT 28/2/2011 ISSUED BY 3RD RESPONDENT TO PETITIONER. EXT.P7:TRUE COPY OF THE BUILDING PERMISSION DT.31/3/2011 ISSUED BY KOLLAM CORPORATION. EXT.P8:TRUE COPY OF CERTIFICATE DT.14/7/2011 ISSUED BY SUB INSPECTOR OF POLICE, ERAVIPURAM. EXT.P9:TRUE COPY OF LOCATION PLAN ISSUED BY 3RD RESPONDENT. EXT.P10:TRUE COPY OF PETITION DT.27/10/2011 BY PETITIONER'S FATHER BEFORE THE R.D.O EXT.P11:TRUE COPY OF MEMORANDUM DT.28/10/2011 FILED BY PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P12:TRUE COPY OF REPORT DTD. 28/10/2011 SUBMITTED BY THE VILLAGE OFFICER. EXT.P13:TRUE COPY OF LETTER DTD. 17/12/2011 ISSUED BY TAHSILDAR. EXT.P14:TRUE COPY OF ORDER DTD.22/12/2011 ISSUED BY TAHSILDAR. EXT.P15:TRUE COPY OF ORDER DTD.17/12/2011 ISSUED BY TAHSILDAR. EXT.P16:TRUE COPY OF ORDER DTD. 17/12/2011 ISSUED BY TAHSILDAR. EXT.P17:TRUE COPY OF POSSESSION CERTIFICATE DTD. 28/02/2011 ISSUED BY VILLAGE OFFICER.** - **EXT.P18:TRUE COPY OF TAX RECEIPT DTD. 16/06/2012 ISSUED BY VILLAGE OFFICER.** - **EXT.P19:TRUE COPY OF LOCATION SKETCH OF THE PROPERTY.** **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** # **RESPONDENTS' EXHIBITS** ## **P.R. RAMACHANDRA MENON, J.** ======================== W.P.(C). No. 28995 of 2011 -------------------------------------------Dated this the 5[th] day of October, 2013 ## **JUDGMENT** The petitioner is mainly seeking to direct the 2[nd] respondent to consider Ext.P11 and to pass appropriate orders with regard to the grievance projected by the petitioner in respect of the 'stop memo' issued by the Village Officer, vide Ext.P1. By way of additional prayer, Exts. P14, P15 and P16 passed by the concerned respondent cancelling the Possession Certificate already issued to the petitioner are also subjected to challenge. ## 2. The sequence of events is as follows: The petitioner became the owner of the property by virtue of Exts. P2 and P3 sale deeds executed on 10.11.2010 and 2.9.2010 respectively. Ever since the execution of the said deed, the petitioner started enjoying the property with absolute ownership, exclusive possession and clear and marketable title. Exts. P4 and P5 are Possession Certificates issued to the predecessor-in-interest. On proving the credentials of the petitioner, the 3[rd] respondent issued Ext.P6 Possession Certificate on 28.2.2011. W.P.C. No. 28995 of 2011 -2- 3. The case of the petitioner is that, in all the relevant records including the title deeds, the various possession certificates, the nature of the property has been shown as 'Purayidom' (dry land) and it was accordingly, that the application preferred by the petitioner for granting building permit was considered and Ext.P7 permit was issued by the local authority. The factual position is sought to be asserted with reference to Ext.P8 certificate/NOC issued by the S.I of Police, Eravipuram and Ext.P9 location plan. While the petitioner was proceeding with the construction, based on Ext.P7 building permit, the same was sought to be intercepted by the 3[rd] respondent by issuing Ext.P1 stop memo, which made the petitioner to approach the 2[nd] respondent by filing Ext.P11, pointing out the sequence of events. The petitioner contends that the matter was enquired into and Ext.P12 report dated 28.10.2011 was submitted by the Village Officer, wherein, it has been categorically asserted that, no paddy cultivation is going on for the past 2 ½ decades, though the land has been described as 'Nilam' in the BTR. 4. However, without any regard to Ext.P12, a further report W.P.C. No. 28995 of 2011 -3- was called for from the Village Officer, as discernible from Ext.P13, and after considering the same, particularly on the basis of a telephonic instruction given by the 2[nd] respondent, Exts.P14, P15 and P16 proceedings came to be passed by the Tahsildar on the relevant dates, which are sought to be challenged by raising an additional prayer in this regard. 5. The prayers are sought to be resisted from the part of the respondents and a counter affidavit has been filed by the respondents explaining the facts and figures. The petitioner has amended the writ petition, also seeking to challenge Exts.P14 to P16 orders passed by the Tahsildar, mainly contending that, the 3[rd] respondent himself has conceded in Ext.P12 report that, the property is not fit for cultivation and that the same is lying as such, for more than two decades and further that quite a lot of improvements are there and also in the nearby properties, such as a hotel on the southern side and a saw-mill on the northern side, with such other improvements. The crucial question to be considered is whether, the possession certificate issued by the 3[rd] respondent earlier by way of Exts.P4 to P6 were in conformity W.P.C. No. 28995 of 2011 -4- with the description of the property in the BTR and if not, whether they are not liable to be cancelled. 6. Heard the learned counsel for the petitioner and also the learned Special Government Pleader at length. 7. The factual position that the property has been described as 'Nilam' in the BTR stands conceded even by the 3[rd] respondent as per Ext.P12 report, which is sought to be heavily relied on from the part of the petitioner. There is no dispute with regard to the factual aspect in this regard and there is no case for the petitioner that, the entry in the BTR is something else. If a certificate has been issued by the Village Officer contrary to the entry in the BTR with regard to the nature of the land, it does not require any second thought for this Court to hold that, it is liable to be cancelled, as mistake is always a mistake, which cannot be perpetuated. This alone has been ordered by the District Collector, to cause the matter to be considered in the light of the relevant records; thus leading to Exts. P14 to P16. As such, the challenge raised by the petitioner against the said proceedings is not liable to be entertained. W.P.C. No. 28995 of 2011 -5- 8. However, the fact remains that the property belonging to the petitioner no more continues as paddy land/Nilam or wet land, though the same has been included as 'Nilam' in the BTR. By virtue of the pleadings and materials on record, this Court finds that 'Act 28 of 2008' cannot be attracted to the case in hand and if this be the position, the petitioner is entitled to make use of the property for other purposes as well, than the agricultural purpose, by virtue of the enabling provision under the KLU Order (Clause 6). This is more so, in view of the decision rendered by this Court in **Jafarghan** v **. K.A. Kochumakkar & Others (2012 (1) KLT 491)** and as made clear by the Division Bench of this Court in **Praveen K. v. Land Revenue Commissioner, Thiruvananthapuram & Others** ( **2010 (2) KLT 617** ) **.** 9. In the above circumstance, this Court finds that the matter requires to be considered by the 2[nd] respondent in the light of the observations made hereinbefore and particularly, by the Division Bench as per the decision cited supra. Ext.P11 application preferred by the petitioner before the 2[nd] respondent W.P.C. No. 28995 of 2011 -6- seeking to intercept Ext.P7 stop memo shall be treated a petition under Clause '6' of the KLU Order and appropriate orders shall be passed in accordance with law, after giving an opportunity of hearing to the petitioner, at the earliest, at any rate, within 'two months' from the date of receipt of a copy of this judgment. 10. The interim order passed by this Court enabling the petitioner to proceed with the construction at his risk, as per order dated 3.11.2011, will continue till the orders are finalized by the 2[nd] respondent as aforesaid and this will be subject to the outcome of the decision to be taken by the 2[nd] respondent. The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the 2[nd] respondent for further steps. The writ petition is disposed of. ## **P.R. RAMACHANDRA MENON, JUDGE.** kp/-