Allowed

Abdul Gafoor v. the District Collector

Kerala HC4 Sept 2013WP(C)/10769/2013

Case brief

AI extract

What is this about?

This judgment addresses a writ petition where the respondent authority cancelled a permission granted for pond renovation without a prior effective hearing. The court set aside the cancellation order due to procedural lapses and directed a fresh hearing.

What did the court decide?

The impugned order dated 18.04.2013 is set aside. A fresh notice is to be issued for a hearing within two months. Status quo is maintained.

Abdul Gafoor Vs the District Collector — Constitutional and Fundamental Rights | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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WEDNESDAY, THE 4TH DAY OF SEPTEMBER 2013/13TH BHADRA, 1935

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WP(C).No. 10769 of 2013 (U)

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PETITIONER(S):

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ABDUL GAFOOR, S/O.AVARANKUTTY HAJI, PULIKKOTTU KALAM, KAVASSERY ALATHUR TALUK, PALAKKAD DISTRICT.

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BY ADVS.SRI.BINOY VASUDEVAN

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SRI.R.MANIKANTAN

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SMT.P.G.BABITHA SMT.INDHU BALAKRISHNAN

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RESPONDENT(S):

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1. THE DISTRICT COLLECTOR COLLECTORATE, CIVIL STATION, PALAKKAD - 678 101.

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2. THE REVENUE DIVISIONAL OFFICER, PALAKKAD - 678 101.

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3. THE VILLAGE OFFICER, KAVASSERY I VILLAGE, KAVASSERY P.O., PALAKKAD DISTRICT - 678 110.

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4. THE KAVASSERY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KAVASSERY P.O. PALAKKAD DISRICT - 378 110.

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R1 TO R3 BY SPL.GOVT.PLEADER SRI.SOYUZ P.K. R4 BY ADVS. SRI.P.V.SURENDRANATH SMT.BINDUMOL JOSEPH SRI.B.S.SYAMANTHAK

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-09-2013, ALONG WITH WP(C) NO.21554 OF 2013 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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tss

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WP(C).No. 10769 of 2013 (U)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1- TRUE COPY OF THE DOCUMENT NO. 4404/2011 OF S.R.O. ALATHUR DTD. 28.9.2011.

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EXHIBIT P2- TRUE COPY OF THE POSSESSION CERTIFICATE IN RESPECT OF THE PETITIONER'S PROPERTY STRS. 5.1.2013.

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EXHIBIT P3- TRUE COPY OF THE RECEIPT EVIDENCING THE PAYMENT OF LAND TAX DTD. 5.1.2013.

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EXHIBIT P4- TRUE COPY OF THE MASS REPRESENTATION DTD. 28.1.2013.

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EXHIBIT P5- TRUE COPY OF THE STOP MEMO ISSUED BY THE THIRD RESPONDENT DTD. 28.1.2013.

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EXHIBIT P6- TRUE COPY OF THE NOTICE ISSUED BY THE FIRST RESPONDENT UNDER SECTION 12(2)(B) OF THE KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT 2008.

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EXHIBIT P7- TRUE COPY OF THE APPLICATION PREFERRED BY THE OWNERS OF THE PEROPERTY BEFORE THE FIRST RESPONDENT DATED 01-02-2013.

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EXHIBIT P8- TRUE COPY OF THE PROCEEDINGS OF THE FIRST RESPONDENT DATED 22-03-3013.

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EXHIBIT P9- TRUE COPY OF THE PERMISSION GRANTED BY THE GEOLOGIST DTD. 01.04.2013.

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EXHIBIT P10- TRUE COPY OF THE PERMISSION GRANTED BY THE CHIEF EXECUTIVE ENGINEER, FISH FARMERS DEVELOPMENT AGENCY, MALAMPUZHA, PALAKKAD DTD. 13.3.2013.

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EXHIBIT P11- TRUE COPY OF THE ORDER ISSUED BY THE THIRD RESPONDENT DTD. 4.4.2013.

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RESPONDENT(S)' EXHIBITS

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R3(a):- COPY OF THE ORDER NO.LR. G5/2013/11400/2009 DTD. 18.4.2013.

TRUE COPY

P.A. TO JUDGE

tss

P.R. RAMACHANDRA MENON, J.

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:::::::::::::::::::::::::::::::::::::::::::::::: W.P.(C). Nos. 10769 & 21554 of 2013

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......................................................

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Dated this the 4^th day of September, 2013

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JUDGMENT

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The petitioner is same in both the cases. The petitioner is stated as a co-owner of the property, where a pond is situated and it is allegedly in a dilapidated condition. After purchasing the property, the petitioner proceeded with steps to renovate the pond. In the course of further steps, the same was intercepted by the 3^rd respondent/Village Officer which made the petitioner to approach the 1^st respondent for immediate interference.

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Ext.P5 is the stop memo issued by the 1^st respondent, while Ext.P6 is the notice issued by the 1^st respondent under Section 12(2)(b) of the Act 28 of 2008. The owners of the property preferred Ext.P7 application dated 1.02.2013 and sought for permission to renovate the pond by cleaning the same and also to cultivate fish. After considering the application, Ext.P8 NOC dated 22.03.2013 was issued by the 1^st respondent,

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subject to satisfaction of as many as 12 conditions, making it clear that, if at all any violation is there, it will automatically

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W.P.C. Nos. 10769 & 21554 of 2013 -2-

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stand cancelled. The petitioner contends that, he was pursuing the matter strictly in conformity with Ext.P8. But this was sought to be further intercepted by the Village Officer by issuing another order under Section 12 (2)(b) of the Act on 4.4.2013, produced as Ext.P11, which in turn is under challenge in W.P.(C). 10796/2013.

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A detailed statement has been filed by the 3^rd respondent referring to the facts and figures and as to the violation stated as committed with regard to the conditions imposed vide Ext.P8. It is also pointed out that, the matter was enquired into and on establishing the violation, the 'NOC' given by the 1^st respondent was cancelled as per order dated 18.04.2013 which is produced as Ext.R3(a). The petitioner sought to challenge the order dated 18.04.2013 passed by the 1^st respondent by filing W.P.(C).No.21554/2013, pointing out that, as per the said proceeding, the petitioner was required to appear before the 1^st respondent on 23.04.2013 with opportunity to file an objection. It is stated that the said proceeding was served to the petitioner only after the stipulated date and the factual position was brought to the notice of the 1^st respondent by

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W.P.C. Nos. 10769 & 21554 of 2013 -3-

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submitting Ext.P14 representation dated 27.4.2013. Existence of the interim order dated 13.06.2013 passed by this Court in W.P. (C).No. 10796/2013 was also brought to the notice of the 1^st respondent.

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Heard the learned counsel for the petitioner as well as learned Government Pleader appearing for respondents 1 to 3 and Sri. P.V. Surendranath, learned counsel for 4^th respondent.

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It is stated from the part of the respondents that, the petitioner, under the guise of Ext.P8 NOC, is virtually filling up a portion of the pond, which was never permitted as per the relevant proceedings and hence the interception, pursuant to the enquiry made in this regard. The learned counsel for the petitioner however seeks to rebut the said submission, stating that, no such activity has been pursued by the petitioner.

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After hearing both the sides, this Court finds that the factual position does not require to be probed into by this Court, more so, since the opportunity given to the petitioner to explain the position also by submitting necessary objection on 23.04.2013 was not an effective one, in so far as the said proceeding dated 18.04.2013 was served to the petitioner only

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W.P.C. Nos. 10769 & 21554 of 2013 -4-

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after the scheduled date of hearing i.e., 23.04.2013. There is no dispute with regard to this aspect from the part of the concerned respondents.

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In the said circumstance, this Court finds that the matter does require to be reconsidered by the 1^st respondent. Accordingly, Ext.P13 challenged in W.P.(C).No. 21554 of 2013 is set aside and the 1^st respondent is set at liberty to issue a fresh notice to the petitioner for hearing. The matter shall be pursued in accordance with law, after taking note of all the factual circumstances, giving an opportunity of hearing to the petitioner and also to the respondent Panchayat. The proceedings as above shall be finalized at the earliest, at any rate, within 'two months' from the date of receipt of a copy of this judgment. 'Status quo' as on date shall be maintained till such time.

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The writ petition is disposed of.

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P.R. RAMACHANDRA MENON, JUDGE.

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kp/-

Abdul Gafoor v. the District Collector

Case brief

What is this about?

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Abdul Gafoor v. the District Collector

Case brief

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