Hajee Essa Salay Mohamed Trust vs The State Of Kerala
2024 Latest Caselaw 5061 Ker

Kerala High Court

Hajee Essa Salay Mohamed Trust vs The State Of Kerala on 15 February, 2024

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
       THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA,
                            1945
                  WP(C) NO. 32221 OF 2014
PETITIONER:

          HAJEE ESSA SALAY MOHAMED TRUST, AGED 54 YEARS
          MIG NO.6, FORT NAGAR, KOCHI-682 001, REP.BY
          ITS TRUSTEE MOHAMMED IRFAN A.K.
          BY ADVS.
          SRI.R.LAKSHMI NARAYAN
          SMT.R.RANJANIE
RESPONDENTS:

   1      THE STATE OF KERALA, REP.BY ITS CHIEF
          SECRETARY, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM-695 001.
   2      THE LAND REVENUE COMMISSIONER
          REVENUE COMPLEX, PUBLIC OFFICE COMPOUND,
          MUSEUM JUNCTION, THIRUVANANTHAPURAM-695 033.
   3      THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL
          STATION, KAKKANAD, KOCHI-682 030.
   4      THE REVENUE DIVISIONAL OFFICER
          FORT KOCHI-682 001.
   5      THE TAHSILDAR, TALUK OFFICE, KOCHI-682 001.


OTHER PRESENT:

          SRI BS SYAMANTAK, GP
THIS    WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 W.P(C).32221/2014
                                             2



                  P. V. KUNHIKRISHNAN, J.
               -------------------------------------------
                    W.P(C).No.32221 of 2014
               -------------------------------------------
           Dated this the 15th day of February, 2024

                               JUDGMENT

The above Writ Petition is filed with the following prayers:

i) Call for the records leading to Exts.P8, P-9, P-14 and P-15 and quash the same by issuance of writ of certiorari or other appropriate writ.

ii) Declare that the proceedings leading to Exts.P-8, P-9, P- 14 and P-15 are illegal and unsustainable in law, in facts and circumstances of the case.

iii) pass such other writs, orders or directions as this Hon'ble Court may deems just, fit and necessary in the facts and circumstances of this case. And

iv) allow this writ petition with cost.

[SIC]

2. The petitioner is a charitable trust. According to the

petitioner, it is a bonafide purchaser of land having an extent of 25

cents and situated in Sy.No.1251, 1252, 1196, 39 & 38 of the W.P(C).32221/2014

Mattancherry Village. The petitioner purchased the property as per

Ext.P1 sale deed and Exts.P2 to P5 release deeds. It is submitted

that the petitioner Trust being a bonafide purchaser of the property

is in absolute possession and enjoyment of the property since the

execution of the above mentioned sale and release deeds. It is also

the case of the petitioner that mutation was effected in the name of

the petitioner Trust in the Thandaper register and the tax is

regularly paid by the petitioner trust. Thus from 1981 onwards,

there is no dispute regarding the title of the Trust over the property

is the submission. The petitioner submits that the building in the

property is very old and occupied by tenants. While so, the

petitioner received notice demanding an amount of Rs.2,97,978/-

towards the arrears of 'pattom'. As per Ext.P8, it was informed by

the 5th respondent that the property having an extent of 3.250 cents

in Sy.No.1252 of Mattancherry Village was leased out to one Aasi

Bai for commercial purpose and the petitioner has obtained

possession of the property. It is also stated therein that the

petitioner was in unauthorized possession of the property. Hence

the 4th respondent has passed an order dated 23.01.2008 cancelling W.P(C).32221/2014

the patta and to resume the land and to appropriate the arrears of

lease. Thereby, as per Ext.P8 order, an amount of Rs.2,97,978/-

has been claimed as arrears of lease for the period from 13.11.1995

to 31.03.2007. Ext.P8 was accompanied by Ext.P9 order of the 4 th

respondent dated 23.04.2008. As per Ext.P9, since the petitioner

has not applied for extension of lease, the 4 th respondent

recommended for appropriation of lease from the petitioner. The

petitioner submitted that, Exts.P8 and P9 were issued in violation

of the principles of natural justice. The petitioner challenged

Exts.P8 and P9 before this Court by filing W.P(C).No.16982/2008.

This Court as per Ext.P10 judgment set aside Exts.P8 and P9.

Subsequently, as per Ext.P13 proceedings, the 5 th respondent

recommended further proceedings in the matter under the Land

Assignment Rules. By Ext.P14 dated 21.08.2010, the 3 rd respondent

reaffirmed Ext.P9 order and directed the 5 th respondent to resume

the land and also to take steps to recover the arrears fixed is the

submission. Aggrieved by Ext.P14, the petitioner preferred appeal

before the 2nd respondent. The 1st respondent, without considering

the factual as well as legal issues involved in the matter, passed W.P(C).32221/2014

Ext.P15 order rejecting the case put forward by the petitioner is the

submission. Hence this Writ Petition is filed.

3. Heard the counsel appearing for the petitioner and the

Government Pleader.

4. After arguing the matter in length, the counsel also

raised a point that, Ext.P14 is an order passed without giving an

opportunity of hearing to the petitioner. The counsel submitted that,

even though the same is raised before the 2 nd respondent, the 2nd

respondent has not considered the same and rejected the appeal as

per Ext.P15. Therefore, the counsel for the petitioner finally limits

his prayer for a reconsideration of the matter by the 3 rd respondent,

after setting aside Exts.P14 and P15. Even though the Government

Pleader objected the same, since this is a matter in which the

question of title of the petitioner is doubted, I am of the considered

opinion that the 3rd respondent should give an opportunity of

hearing to the petitioner. The petitioner should be allowed to give

sufficient opportunity to produce additional documents also if he

needed. Therefore, without expressing any opinion on merit

Exts.P14 and P15 can be set aside and there can be a direction to the W.P(C).32221/2014

3rd respondent to reconsider the matter, after giving an opportunity

of hearing to the petitioner.

Therefore, this Writ Petition is disposed of with the following

directions:

           a)       Exts.P14 and P15 are set aside.
           b)       The 3rd respondent is directed to reconsider the

matter, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate within four months from the date of receipt of a copy of this judgment.

c) The petitioner shall be given sufficient opportunity to produce the additional documents, if any.

d) I make it clear that I have not considered the matter on merit and the 3rd respondent is free to pass appropriate orders.

e) The petitioner will produce a certified copy of the judgment along with a copy of this Writ Petition with exhibits before the 3rd respondent for compliance.

Sd/-

P. V. KUNHIKRISHNAN JUDGE Sbna/ W.P(C).32221/2014

APPENDIX OF WP(C) 32221/2014

PETITIONER EXHIBITS P1 : COPY OF THE SALE DEED DTD.12.6.1981.

P2 : COPY OF THE RELEASE DEED DTD.22.12.1982. P3 : COPY OF THE RELEASE DEED DTD.25.3.1983. P4 : COPY OF THE RELEASE DEED DTD.26.3.1983. P5 : COPY OF THE RELEASE DEED DTD.28.3.1983. P6 : COPY OF THE TAX RECEIPT ISSUED IN FAVOUR OF THE TRUST.

P7 : COPY OF THE ENCUMBRANCE CERTIFICATE DTD.11.7.2003. P8 : COPY OF THE NOTICE DTD.13.5.2008.

P9 : COPY OF THE ORDER OF THE 4TH RESPONDENT DTD.23.4.2008.

P10 : COPY OF THE JUDGMENT IN WPC NO.16982/2008. P11 : COPY OF THE NOTICE DTD.8.2.2010.

P12 : COPY OF THE EXPLANATION DTD.25.2.2010. P13 : COPY OF THE PROCEEDINGS DTD.9.4.2010. P14 : COPY OF THE PROCEEDINGS DTD.21.8.2010. P15 : COPY OF THE PROCEEDINGS DTD.28.8.2014.