Elizabeth Jacob vs State Of Kerala
2024 Latest Caselaw 9953 Ker

Kerala High Court

Elizabeth Jacob vs State Of Kerala on 5 April, 2024

Author: P Gopinath

Bench: P Gopinath

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
        FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
                       WP(C) NO. 18123 OF 2014
PETITIONERS:

    1       ELIZABETH JACOB
            NEDIYUZHATHIL, VELLAPPALLY LANE, KOTTAYAM-686 001.
    2       ADDL. P2. C.T. JACOB
            AGED 78 YEARS
            S/O. C.T. THOMAS, KELACHANDRA HOUSE, PANACHIKADU
            VILLAGE, CHANNANIKADU P.O., KOTTAYAM, KERALA -686 533
            IS IMPLEADED AS ADDITIONAL 2ND PETITIONER IN THE WRIT
            PETITION AS PER ORDER DATED 14.08.2023 IN I.A. 1/2023
            IN WP(C) NO.18123/2014.
            BY ADVS.
            SRI.JOSEPH MARKOSE (SR.)
            ABRAHAM JOSEPH MARKOS
            SRI.V.ABRAHAM MARKOS
            SRI.ABRAHAM VARGHESE THARAKAN
            SRI.BINU MATHEW
            SRI.TOM THOMAS KAKKUZHIYIL
            SHARAD JOSEPH KODANTHARA
            JOHN VITHAYATHIL
            AIBEL MATHEW SIBY
            P.G.CHANDAPILLAI ABRAHAM
            ISAAC THOMAS
            ALEXANDER JOSEPH MARKOS


RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY ITS CHIEF SECRETARY,
            GOVERNMENT OF KERALA, CIVIL SECRETARIAT,
            THIRUVANANTHAPURAM-695 001.
    2       DISTRICT COLLECTOR,
            PAINAVU, IDUKKI-685 603.
    3       THE TAHSILDAR,
            PEERMADE-685 531.
    4       THE REVENUE DIVISIONAL OFFICER,
            DEVIKOLAM-685 613.
    5       THE DIRECTOR GENERAL OF POLICE,
            THIRUVANANTHAPURAM-695 001.
    6       ADDITIONAL DIRECTOR GENERAL OF POLICE,
            AP BATTALIONS, ARMED POLICE HEAD QUARTERS,
            THIRUVANANTHAPURAM-695 001.
 WP(C) NO. 18123 OF 2014
                                   2

    7          COMMANDANT,
               KAP 5TH BATTALION, MANIYAR,
               PATHANAMTHITTA-689 662.


               BY ADVS.
               SRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL
               SRI.T.S.SHYAM PRASANTH, GOVERNMENT PLEADER


        THIS    WRIT   PETITION    (CIVIL)   HAVING   COME   UP    FOR
ADMISSION       ON   05.04.2024,   THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 18123 OF 2014
                                3

                          JUDGMENT

The petitioner purchased certain property in a sale

conducted under the provisions of the Revenue Recovery Act.

Even though the Sale Certificate was issued, possession of the

property was not handed over to the petitioner on the premise

that the property was forest land. That issue finally ended in

Ext.P4 judgment of the Supreme Court, through which the

property was directed to be handed over to the petitioner.

According to the petitioner, after obtaining possession of the

property, the petitioner has carried on plantation activities and

had also constructed a house thereon. It is the case of the

petitioner that the access to the property was through a property

belonging / in the possession of the Kerala Police, which is being

used as a Firing Range by the Kerala police. Since the access to

the property was only through the property in the possession of

the Kerala Police, the petitioner petitioned the Government and

the Government through Ext.P10 order allowed the petitioner to

construct a road at her cost on the boundary of the property

belonging / in the possession of the Kerala Police and the

petitioner constructed a road using her own funds. The WP(C) NO. 18123 OF 2014

permission granted to the petitioner for construction of the road

was subject to the condition set out in Ext.P10. The petitioner is

aggrieved by the fact that the petitioner was later prevented from

using the road to enter upon her property and on enquiry it was

learnt that permission granted by Ext.P10 Government Order had

been canceled through Ext.P14 Government Order.

2. The learned counsel appearing for the petitioner

would submit that without going into any other issue, Ext.P14

order is liable to be set aside as it was issued without affording an

opportunity of hearing to the petitioner. It is submitted that the

petitioner has valid contentions to take if the Government

proposes to cancel Ext.P10 Government Order including the

contention that when the petitioner has effected improvements

upon the land in question by constructing a road, the permission

granted cannot be canceled on account of the provisions

contained in Section 60(b) of the Indian Easements Act. It is

submitted that Ext.P14 order may therefore be set aside and a

fresh decision may be directed to be taken after affording to the

petitioner an opportunity of being heard and after giving an

opportunity to the petitioner to raise all contentions before the WP(C) NO. 18123 OF 2014

competent authority.

3. Sri.Ashok.M.Cherian, the learned Additional

Advocate General appearing for the respondents would submit

that the property in question is situated almost on the border

between the State of Kerala and State of Tamil Nadu and is an

area which is affected by Maoist activities. It is submitted that the

Government had to take a decision as contained in Ext.P14 on the

basis of a report submitted by the Additional Director General of

Police, Armed Police Battalion (which is on record as Ext.P23)

regarding the safety of the Police Camp and the Firing Range. It

is submitted that the petitioner has, admittedly, no right over the

land in question and therefore, the petitioner is not entitled to

any relief in this writ petition.

4. Having heard the learned counsel for the petitioner

and the learned Additional Advocate General, I am of the opinion

that the petitioner is entitled to succeed on the short ground that

Ext.P14 was issued in violation of Principles of Natural Justice. It

appears from Ext.P10 that the petitioner was permitted to use

certain land belong to the Government as access to her property

after effecting certain improvements upon it. If for any reason the WP(C) NO. 18123 OF 2014

competent authority wanted to cancel the said permission, the

minimum requirement of the law was that the petitioner must

have been put on notice and heard before an order was passed

canceling the permission granted through Ext.P10. There is

nothing on record to suggest that Ext.P14 was issued after

affording to the petitioner an opportunity of being heard. The

petitioner also has certain contentions to be raised before the

competent authority. Therefore, I am of the view that Ext.P14

order is liable to be set aside.

Accordingly, this writ petition is allowed. Ext.P14 is

quashed. Considering the contentions raised before this Court, I

direct that the matter shall be considered by the Principal

Secretary to Government in the Home Department as Ext.P10

order was issued by that officer. The Principal Secretary,

Government of Kerala, Department of Home, Government

Secretariat, Thiruvananthapuram is suo motu impleaded as

additional 8th respondent to the writ petition. The additional 8 th

respondent shall consider the matter afresh, after affording an

opportunity of hearing to the petitioner. All contentions are left

open to be raised before the additional 8th respondent. I make it WP(C) NO. 18123 OF 2014

clear that I have not expressed any opinion on the merits of the

matter and it is for the additional 8 th respondent to take a

decision in accordance with the law. The additional 8th

respondent shall endeavor to pass fresh orders, as directed above,

within a period of four months from the date of receipt of a

certified copy of this judgment.

Sd/-

GOPINATH P. JUDGE DK WP(C) NO. 18123 OF 2014

APPENDIX OF WP(C) 18123/2014 PETITIONER EXHIBITS EXHIBIT P1. TRUE COPY OF SALE CONFIRMATION DATED 28-7-1998.

EXHIBIT P2 TRUE COPY OF SALE CERTIFICATE DATED 7- 10-1998.

EXHIBIT P3 TRUE COPY OF MAHAZAR DATED 9-6-1999. EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 21-8- 2008 OF THE HON'BLE SURPEME COURT IN CIVIL APPEAL NO. 8032/2001.

EXHIBIT P5 TRUE COPY OF OWNER SHOP CERTIFICATE DATED 20-12-2006.

EXHIBIT P5A. TRUE COPY OF THE TAX RECEIPT DATED 07.05.2014 EXHIBIT P6 TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER DATED 15-11-1999` EXHIBIT P7 TRUE COPY OF THE LETTER NO. C4-1666/04 DATED 8-9-2004 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE LETTER NO. B2- 538/2004 DATED 14-9-2004 ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT P9 TRUE COPY OF THE LETTER NO. C9-2123/04 DATED 15-9-2004 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE GOVERNMENT ORDER NO.

RT 164/05/HOME DATED 18-1-2005.

EXHIBIT P11 TRUE COPY OF THE AGREEMENT DATED 15-3- 2005 EXECUTED BY THE PETITIONER.

EXHIBIT P12 TRUE COPY OF THE ORDER DATED 15-3-2005 ISSUED BY THE 7TH RESPONDENT.

EXHIBIT P13 TRUE COPY OF THE LOCATION SKETCH/PROPOSED ROAD MAP.

EXHIBIT P14 TRUE COPY OF THE GO NO. 1612/07/HOME DATD 15-6-2007.

EXHIBIT P15 TRUE COPY OF THE LETTER DATED 13-2-

                  2007 ISSUED     BY THE     DGP TO     THE
                  PRINCIPAL       SECRETARY,        HOME(E)
                  DEPARTMENT, THIRUVANANTHAPURAM.
 EXHIBIT P16      TRUE   COPY   OF     THE     LETTER   NO.

30/CAMP/IGP/APB/2007 DATED 18-5-2007 ISSUED BY THE IGP.

WP(C) NO. 18123 OF 2014

EXHIBIT P17 TRUE COPY OF THE LETTER NO. G2- 6985/2011/KAP5 BN. DATED 22-8-2011 OF THE 7TH RESPONDENT TO THE STATE POLICE CHIEF, THIRUVANANTHAPURAM.

EXHIBIT P18 TRUE COPY OF THE LETTER NO.

J2/55197/11 DATED 15-10-2011 ISSUED BY THE STATE POLICE CHIEF.

EXHIBIT P19 TRUE COPY OF THE PETITIONER'S REPRESENTATION 01-11-2011.

EXHIBIT P20 TRUE COPY OF THE PETITIONER'S REPRESENTATION DATED 24-11-11 TO THE 5TH RESPONDENT.

EXHIBIT P21 TRUE COPY OF THE LETTER NO.

J2/55197/11 DATED 23-12-2011 OF THE STATE POLICE CHIEF.

EXHIBIT P22 TRUE COPY OF THE REPORT DATED 2-3-2012 OF THE 7TH RESPONDENT.

EXHIBIT P23 TRUE COPY OF THE SECURITY AUDIT REPORT DATED 31-5-2013 OF THE 6TH RESPONDENT TO THE STATE POLICE CHIEF.

EXHIBIT P24 TRUE COPY OF THE LETTER NO.

J2/55197/11 DATED 25-6-2013 ISSUED BY THE STATE POLICE CHIEF.

EXHIBIT P25 TRUE COPY OF THE PETITIONER'S REPRESENTATION DATED 4-7-2013 TO THE STATE POLICE CHIEF.

EXHIBIT P26 TRUE COPY OF THE PETITIONERS REPRESENTATION DATED 29-7-2013 BEFORE THE 6TH RESPONDENT.

EXHIBIT P27 TRUE COPY OF THE LETTERNO.

J2/55197/2011 DATED 27-8-2013 ISSUD BY THE STATE POLICE CHIEF.

EXHIBIT P28 TRUE COPY OF THE REPORT DATED 18.2.2014 ALONGWITH COPY OF THANDAPER FROM THE VILLAGE OFFICER,PEERMADE EXHIBIT P29 TRUE COPY OF THE REPORT DATED 11.12.2013 PREPARED BY THE GEOLOGICAL DEPARTMENT, IDUKKI IN 2008 EXHIBIT P30 TRUE COPY OF THE REPORT DATED 20.2.2015 OF THE TAHSILDAR, TALUK OFFICE, PEERMADE EXHIBIT P31 TRUE COPY OF THE REPORT DATED 11.2.2019 OF THE DISTRICT COLLECTOR, IDUKKI WP(C) NO. 18123 OF 2014

RESPONDENTS EXHIBITS EXHIBIT R7(A) A TRUE PHOTOCOPY OF THE AGREEMENT DATED 15.03.2005 EXECUTED BETWEEN C.T.JACOB, THE HUSBAND OF THE PETITIONER AND THE COMMANDANT OF KAP BATTALION NO.IV EXHIBIT R7(B) A TRUE PHOTOCOPY OF THE REPORT PREAPRED BY THE DISTRICT GEOLOGIST, IDUKKI, DATED 25.06.2008.