Mohanan P.K. vs State Of Kerala
2021 Latest Caselaw 5194 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

 FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942

                  WP(C).No.2504 OF 2021(K)


PETITIONER/S:

             MOHANAN P.K., AGED 68 YEARS
             S/O.KOCHUNNI KUNJUKUTTAN, RESIDING AT
             MUKKANNAM CHIRAYIL HOUSE, PERMBALAM VILLAGE,
             CHERTHALA, ALAPPUZHA DISTRICT 688 570

             BY ADVS.
             SRI.M.R.JAYAPRASAD
             SHRI.ROOPKUMAR G.

RESPONDENT/S:

     1       STATE OF KERALA
             REP.BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
             REVENUE (A) DEPARTMENT, GOVERNMENT
             SECRETARIAT, THIRUVANANTHAPURAM 695 001

     2       THE DISTRICT COLLECTOR
             COLLECTORATE, ALLAPPUZHA 688 001

     3       THAHASILDAR
             CHERTHALA TALUK OFFICE, CHERTHALA 688 524


OTHER PRESENT:

             SMT A.C.VIDHYA - GOVERNMENT PLEADER

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 12.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                      -2-
W.P.(C). No. 2504 of 2021



                                  JUDGMENT

The petitioner has filed this writ petition under Article 226

of the Constitution of India, seeking a writ of certiorari to

quash Ext.P16 order dated 12.06.2019 of the 3 rd respondent

Tahsildar and seeking a writ of mandamus commanding the

said respondent to pass appropriate orders afresh, after

considering Ext.P17 petition dated 06.01.2020 submitted by

the petitioner. The grievance of the petitioner is against the

denial of 'Kuthakapattam' in respect of 5 Acres Puramboku land

in old Sy.No.36/1 of Vaduthala Mattathibhagam Village, later

Arookutty Village and presently Perumbalam Village in

Cherthala Taluk. Ext.P16 order is one passed by the 3 rd

respondent pursuant to the directions contained in Ext.P13

judgment of this Court dated 17.12.2018 in W.P.(C) No.40989

of 2018 and connected case. Paragraphs 6 and 7 of that

judgment read thus:

'6. Taking note of the limited relief sought by the petitioner, it is ordered that in the interest of justice that the 3rd respondent Tahsildar will take up the request made by the petitioner in Ext.P-6 application seeking extension of the lease as well as Ext.P-10 representation seeking correction of the description of the property without much delay and after conducting necessary

W.P.(C). No. 2504 of 2021

enquiries and after affording reasonable opportunity of being heard to the petitioner, shall take considered decision thereon without much delay preferably within a period of 2 months from the date of production of a certified copy of this judgment.

7. In this process it is ordered that the 3rd respondent may ensure that a proper and effective enquiry is conducted on the request in Ext.P-10 representation to correctly ascertain as to whether the land covered by Exts.P-1 & P-5 is infact "Tharishu" as shown therein or whether it is "Government Puramboku Land/ Kayal Puramboku Land" as shown in Ext.P-12 etc. Such enquiry may be got done by the competent officials concerned with due prior notice to the petitioner and copy of the said enquiry report should also be given to the petitioner in advance and only thereafter a final decision should be rendered by the 3 rd respondent on the request made by the petitioner in Exts.P-6 & P-10 etc. It is also clarified that in case the petitioner wants to file any further comprehensive representation in the matter for ventilating his grievances, he may do so with necessary supporting materials which shall be submitted by him within a period of 2 weeks from the date notified for receiving certified copy of this judgment upon which the 3rd respondent will ensure that the matter in such additional representation should also be taken into account for deciding the request made by the petitioner in Exts.P-6 & P-10 etc.' (underline supplied)

2. One of the grievances raised in this writ petition is

that the 3rd respondent Tahsildar passed Ext.P16 order contrary

W.P.(C). No. 2504 of 2021

to the specific direction contained in Ext.P13 judgment.

3. On 01.02.2021, when this writ petition came up for

admission, the learned Government Pleader was directed to get

instructions, as to whether Ext.P16 order is one issued by the

3rd respondent Tahsildar with notice to the petitioner and after

complying with the specific direction contained in Ext.P13

judgment.

4. Heard the learned counsel for the petitioner and

also the learned Government Pleader appearing for

respondents.

5. The specific direction contained in Ext.P13 judgment

of this Court in W.P.(C).No.40989 of 2018 and connected case

to the 3rd respondent Tahsildar is to ensure that a proper and

effective enquiry is conducted on the request made by the

petitioner in Ext.P10 representation dated 25.06.2018 to

correctly ascertain as to whether the land covered by Exts.P1

and P5 is in fact "Tharishu" as shown therein or whether it is

"Government Puramboke Land/Kayal Puramboke Land" as

shown in Ext.P12 therein. The 3 rd respondent was directed to

get such enquiry done by a competent official with prior notice

to the petitioner. It was also ordered that a copy of he enquiry

W.P.(C). No. 2504 of 2021

report should be given to the petitioner in advance and only

thereafter a final decision shall be rendered by the 3 rd

respondent on the request made by the petitioner.

6. The learned Government Pleader, on instructions,

would submit that a copy of the report was not furnished to the

petitioner before passing Ext.P16 order.

7. For the aforesaid reason, Ext.P16 order cannot be

sustained, since the procedure adopted by the 3 rd respondent is

in violation of the principles of natural justice and also the

specific direction contained in Ext.P13 judgment.

In such circumstances, this writ petition is disposed of by

setting aside Ext.P16 order, for the aforesaid reason, and by

directing the 3rd respondent Tahsildar to reconsider the matter

and take an appropriate decision, strictly in terms of the

directions contained in Ext.P13 judgment, as expeditiously as

possible, at any rate, within a period of two months from the

date of receipt of a certified copy of this judgment.

Sd/-

ANIL K.NARENDRAN JUDGE das

W.P.(C). No. 2504 of 2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF RELEVANT PAGE OF THE KUTHAKAPATTOM REGISTER OF THE AROOKUTTY VILLAGE FOR THE PERIOD 1956 TO 1968.

EXHIBIT P2 TRUE COPY OF THE PATTA ISSUED CERTIFICATE NO.908 DATED 22.7.1978.

EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED 23.3.2010 FOR THE YEAR 2010-11

EXHIBIT P4 TRUE COPY OF THE ASSESSMENT REGISTER FOR THE PERIOD FROM 1988-2012

EXHIBIT P5 TRUE COPY OF THE LEASE RENEWAL ORDER DATED 23.1.2010 FOR 3 YEARS, FROM 1.4.09 TO 12.

EXHIBIT P6 TRUE COPY OF APPLICATION DATED 12.12.2013

EXHIBIT P7 TRUE COPY OF THE LITHO MAP SHOWING THE SURVEY NUMBER 36/1 PROPERTY AND SURROUNDINGS.

EXHIBIT P8 TRUE COPY OF THE COVERING LETTER AND THE REPLY NO.H3.23971/12 DATED 11.4.2016

EXHIBIT P9 TRUE COPY OF THE REPLY NO.23978/12 DATED 16.6.2018 RECEIVED FROM THE 3RD RESPONDENT BY THE BROTHER OF THE PETITIONER

EXHIBIT P10 TRUE COPY OF THE REQUEST DATED 25.6.2018 BY THE PETITIONER AND 2 OTHERS.

EXHIBIT P11 TRUE COPY OF APPLICATION ON 26.7.2018

EXHIBIT P12 TRUE COPY OF THE APPLICATION, THE REPORT AND THE ACCOMPANYING DOCUMENTS UNDER THE RIGHT TO INFORMATION ACT.

W.P.(C). No. 2504 of 2021

EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 17.12.2018 OF THIS HON'BLE COURT IN W.P.(C) NO.40953/2018

EXHIBIT P14 TRUE COPY OF NOTICE HEARING ON 20.2.2019 COPY OF NOTICE DATED 14.2.2019

EXHIBIT P15 TRUE COPY OF THE REPORT OF THE TALUK SURVEYOR DATED 12.6.2019

EXHIBIT P16 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT NO.H3-23971/2012 DATED 12.6.2019

EXHIBIT P17 TRUE COPY OF THE APPLICATION DATED 6.1.2020 FOR RECONSIDER.