Allowed

Thampan Thomas v. District Collector

Kerala HC27 Jun 2014WP(C)/4049/2014

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging orders directing land surrender under the Kerala RSTR Act. It held that previous notices were insufficiently served and no notice was served for the subsequent order, violating the right to a fair opportunity. The impugned orders were set aside, mandating a fresh hearing.

What did the court decide?

Impugned notices (Ext.P7) and order (Ext.P8) set aside; matter remanded to Third Respondent for reconsideration after opportunity to petitioner; proceedings to be completed within six months.

Thampan Thomas Vs District Collector — Land Acquisition | Kerala HC (2014)

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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 A.M.SHAFFIQUE

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FRIDAY, THE 27TH DAY OF JUNE 2014/6TH ASHADHA, 1936`

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WP(C).No. 4049 of 2014 (E)

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PETITIONER(S):

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THAMPAN THOMAS, AGED 71 YEARS, S/O LATE THOMAS, ADVOCATE, RESIDING AT ANAMALA MARKET ROAD, ERNAKULAM DT. 682011

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BY ADVS.SRI.B.V.JOY SANKER SRI.JACOB CHACKO

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RESPONDENT(S):

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1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY GOVT. SECRETARIAT, THIRUVANANTHAPURAM 695001

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2. THE DISTRICT COLLECTOR, PALAKKAD 678001

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3. THE REVENUE DIVISIONAL OFFICER, OTTAPALAM, PALAKKAD 679101

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4. VILLAGE OFFICER, AGALI VILLAGE, PALAKKAD 678581

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5. KAKKI,

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S/O NANJAN, NAKKUPATHY, AGALI PALAKKAD 678581

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R1 -R 4 BY ADV. GOVERNMENT PLEADER, MS.ANITHA RAVINDRAN (SR.)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 4049 of 2014 (E)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE SALE DEED NO 643 OF 1983 OF MANNARKKAD SUB REGISTER OFFICE.

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EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE 4TH RESPONDENT FOR THE YEAR 2013-14 VIDE BOOK NO 81113 RECEIPT NO H 8111241 DATED 20-05-2013.

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EXHIBIT P3 TRUE COPY OF THE SALE DEED NO 853 OF 1958 OFI MANNARKKAD SRO.

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EXHIBIT P4 TRUE COPY OF THE ORDER NO S.M 249/76 DATED 22-07-1976 OF THE TALUK LAND BOARD.

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EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS OF THE LAND BOARD DATED 1805-1977.

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EXHIBIT P6 TRUE COPY OF THE PATTA NO 595/1976 DATED 03-02-1976

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EXHIBIT P7 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DATED 06-01-2014 SERVED THROUGH THE 4TH RESPONDENT ON 3001-2014.

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EXHIBIT P8 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT UNDER SECTION 5 OF THEACT DATED 28-04-2011.

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EXHIBIT P9 TRUE COPY OF THE LETTER TO THE 4TH RESPONDENT ON 01.02.2014

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EXHIBIT P10 TRUE COPY OF THE ORDER RECEIVED UNDR RTI ACT IN TLA NO.1545/87 DATED 13.10.1995.

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EXHIBIT P11 TRUE COPY OF THE VILLAGE OFFICER'S REPORT IN TLA NO.1547/87 ALSO UNDER THE RTI ACT.

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RESPONDENT(S)' EXHIBITS

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--------------------------------------NIL

// True copy //

PA to Judge

das

A.M.SHAFFIQUE, J.

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= = = = = = = = = = = = = WP(C).No.4049 of 2014-E. = = = = = = = = = = = = =

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Dated this the 27^th June, 2014.

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J U D G M E N T

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The petitioner challenges Exts.P7 and P8. Ext.P7 is the notice issued by the Revenue Divisional Officer, Ottapalam calling upon the petitioner to surrender certain item of land directed to be surrendered in terms of an order dated 28.4.2011. Ext.P8 is the said order. Ext.P8 came to be issued in accordance with the provisions of Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999. A perusal of Ext.P8 order indicates that the petitioner was in possession of land belonging to a scheduled tribe. Orders were passed on 13.10.1995 in TLA.1545/87 calling upon the petitioner to surrender the land in possession of the petitioner having an extent of 7 acres in Agali village. After the Act, 1999 coming into force the petitioner was entitled to the benefit of holding upto 2 hectares. Therefore after issuing notice to

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WP(C).No.4049/2014-E.

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the petitioner orders were passed calling upon him to surrender the balance extent of land after demarcation.

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The main contention urged by the petitioner is

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that he was not served any notice whereas only Ext.P7 was served on him. That apart the property involved is not belonging to a tribe, whereas the same was patta land which he had obtained by way of assignment.

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Counter-affidavit is filed by the third respondent supporting the stand taken by them and inter-alia contending that there was no dispute regarding the nature of land as evident from the order dated 13.10.1995, and thereafter the petitioner cannot take a contention that the property is not a tribal land. Though notices were issued subsequently since the petitioner was not residing in the property, the same could not be served on him. It is, therefore, contended that when reports clearly indicates that the property involved is a tribal land, the Revenue Divisional Officer is entitled to pass an order under the

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WP(C).No.4049/2014-E.

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Statute.

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Having regard to the above factual situation the question to be considered is whether the petitioner is served with any notice before passing the impugned order Ext.P8. The learned Govt.Pleader placed on record the files

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in this connection and it is seen that a notice dated 9.10.1995 fixing the hearing on 12.9.1995 is seen served by registered post with acknowledgment due. The acknowledgment indicates that the notice had been received. According to the learned counsel for the petitioner, the signature is not that of the addressee. At any rate the order is seen passed on 13.10.1995. It is clear from the aforesaid particulars made available that there was no sufficient service of notice on the petitioner. Even the endorsement in the acknowledgment card indicates that it was served only on 11.10.1995. Under such circumstance even assuming that notice was served is not sufficient notice to enable the petitioner to defend the case on

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WP(C).No.4049/2014-E.

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13.10.1995. That apart, it is clear that when the 1999 Act came into force, fresh proceedings were taken and the respondent authorities issued notice to the petitioner. There is no material to indicate that such notice has been served on the petitioner. Under such circumstances, when the petitioner has a valid case that the property involved is not a tribal land it is a matter to be enquired into after giving a proper opportunity to the petitioner to adduce evidence to prove their contentions. Hence I am of the view that this writ petition is liable to be allowed and accordingly the same is allowed with the following directions:

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(i) Exts.P7 and P8 are hereby set aside.

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(ii) The third respondent shall reconsider the entire issue after giving opportunity to the petitioner to file necessary representation and documents to prove his claim

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(iii) The petitioner shall appear by himself or through authorised representative before the third respondent on 14.7.2014 at 11.00 am. and thereafter continue to appear or

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WP(C).No.4049/2014-E.

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make arrangements for appearance on the respective posting dates.

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(iv) The third respondent shall complete the

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proceedings within a period of six months thereafter.

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Sd/A.M.SHAFFIQUE, (Judge)

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Kvs/-

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// true copy //

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PA TO JUDGE.

Thampan Thomas v. District Collector

Case brief

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Thampan Thomas v. District Collector

Case brief

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