Dismissed

Babu v. the District Collector

Kerala HC10 Oct 2013WP(C)/23747/2013

Case brief

AI extract

What is this about?

Court set aside an order directed removal of trees by the Revenue Divisional Officer under Act 28 of 2008. Held that the power was exclusive to the District Collector. Directed transfer of file to collector for fresh proceedings after hearing petitioners.

What did the court decide?

Orders Ext.P5 and P7 set aside; file transferred to 1st respondent; writ petition disposed of.

Babu Vs the District Collector — Writ and Judicial Review | 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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THURSDAY, THE 10TH DAY OF OCTOBER 2013/18TH ASWINA, 1935

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WP(C).No. 23747 of 2013 (P)

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PETITIONER(S):

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1. C.BABU, THADATHIVILA PUTHEN VEEDU, VENGOOR P.O., ELAMADU VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.

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2. SUSAMMA BABU, THADATHIVILA PUTHEN VEEDU, VENGOOR P.O., ELAMADU VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.

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BY ADVS.SRI.P.K.VIJAYAMOHANAN SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S.

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RESPONDENT(S):

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1. THE DISTRICT COLLECTOR, KOLLAM, CIVIL STATION, KOLLAM, PIN-691 013.

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2. THE REVENUE DIVISIONAL OFFICER, KOLLAM, CIVIL STATION, KOLLAM - PIN-691 013.

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3. THE ADDITIONAL TAHSILDAR, TALUK OFFICE, KOTTARAKKARA, PIN-691 506.

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4. THE VILLAGE OFFICER, ELAMAD VILLAGE, KOLLAM DISTRICT, PIN-691 533.

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5. SANTHOSH KUMAR, 'CHAITHANYA', VALIYODE P.O. 691 520, VIA.CHAPRA, KOLLAM DISTRICT.

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R1 TO R4 BY SPECIAL GOVERNMENT PLEADER(REVENUE)SRI.P.K.SOYUZ

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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WP(C).No. 23747 of 2013 (P)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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P1: COPY OF THE TAX RECEIPTS DATED 12.09.2013 TOWARDS THE PAYMENT OF BASIC TAX WITH THE 4TH RESPONDENT.

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P2: COPY OF THE NOTICE ISSUED TO THE IST PETITIONER BY THE 4TH RESPONDENT VIDE NO.646/2011 DATED 28.11.2011.

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P3: COPY OF THE NOTICE ISSUED TO THE 2ND PETITIONER BY THE 4TH RESPONDENT VIDE NO.646/2011 DATED 28.11.2011.

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P4: COPY OF THE REPLY DATED NIL SUBMITTED BEFORE THE 4TH RESPONDENT BY THE 1ST PETITIONER FOR HIMSELF AND ON BEHALF OF THE 2ND PETITIONER.

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P5: COPY OF THE ORDER NO.A 1446/2012 DATED 07.03.2012 OF THE 2ND RESPONDENT.

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P6: COPY OF THE OBJECTION DATED 02.04.2012 FILED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT.

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P7: COPY OF THE COMMUNICATION NO.B 10-2121/12 DATED 07.09.2013 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS.

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RESPONDENT(S)' EXHIBITS:

N I L

/TRUE COPY/

P.A.TO JUDGE

Kss

P.R. RAMACHANDRA MENON, J.

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========================

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W.P.(C). No. 23747 of 2013

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-------------------------------------------Dated this the 10th day of October, 2013

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JUDGMENT

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The petitioners are challenging the correctness and sustainability of Ext.P5 order passed by the 2nd respondent and the further course and events leading to Ext.P7 dated 07.09.2013 issued by the 3rd respondent, proposing to proceed with prosecution proceedings for non-compliance of the direction given by the 2nd respondent vide Ext.P5.

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The case of the petitioners is that, the property owned, possessed and enjoyed by the petitioners, as covered by Ext.P1, is never a 'paddy land' or 'wet land' as per the definition under Sections 2(xii) and 2(xviii) of the Act 28 of 2008. According to the petitioner, the property is described as 'Nilam' in the Revenue records. But it is a 'garden land' which was reclaimed years back and is cultivated with rubber. The learned counsel submits that, on receipt of Exts. P2/P3 notices issued from the Village Office, detailed explanation was submitted vide Ext.P4. But it was without considering the same and without giving any opportunity

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W.P.C. No.23747 of 2013 -2-

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of hearing to the petitioners, that the 2nd respondent took up the matter and issued Ext.P5 order dated 07.03.2012, whereby the petitioners are required to remove the rubber trees and to restore the land as it existed earlier.

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The petitioners on receipt of Ext.P5 submitted Ext.P6 objection before the 2nd respondent referring to the facts and figures. The same however did not yield any positive result and the petitioners were served with Ext.P7 communication which made them to approach this Court by filing this writ petition.

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The learned Government Pleader submits on instructions that, the 1st respondent/District Collector has already ratified Ext.P5 proceedings of the 2nd respondent vide order bearing No. L10-70289/12 dated 04.01.2013, as referred to in Ext.P7, as item No.1, simultaneously pointing out that, the rubber trees planted by the petitioners were having only age of '1 year' as discernible from Ext.P5. The factual position in this regard has been conceded by the petitioner as well, as discernible from paragraph '1' of Ext.P6; wherein the petitioners have conceded that, the property was purchased only in the year 2009 and it

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W.P.C. No.23747 of 2013 -3-

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was thereafter, that rubber trees were planted therein, due to failure of other crops.

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However, the fact remains that, the restoration of the property has been ordered vide Ext.P5 under Section 13, referring to the infringement to the provisions of the Act 28 of 2008 by the 2nd respondent, which power stands exclusively vested upon the 1st respondent and not upon the 2nd respondent. There is no case that, the petitioners were heard by the 1st respondent before passing Ext.P5 by the 2nd respondent, as Ext.P5 itself discloses the fact that, it was after ordering the restoration under Section 13, that the petitioners were set at liberty to file objection, if any, within 'five' days, which can only amount to a 'post-decisional hearing'. Even otherwise, notice of hearing should have been given by the 1st respondent and appropriate orders ought to have been passed by the 1st respondent, who is the competent authority under the statute. Merely for the reason that Ext.P5 order passed by the 2nd respondent is stated as ratified by the 1st respondent subsequently, as per order dated 4.1.2013, it cannot rectify the

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W.P.C. No.23747 of 2013 -4-

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patent error in this regard, as jurisdiction (which is totally lacking) cannot be conferred as per any agreement.

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In the said circumstance, Exts. P5 and P7 are set aside

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and the 2nd respondent is directed to forward the file to the 1st respondent forthwith. On receipt of the proceedings as above, the 1st respondent shall issue notice of hearing to the petitioners

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and the proceedings shall be finalized on merits after giving an opportunity of hearing to the petitioners, in accordance with law. In view of the turn of events, it is declared that, the so-called ratification order passed by the 1st respondent as referred to in Ext.P7 will be of no consequence.

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The petitioners shall produce a copy of the judgment along with a copy of the writ petition before the competent authority for further steps. The writ petition is disposed of.

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P.R. RAMACHANDRA MENON, JUDGE.

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kp/-

Babu v. the District Collector

Case brief

What is this about?

What did the court decide?

Babu v. the District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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