Haibeen Thomas vs The District Collector
2021 Latest Caselaw 9010 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

    THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942

                       WP(C).No.26292 OF 2020(J)


PETITIONER:

               HAIBEEN THOMAS, AGED 50 YEARS
               S/O PALAMKUNNEL THOMAS, RESIDING AT
               IRUPATHEKKAR KARA, UDUMBANCHOLA TALUK,
               BAISON VALLEY VILLAGE, POTTANKADU P O,
               IDUKKI DISTRICT-685565.

               BY ADVS.
               SRI.K.N.ABHILASH
               SRI.SUNIL NAIR PALAKKAT

RESPONDENTS:

      1        THE DISTRICT COLLECTOR
               IDUKKI DISTRICT, COLLECTORATE,
               IDUKKI, PIN-680003.

      2        THE TAHSILDAR
               DEVIKULAM TALUK,
               IDUKKI DISTRICT, PIN-685613.

      3        THE VILLAGE OFFICER
               KOTTAKAMBOOR VILLAGE,
               IDUKKI DISTRICT,
               PIN-685615.

      4        THE REVENUE DIVISIONAL OFFICER
               DEVIKULAM, IDUKKI DISTRICT, PIN-685613.

      5        LAND REVENUE JOINT COMMISSIONER
               AND SPECIAL OFFICER, KURINJIMALA,
               LAND REVENUE COMMISSIIONERATE,
               THIRUVANANTHAPURAM, PIN-692001.

               R1-R5 BY GOVERNMENT PLEADER SMT A.C.VIDHYA

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.26292 OF 2020(J)

                                       2

                                 JUDGMENT

The petitioner has filed this writ petition under Article 226 of

the Constitution of India, seeking a writ of mandamus commanding

the 1st respondent District Collector to consider Ext.P2 application

without delay. The petitioner has also sought for a writ of

mandamus commanding respondents 1 and 2 to issue the

'nijasthithi certificate' to the petitioner. Going by the averments in

the writ petition, the petitioner and his wife purchased 2.89 hectors

of land in Kottakamboor Village, by virtue of Ext.P1 Sale Deed

No.3088/2005 of Sub Registrar Office, Devikulam. The petitioner

submitted Ext.P2 application before the 3 rd respondent Village

Officer for issuing 'nijasthithi certificate' for obtaining a bank loan.

The petitioner had earlier approached this Court in W.P.

(C).No.10043 of 2020 and that writ petition was disposed of by

Ext.P3 judgment dated 26.05.2020 by directing the 4 th respondent

Revenue Divisional Officer to consider Ext.P2 application made by

the petitioner. The 4th respondent, by Ext.P4 communication dated

26.08.2020, forwarded the same to the 1 st respondent District

Collector. Alleging inaction on the part of the respondents, the

petitioner has filed this writ petition seeking the aforesaid relief. WP(C).No.26292 OF 2020(J)

2. On 06.01.2021, when this writ petition came up for

consideration, the learned Government Pleader was directed to get

instructions and file statement.

3. A statement on behalf of the 2 nd respondent is placed on

record, paragraph 4 of that statement reads thus:

"4. It is submitted that the petitioner had already filed W.P.

(C) No.10043/2020 for the same relief as in this Writ Petition. The Hon'ble High Court by judgment dated 26.05.2020 directed Revenue Divisional Officer, Devikulam to consider petitioner's application for Nijasthithi. In compliance with the aforesaid judgment R.D.O considered the application and passed the proceedings, No.RDODVM/1185/2020-B2 dated 26.08.2020, in which it was stated that 'As per the order No.L R J 28831/2019 dated 03.08.2020, the District Collector, Idukki has to consider the Nijasthithi application submitted by the petitioner and the files concerned has been transferred to District Collectorate from Revenue Divisional Office for further action. Again District Collector, Idukki has transferred the same to this office recently as per direction from Land Revenue Commissioner to take further proceedings on the matter. True copy of the letter received by Taluk office, Devikulam on 28.01.2021 from District Collector is produced herewith and marked as Annexure R2(a). At present the file regarding issuance of 'Nijasthithi Certificate' is under processing in this office. To take a decision on petitioner's Nijasthithi application, verification WP(C).No.26292 OF 2020(J)

of patta file and Thandaper Register is required, where both documents are kept in Revenue Divisional Office, Devikulam. Hence it is submitted that one month more time may be granted to complete entire proceedings regarding the matter."

4. Heard the learned counsel for the petitioner and also the

learned Government Pleader appearing for the respondents.

5. The learned counsel for the petitioner would point out

that, as stated in the statement filed by the 2 nd respondent, the

request made by the petitioner in Ext.P2 is now pending

consideration before the 2nd respondent, which requires an early

disposal.

6. The learned Government Pleader would submit that the

2nd respondent will take an appropriate decision on the request

made by the petitioner in Ex.P2, within a time limit to be fixed by

this Court.

7. Having considered the submissions made by the learned

counsel on both sides, this writ petition is disposed of directing the

2nd respondent to consider and pass appropriate orders on Ext.P2

application made by the petitioner, if that petition is in order and

pending consideration, with notice to the petitioner and after

affording him an opportunity of being heard, within a period of one WP(C).No.26292 OF 2020(J)

month from the date of receipt of a certified copy of this judgment.

8. 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.

9. Therefore, in terms of the direction contained in this

judgment, the 2nd respondent 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/-

JV ANIL K.NARENDRAN, JUDGE WP(C).No.26292 OF 2020(J)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE SALE DEED NO.3088/2005 OF SRO DEVIKULAM DATED 13.09.2005 EXECUTED BY NAGAYYA MUTHALIYAR AND ANOTHER IN FAVOUR OF THE PETITIONER AND HIS WIFE.

EXHIBIT P2 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 07.03.2019 BEFORE THE 3RD RESPONDENT.

EXHIBIT P3 THE TRUE COPY OF THE JUDGMENT DATED 26.05.2020 ON THE FILES OF THIS HON'BLE COURT IN WPC NO.10043/2020.

EXHIBIT P4 THE TRUE COPY OF THE PROCEEDINGS DATED 26.08.2020 IN FILE NO.RDODVM/1185/2020- B2.

PETITIONER'S/S EXHIBITS:

ANNEXURE R2(A) THE TRUE COPY OF LETTER RECEIVED BY TALUK OFFICE, DEVIKULAM ON 28.01.2021 FROM THE DISTRICT COLLECTOR