W.P.(C) Nos.7365 & 28877 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 5TH DAY OF DECEMBER 2016/14TH AGRAHAYANA, 1938** ## **WP(C).No. 7365 of 2016 (U)** **---------------------------** **PETITIONER(S):** **-------------** **SIDHEEQ KOLOTHUMTHODIKA, S/O. ABDUL SALAM, KOLOTHUMPADIKA HOUSE, KUNIYIL, KEEZHUPARAMBA, ARECODE, MALAPPURAM.** **BY ADV. SRI.T.G.RAJENDRAN** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF MINING GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE COMMISSIONER OF LAND REVENUE, COMMISSIONERATE OF LAND REVENUE, THIRUVANANTHAPURAM-695 001.** **3. THE DEISTRICT COLLECTOR, KOZHIKODE-686 001.** **4. THE DIRECTOR OF MINING AND GEOLOGY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.** **5. THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, KOZHIKODE-686 001.** **6. THE VILLAGE OFFICER,** - **KUMARANELLOOR GRAMA PANCHAYATH, KOZHIKODE-686 016.** - **ADDITIONAL R7 & R8 IMPLEADED** **7. STATE LAND BOARD, REPRESENTED BY SECRETARY, THIRUVANANTHAPURAM.** ## **8. TALUK LAND BOARD,** ## **REPRESENTED BY CHAIRMAN, KOYLANDY, KOZHIKODE.** - **R7 & R8 ARE IMPLEADED AS PER ORDER DTD.5.12.2016 IN IA.NO.9151/2016** ## **BY SRI.RANJITH THAMPAN, ADDL. ADV. GENERAL GOVERNMENT PLEADER SRI.JAFAR KHAN Y.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-12-2016, ALONG WITH WPC. 28877/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 7365 of 2016 (U) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** |**EXT.P1:**|**TRUE COPY OF THE QUARRYING PERMIT FOR EXTRACTION OF**| |---|---| ||**GRANITE BUILDING STONE ISSUED BY THE 5TH RESPONDENT**| ||**DT. 10/11/14**| |**EXT.P2:**|**TRUE COPY OF THE LETTER ISSUED BY THE 6TH RESPONDENT**| ||**DT. 23/11/14**| |**EXT.P3:**|**TRUE COPY OF THE REPRESENTATION SENT BY THE PETITIONER**| ||**BEFORE THE 6TH RESPONDENT DT. 1/1/16**| |**EXT.P4:**|**TRUE COPY OF THE LETTER ISSUED BY THE 6TH RESPONDENT**| ||**DT. 1/1/16**| |**EXT.P5:**|**TRUE COPY OF THE ORDER LAND REVENUE COMMISSIONER IN**| ||**ORDER NO. LB(E) 9/9515/09 DT. 25/2/15**| |**EXT.P6:**|**TRUE COPY OF THE LETTER NO. 79256/N3/2015/REVENUE**| ||**DT. 3/2/2016 ISSUED BY THE 1ST RESPONDENT.**| |**EXT.P7**|**TRUE COPY OF THE ORDER OF THE TAHSILDAR DTD.16.6.2006.**| |**EXT.P8**|**TRUE COPY OF THE COMMUNICATION ISSUED BY THE VILLAGE**| ||**OFFICER DTD.17.6.2016.**| |**EXT.P9**|**TRUE COPY OF THE AUTHORIZATION LETTER DTD.4.2.2016.**| |**EXT.P10**|**TRUE COPY OF THE CERTIFICATE NO.2087/2016**| ||**DTD.25.8.2016.**| |**EXT.P11**|**TRUE COPY OF THE PROCEEDINGS BEARING TLV(Q)3/75**| ||**DTD.30.9.2015.**| **RESPONDENT(S)' EXHIBITS** **-----------------------** **EXT.R6(a): TRUE COPY OF THE APPLICATION DTD.17.6.2016** **EXT.R6(b): TRUE COPY OF THE PROCEEDINGS OF THE SECRETARY LAND BOARD, THIRUVANANTHAPURAM DTD.25.2.2015. EXT.R6(c): TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, KOZHIKODE DTD.20.2.2016. EXT.R6(d): TRUE COPY OF THE TAX RECEIPT ISSUED BY THIS RESPONDENT IN FAVOUR OF PARATHODU GRANITE PVT. LTD.** **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) Nos.7365 & 28877 of 2016 ----------------------------------------------Dated this the 5[th] day of December, 2016** ## **JUDGMENT** The captioned writ petitions are filed seeking direction to the respective respondents to issue possession certificate. Even though the facts and circumstances differ, the question to be decided in both the cases are similar in nature, and therefore I heard them together and propose to deliver a common judgment. ## W.P.(C) No.7365 of 2016 2. Petitioner is the Director of Parathodu Granites (P) Ltd., Mysoormala, Kozhikode District. According to the petitioner, petitioner is having all statutory permits to extract and remove granite from 1 acre in Survey No.78/2A of Kumaranelloor Village, Kozhikode Taluk. Pursuant to the statutory permission granted, petitioner was conducting quarrying activity in the above said property. However, permit issued by the 5[th] respondent expired on 09.11.2015. Consequent to which, petitioner submitted application for renewing the license. Pursuant to the same, petitioner ## **W.P.(C) Nos.7365 & 28877 of 2016** 2 submitted application for possession certificate from the 6[th] respondent, but the 6[th] respondent rejected the same stating that there is an order from the Secretary, Land Board, bearing No.LB(E)9/9515/09, and therefore the same cannot be granted, as there is conditional violation of Sec.81 of the Kerala Land Reforms Act, 1963. When the petitioner approached for renewal of license, 5[th] respondent directed the petitioner to produce possession certificate from the 6[th] respondent. Petitioner filed Ext.P3 application before the 6[th] respondent for getting a possession certificate for producing the same before the 5[th] respondent. However, as per Ext.P4 letter dated 01.01.2016, the 6[th] respondent informed the petitioner that in order to renew the quarry permit, possession certificate cannot be issued, since the same is against Sec.81 of the Land Reforms Act. 3. When, in Ext.P5 order issued by the Land Board, it is stated that no possession certificate should be given if the property is used for other purposes other than for the purpose given to the assignee, the Government has assigned the land absolutely. It is also stated that the Land Revenue Commissioner has no power to issue such an order directing ## **W.P.(C) Nos.7365 & 28877 of 2016** 3 the authority not to issue possession certificate, and therefore the order passed by the Land Revenue Commissioner is arbitrary and illegal. These are the background facts in the said writ petition. ## W.P.(C) No.28877 of 2016 4. Petitioner is a registered Society, having registration No.83/72-73 under the Karnataka Societies Registration Act, 1960. Petitioner purchased a total extent of 3 Hectares 80.60 Ares of rubber plantation as per Document Nos.P2/2013/328/2015 and P3/2013/329/2015 of SRO, Kothamangalam from M/s. Isdale Plantations and M/s. Chitradale Plantations for a total consideration of Rs.2,26,00,000/-. The purchase of the property was for the specific purpose of setting up educational and social service projects in the area for the benefit of the downtrodden. The welfare projects conceived include educational institutions, children's village, Old Age Home, Skill Development Centre for College dropouts etc. Petitioner had problems in effecting mutation of the property and had to approach this Court by filing W.P.(C) No.37005 of 2015 seeking appropriate reliefs, and secured Ext.P5 judgment directing the respondents therein ## **W.P.(C) Nos.7365 & 28877 of 2016** 4 to consider the application submitted by the petitioner within one month from the date of receipt of a copy of the judgment. 5. Thereafter, petitioner submitted Ext.P6 application for certificate of possession, however, same was rejected by Ext.P9, projecting Ext.P4 communication dated 25.02.2015 issued by the 5[th] respondent, State Land Board. The 5[th] respondent State Land Board had issued Ext.P4, to the Chairman of the Taluk Land Board, Kothamangalam and the R.D.O., Kothamangalam issuing certain directions, for which 5[th] respondent has no right, authority or competency. The said notice was issued purportedly for regulating the category change of land exempted under Sec.81 of the Act. That apart, it is contended, Ext.P4 is issued _ultra vires_ the powers of the 5[th] respondent, and it is in violation of the provisions contained in the Kerala Land Reforms Act. Various stipulations in Ext.P4 show that the understanding of the 5[th] respondent about the provisions in the Kerala Land Reforms Act is totally lopsided. Ext.P4 ultimately, adversely affects the rights of citizens to hold and enjoy the property lawfully purchased by them to utilise it for useful purposes. One of the conditions stipulated in Ext.P4 was that the purchaser of the land will have to use ## **W.P.(C) Nos.7365 & 28877 of 2016** 5 the land only for the specified purpose for which exemption is granted and that once the property is converted into any other category, it would be reckoned for calculating the total ceiling area of the person who held the land as on 01.01.1970. It is thus challenging Ext.P9 order, declining to issue possession certificate to the petitioner, the said writ petition is filed. 6. Separate counter affidavits are filed in the writ petitions, but however, the contentions contained thereunder are substantially the same with respect to the question of law, therefore, I only venture to narrate the contentions raised by the respondents in common. The claims and demands and contentions raised by the petitioner in the writ petitions are denied. That apart, it is stated, the Kerala Land Board, Thiruvananthapuram had issued instructions to the District Collectors, regulating the use of properties exempted under Sec.81 of the Kerala Land Reforms Act, dated 25.02.2015, which are Exts.P4 and P5 respectively in the writ petitions, which is produced also as Ext.R6(b) in the counter affidavit in W.P.(C) No.7365 of 2016. In paragraph 11 of the said proceedings, the Revenue officials were restrained from issuing Revenue Certificates for the purpose of using exempted land ## **W.P.(C) Nos.7365 & 28877 of 2016** 6 for other purposes. Thereafter, the Principal Secretary to Government, Revenue Department issued other proceedings exempting paragraph 11. The District Collector also issued a proceeding pointing out that paragraph 11 of the proceedings of the Secretary, Land Board, Thiruvananthapuram has been withdrawn. The same is produced as Ext.R6(c) in the counter affidavit in W.P.(C) No.7365 of 2016. However, the exemptions granted to the occupants of the property is not available to the quarry operators. The Revenue Department only intended to issue Possession Certificate and other documents to the occupants of the land for the purpose of getting electric connection and also for producing before Local Self Government Institutions. The owner of the land has to obtain specific permission from the Government for conducting quarry operations in the exempted land before conducting any quarry operations. 7. It is also stated, petitioner cannot have any grievance against the denial of possession certificate with respect to the property in question. The Village Officer is competent to issue a possession certificate only to an owner in possession of a property. Therefore, it is contended that the ## **W.P.(C) Nos.7365 & 28877 of 2016** 7 owner in possession of the property so far as W.P.(C) No.7365 of 2016 is concerned, is M/s. Parathodu Granite Pvt. Ltd., and since the petitioner is not the owner in possession of the property, the respondent cannot issue any possession certificate in favour of the petitioner. It is further stated, petitioner has no _locus standi_ to file the writ petition. 8. In respect of the contentions raised in W.P.(C) No.28877 of 2016, it is contended that the activities sought to be undertaken by the petitioner are not qualified for exemption for land ceiling under the Kerala Land Reforms Act. It is also stated, in the decision reported in ' _**State Human Rights**_ ## _**Protection Centre & others v. State of Kerala and others'**_ [2009 (3) KHC 682], it was held that there is no restriction of alienation of land exempted under Sec.81 of the Kerala Land Reforms Act, the exempted land in the possession of the purchaser of the land shall have to be continued for the purpose for which the land had qualified for exemption. That apart, it is contended, there is no prohibition for transferring the land but the transferee can also use the land only for the purpose for which exemption was available. 9. Since a larger extent of land, from which Ext.P1 ## **W.P.(C) Nos.7365 & 28877 of 2016** 8 property was purchased, a plantation exempted under Sec.81 (1)(e) of the Act, such exemption runs with the land even after the transfer of new purchaser. That is the reason why the Land Board has issued Ext.P4 Circular. It is also stated that, the Land Board took into consideration the judgment of this Court reported in _**'Devassia R.V. & another v. Sub Registrar, Idukki & others'**_ [2015 (1) KHC 805]. In the said judgment, the question was whether the land exempted under the Kerala Land Reforms Act after transfer can be mutated in the name of the purchaser of the property. It is also contended, once the land comes under the category of plantation and qualified for exemption under Sec.81(1)(e) of the Act, the said entire extent of land, exemption of plantation has to be taken as a single parcel of land and the plantation activity is the reason for such exemption. If such exempted plantation property is to be transferred to third persons and after such transfer, the property is permitted to be converted for other purpose, the spirit of exemption under Sec.81(1)(e) of the Act will be violated. Other examples are cited in order to substantiate the contention so put forth by the respondents. It is also stated, the purpose of exemption is to ensure ## **W.P.(C) Nos.7365 & 28877 of 2016** 9 agricultural plantation continues as such without fragmentation. These are the background facts available for deciding the issues raised in the writ petitions. 10. Heard Sri. George Thomas Mevada, learned Senior Counsel for the petitioner in W.P.(C) No.28877 of 2016, and Sri. T.G. Rajendran, learned counsel appearing for the petitioner in W.P.(C) No.7365 of 2016, Sri. Renjith Thampan, learned Additional Advocate General, and Sri. Jafar Khan Y., learned Government Pleader appearing for the respondents. Perused the documents on record and the pleadings put forth by the respective parties. 11. The question to be considered in these writ petitions centres round the communication issued by the Secretary, Land Board dated 25.02.2015, which communication is common in both the writ petitions, even though the same are addressed to different Revenue officials. The possession certificate is declined to the petitioners in the writ petitions on the basis of the prohibition contained under the said communication issued by the Secretary, Land Board. The contents of the communication are basically the contentions raised by the respondents in the counter affidavit/statement ## **W.P.(C) Nos.7365 & 28877 of 2016** 10 filed in the writ petitions, and relying on Sec.81 of the Kerala Land Reforms Act, 1963. According to the Secretary, Land Board, when a large extent of property is fragmented consequent to purchase of the same or otherwise, in view of the exemption provided under Sec.81(1)(e), the purchaser will have to retain the same as a plantation, failing which, it will come under the provisions of the ceiling area. In my considered opinion, paragraph 11 of the said communication was withdrawn by the Principal Secretary to Government, Revenue Department, vide his order dated 03.02.2016, bearing No.79256/N3/2015/Revenue, produced as Ext.P6 in W.P.(C) No.7365 of 2016. Paragraph 11 of the communication prohibits the exempted properties from carrying out any constructions, securing electric connection and prohibiting the Revenue Department from issuing any certificates to Local Self Government Institutions, Electricity Board etc. etc. Apparently, construction in a property was taken care of under paragraph 11 of the communication. The same is clearly taken away in Ext.P6 and directed to issue necessary direction to the Revenue authorities to issue possession certificate to the applicants. It is clearly stated in Ext.P6 that the stipulations ## **W.P.(C) Nos.7365 & 28877 of 2016** 11 contained in paragraph 11 of the communication is withdrawn and necessary directions are to be issued to the Revenue officials. 12. Larger questions are raised in the writ petitions, however, I am of the considered opinion that in view of the relief sought for by the petitioner, in respect of non-issuance of possession certificate, I am confining the relief to the said extent alone and leave open the other questions to be decided at a later point of time. 13. Apparently, Ext.P9 order issued by the 2[nd] respondent dated 17.06.2016 in W.P.(C) No.28877 of 2016 and Ext.P4 order passed by the 6[th] respondent in W.P.(C) No.7365 of 2016 are without taking note of the order of the Principal Secretary to Government, Revenue Department, dated 03.02.2016, withdrawing the stipulations in paragraph 11 of the communication issued by the Secretary, Land Board dated 25.02.2015. In that view of the matter, I set aside Exts.P9 and P4 respectively in the said writ petitions. Moreover, petitioners have only sought for issuance of a possession certificate. The Village Officer will have to make necessary enquiry, and if it is found that petitioners are in ## **W.P.(C) Nos.7365 & 28877 of 2016** 12 actual possession of the property, in accordance with law, the Village Officer is duty bound to issue a certificate to the petitioners without making any adverse endorsements. 14. Therefore, there will be a direction to the competent among the respondents in the writ petitions to take on board the respective applications submitted by the petitioners and issue possession certificate in favour of the holder of the property, at the earliest and at any rate, within three weeks from the date of receipt of a copy of this judgment. The writ petitions are allowed to the above extent. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/07.12.2016