Rajendran Asari vs The Revenue Divisional Officer
2023 Latest Caselaw 590 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
    THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
                       WP(C) NO. 15020 OF 2017
PETITIONER:

          RAJENDRAN ASARI
          AGED 54 YEARS
          R.I.NIVAS,NEAR Y.M.A.JUNCTION,
          PEROOR,VELLALLOOR VILLAGE,
          CHIRAYINKEEZHU TALUK,
          THIRUVANANTHAPURAM DISTRICT.
          BY ADV SRI.M.R.RAJESH


RESPONDENTS:

    1     THE REVENUE DIVISIONAL OFFICER (RDO)
          REVENUE DIVISIONAL OFFICE,CIVIL
          STATION,KUDAPPANAKUNNU,THIRUVANANTHAPURAM,PIN-695043.
    2     THE TAHSILDAR
          CHIRAYOINKEEZHU TALUK,TALUK
          OFFICE,ATTINGAL,THIRUVANANTHAPURAM DISTRICT,PIN-695101.
    3     THE VILLAGE OFFICER
          VELLALLOOR VILLAGE OFFICE,PONGANADU-PUTHUSSERYMUKKU
          RD,CHINDRANALLOOR,CHIRAYINKEEZHU AND
          TALUK,THIRUVANANTHAPURAM DIST.PIN-696601.
          BY ADV GOVERNMENT PLEADER


          SRI.JOBY JOSEPH,SENIOR GOVERNMENT PLEADER



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C)NO. 15020 OF 2017
                                  2


                            JUDGMENT

Dated this the 12th day of January, 2023

This writ petition is filed by the petitioner challenging

Exts.P9 and P11 orders passed by the Tahsildar as well as

the Revenue Divisional Officer as per the provisions of the

Kerala Land Conservancy Act, 1957 and the Kerala Land

Conservancy Rules, 1958, whereby the petitioner was

directed to vacate the land occupied by the petitioner in

Resurvey No.74/6 of Vellalloor Village, Chirayinkeezhu

Taluk, Thiruvananthapuram District.

2. The case projected by the petitioner in this writ

petition is that, the petitioner has purchased the property

situated in the aforesaid survey no. as per Exts.P1, P3 and

P4 registered documents. It is also the case of the petitioner

that the petitioner has never encroached into any

Government Purampokku land. Anyhow, Ext.P5 notice dated

17.07.2013 was issued by the Village Officer, whereby the

petitioner was directed to stop the activities carried on in WP(C)NO. 15020 OF 2017

the alleged Sarkar property. Thereafter, the petitioner was

served with a notice under Form V, Rule 9 of the Kerala

Land Conservancy Rules, to which petitioner states that the

petitioner has submitted an objection and Ext.P9 order was

passed by the Additional Tahsildar bearing No.1006/2013

dated Nil.

3. Being aggrieved by Ext.P9, the petitioner has

preferred a statutory appeal before the Revenue Divisional

Officer evident from Ext.P10. The Revenue Divisional Officer,

after considering the objection submitted by the petitioner

has passed Ext.P11 order dated 01.11.2016 affirming the

order passed by the Tahsildar. It is thus challenging the

legality and correctness of the said orders, this writ petition

is filed.

4. A detailed counter affidavit is filed by the 1 st

respondent refuting the allegations and claims and demands

raised in the writ petition. It is further submitted that, as

per the Basic Tax Register, the property under Block No.3,

Survey No.74/6 of Vellalloor Village is recorded as "Sarkar WP(C)NO. 15020 OF 2017

Fallow Land". According to the 1 st respondent, in the above

said Survey No,.12.20 Ares of land was encroached upon by

the petitioner. It was accordingly then the case was

registered under the Kerala Land Conservancy Act and C

Form notice was served to the petitioner for eviction. The

sum and substance of the contention advanced is that, the

procedure contemplated as per the Kerala Land

Conservancy Act, 1957 and the Kerala Land Conservancy

Rules, 1958, were absolutely followed by the Authority

before passing the final order.

5. I have heard the learned counsel for the

petitioner, Sri.M.R.Rajesh and the learned Senior

Government Pleader, Sri.Joby Joseph.

6. In my considered opinion, the findings rendered

by the Statutory Authorities in Exts.P9 and P11 orders are

absolutely factual in nature, which can only be identified by

a fact finding body on the basis of the claim raised by the

petitioner. However, the learned counsel for the petitioner

has a contention that, the Tahsildar relied upon a report of WP(C)NO. 15020 OF 2017

the Village Officer, copy of which is not served on the

petitioner and therefore the petitioner could not assimilate

the circumstances pointed out by the Village Officer and

thus prejudiced the petitioner in so far as the participation

in the proceedings taken by the Tahsildar is concerned. It is

further pointed out that the Revenue Divisional Officer has

just affirmed the order of the Tahsildar, without taking note

of the said contention and other contentions raised by the

petitioner.

6. I have perused Exts.P9 and P11 orders. Ext.P9 is

not dated and in my considered opinion Ext.P9 is a cryptic

order wherein the contentions raised by the petitioner are

not traversed at all. So also, I find force in the contention

raised by the petitioner that no copy of the report of the

Village Officer was served on the petitioner. Therefore, it is

violative of the principles of natural justice. It is well settled

in law that, whenever a document is relied upon by a

Statutory Authority to arrive at a conclusion, the copy of the

same has to be served on the aggrieved person. This is not WP(C)NO. 15020 OF 2017

done in the case on hand. Moreover, from Ext.P11 order

passed by the Revenue Divisional Officer it is clear that,

none of the contentions raised in Ext.P10 appeal was taken

into account by the Revenue Divisional Officer. It is true that

the petitioner has not availed the remedy available to the

petitioner under the Kerala Land Conservancy Act, 1957 by

preferring a revision before the Land Revenue

Commissioner. However, since the order passed by the

Tahsildar itself is violative of the principles of natural justice,

having not served a copy of the report of the Village Officer,

I am inclined to interfere exercising the powers conferred

under Article 226 of the Constitution of India. Therefore,

Exts.P9 and P11 orders are set aside and consequently the

matter is remitted back to the Additional Tahsildar,

Chirayinkeezhu, for reconsideration. There will be a

direction to the Additional Tahsildar to issue a notice to the

petitioner and finalize the proceedings at the earliest

possible, after providing an opportunity for hearing and

participation to the petitioner, at any rate within two months WP(C)NO. 15020 OF 2017

from the date of receipt of a copy of this judgment. The

petitioner will be at liberty to produce any additional

documents before the Additional Tahsildar within two weeks,

enabling the Additional Tahsildar to conclude the

proceedings as directed.

The writ petition is disposed of as above.

Sd/-

SHAJI P. CHALY JUDGE

AP WP(C)NO. 15020 OF 2017

APPENDIX OF WP(C) 15020/2017 PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE SALE DEED NO.1035/1987 DATED 20.03.1987 SRO, KILIMANOOR,EXECUTED BY THYAGARAJAN IN FAVOUR OF THE PETITIONER

EXHIBIT P2 A TRUE COPY OF THE SALE DEED 60/1983 OF KILIMANOOR SRO DATED 05.01.1983 EXECUTED BY PUSHPANGADA KURUP IN FAVOUR OF THYAGARAJAN

EXHIBIT P3 A TRUE COPY OF THE SALE DEED NO673/1990 DATED 21.06.1990 OF NAGAROOR SRO EXECUTED BY SMT.SAROJINI IN FAVOUR OF THE PETITIONER

EXHIBIT P4 A TRUE COPY OF THE SALE DEED NO.1159/1992 DATED 07.101992 SRO, NAGAROOR EXECUTED BY AMBUJAKSHI IN FAVOUR OF THE PETITIONER

EXHIBIT P5 A TRUE COPY OF THE STOP NOTICE NO.159/2013 DATED 17.07.2013 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P6 A TRUE COPY OF THE ADVOCATE NOTICE DATED 04.10.2013 ISSUED TO THE 3RD RESPONDENT

EXHIBIT P7 A TRUE COPY OF THE POSTAL ACKNOWLEDGMENT CARD DATED 05.10.2013 SIGNED BY THE 3RD RESPONDENT

EXHIBIT P8 A TRUE COPY OF THE NOTICE NO.K4.51006/2013 IN KLC48/13 DATED 28.10.2013 ISSUED BY 2ND RESPONDENT

EXHIBIT P9 A TRUE COPY OF THE CRYPTIC NON SPEAKING ORDER NO.XXII.21/13 ISSUED BY THE 2ND RESPONDENT

EXHIBIT P10 A TRUE COPY OF THE APPEAL FILED BY THE PETITIONER AGAINST EXT.P9

EXHIBIT P11 A TRUE COPY OF THE ORDER NOD/4271/14/D.DIS DATED 01.11.2016 OF THE 1ST RESPONDENT DISMISSING EXT.P10 APPEAL