Allowed

Chandrasekharan Pillai and Another v. Stte of Kerala and Others

Kerala HC25 Nov 2016WP(C)/34351/2010

Case brief

AI extract

What is this about?

Hearing a writ petition challenging orders by Tahsildar directing demolition of structures, the Court held the Tahsildar lacked jurisdiction under the Kerala Land Utilisation Order, 1967. Consequently, the orders were quashed and the petition allowed.

What did the court decide?

Orders passed by Tahsildar and upheld by the Land Revenue Commissioner and Government (Exts. P4, P6, P8) were quashed as null and void due to lack of jurisdiction.

Chandrasekharan Pillai and Another Vs Stte of… — Municipal and Town Planning | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938

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WP(C).No. 34351 of 2010 (T)

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PETITIONER(S) :

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1. CHANDRASEKHARAN PILLAI, S/O.GOPALA PILLAI, AGED 55 YEARS, VISHNU VILASAM, ELAMPALLOOR VILLAGE,

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PERUMPUZHA P.O.

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2. PRIYA CHANDRAN, D/O.CHANDRASEKHARAN PILLAI, VISHNU VILASAM, ELAMPALLOOR VILLAGE,

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PERUMPUZHA P.O.,

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BY ADVS.SRI.LEO GEORGE SRI.K.P.SUJESH KUMAR SRI.K.N.SASIDHARAN NAIR

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001

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2. THE SECRETARY TO GOVERNMENT , AGRICULTURE (NCA) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001

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3. THE LAND REVEUE COMMISSIONER, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 039

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4. THE DISTRICT COLLECTOR, KOLLAM-673 307

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5. THE TAHSILDAR (EXECUTIVE MAGISTRATE), KOLLAM-633 307

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6. THE VILLAGE OFFICER, ELAMPALLOOR, KOLLAM-633 307

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2/-

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-2-

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WP(C).NO.34351/2010

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7. RADHAKRISHNAN NAIR, MUZHANGODIYIL VEEDU, CHEMMAKKADU P.O.,PERINADU, KOLLAM-633 307

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8. M.V.GEORGE, MELEVILA PUTHEN VEEDU, PERUMPUZHA P.O.-691 504

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9. C.CHERIYAN, MELEVILA PUTHEN VEEDU, PERUMPUZHA P.O.-691 504

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10. THE PRESIDENT, PERUMPUZHA, ELA VIKASANA KARSHAKA SAMITHI, PERUMPUZHA, KOLLAM-633 307

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R1 TO R6 BY SR GOVERNMENT PLEADER SRI.SANTHOSH PETER R7 BY ADVS. SMT.S.LEELA SRI.B.VINOD R10 BY ADVS. SRI.K.S.MANU (PUNUKKONNOOR) SRI.P.SREEKUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).NO.34351/2010

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE TAX RECEIPT IN RESPECT OF THE PROPERTY OF THE FIRST PETITIONER DATED 12/7/2010

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P2 COPY OF THE TAX RECEIPT IN RESPECT OF THE PROPERTY OF THE SECOND PETITIONER DATED 12/7/2010

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P3 COPY OF THE SKETCH SHOWING THE LIE OF THE PROPERTIES OF THE PETITIONERS, PROPERTIES ADJACENT ROADS, CANAL ETC.

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P4 COPY OF THE ORDER PASSED BY THE FIFTH RESPONDENT DATED 23/2/2008

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P5 COPY OF THE APPEAL FILED BY THE PETITIONERS BEFORE THE THIRD RESPONDENT DATED NIL

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P6 COPY OF THE COMMUNICATION ISSUED BY THE THIRD RESPONDENT TO THE FIRST PETITIONER DATED 8/8/2008

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P7 COPY OF THE REVISION PETITION PREFERRED BY THE PETITIONERS DATED 3/9/2008

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P8 COPY OF THE JUDGMENT IN WP(C).NO.18111/2008 DATED 25/5/2010

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P9 COPY OF THE G.O.(RT) NO.1614/2010, DATED 9/9/2010

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RESPONDENT'S EXHIBITS:

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R7(A) COPY OF THE SALE DEED NO.589/2006 OF THE KUNDARA SUB REGISTRY DATED 25/01/2011

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R7(B) COPY OF THE SALE DEED NO.2747/2006 OF THE KUNDARA SUB REGISTRY DATED 25/01/2011

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R7(C) COPY OF THE REPLY UNDER RTI DATED 10/2/2011 OF THE SECRETARY ELAMPALLOOR GRAMA PANCHAYATH

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R7(D) COPY OF THE SURVEY PLAN OF FILED NO.330 IN KOTTAMKARA VILLAGE

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R7(E) COPY OF THE INTERIM ORDER DATED 17/6/2008 IN WP(C).NO.18111/2008

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R7(F) COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED NIL'

/TRUE COPY/

P.A.TO JUDGE

sts

P.V.ASHA, J.

W.P.(C).No.34351 of 2010

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------------------------------------------------- Dated this the 25^th day of November, 2016

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J U D G M E N T

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Petitioners challenge the orders Exts.P4, P6 and P8. By Ext.P4 order dated 23.2.2008, issued under the Kerala Land Utilisation order, 1967, the Tahsildar, Kollam directed the petitioner to stop the construction being carried out in his property. The order of Tahsildar is upheld in Exts.P6 and P8.

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Petitioners submit that their property which was originally a wet land was converted as garden land 50 years back. Tt was a garden land when they purchased it in the year 2006. According to them, they were constructing only retaining walls on the western boundaries of their property having an extent of 8.40 ares and 6.60 ares in Sy.Nos.313/16 & 15 in Elampanallur Village in Kollam District. Apparently, on the basis of some complaints before the District Collector, Kollam, the Tahsildar caused an inquiry to be conducted through the village officer and issued Ext.P4 memo directing to demolish the constructions carried out in that land and to restore the property to its previous position.

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The petitioners thereupon filed Ext.P5 appeal before the Land Revenue Commissioner, pointing out that the order Ext.P4 was issued without any notice to them and pointing out that Tahsildar did not have any authority to pass an order under the Kerala Land

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W.P.(C).No.34351 of 2010

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Utilisation order, 1967. It was also pointed out that they are not carrying out any illegal constructions in the properties. But the Land Revenue Commissioner rejected the petition as per Ext.P6, stating that the appeal is maintainable only against the orders issued by the District Collector, in accordance with clause 11 of the Kerala Land Utilisation order, 1967. Aggrieved by this, the petitioners filed Ext.P7 revision petition before Govt. In the meanwhile, the respondents 7 to 9 approached this Court in W.P.(C).No.18111 of 2008 seeking implementation of Ext.P4. By Ext.P8 judgment dated 25.5.2010, this Court directed the Government to pass orders on the revision petition submitted by the petitioners after hearing the respondents 7 to 10 also. Ext.P9 order was thereafter passed by Government, rejecting the revision petition upholding the order passed by Tahsildar.

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The 7^th respondent has filed a counter affidavit, stating that the constructions carried out by the petitioners was causing hindrance to their agricultural activities.

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I heard the learned counsel for the petitioners, who referring to the provisions contained in the Kerala Land Utilisation order, 1967 argued that the Tahsildar is not an authority to issue orders under the Kerala Land Utilisation order and that it is only the District Collector who is competent to pass orders under Clause 7.

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Even though the very contention raised by the

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W.P.(C).No.34351 of 2010

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petitioners is regarding the jurisdiction of the Tahsildar to issue orders under the Kerala Land Utilisation order, 1967, there is no answer to their contention. Official respondents have not filed any counter affidavit, despite the direction issued by this Court. On a perusal of the Kerala Land Utilisation order, 1967, it is seen that the District Collector is to pass orders under this provision. No authority is seen vested in the Tahsildar under any of the provisions in the order. At any rate no such orders or notifications if any, by which the Tahsildar is empowered to pass orders is furnished before this Court. This contention, though raised before the Land Revenue Commissioner as well as the Government, they did not choose to consider the same while upholding the order passed by the Tahsildar.

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Under the above circumstances, the orders Exts.P4, P6 and P8 are null and void, since the basic order Ext.P4 itself is passed without jurisdiction. Accordingly, Ext.P4, P6 and P8 are quashed.

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The writ petition is allowed.

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Sd/-

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P.V.ASHA, JUDGE.

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Chandrasekharan Pillai and Another v. Stte of Kerala and Others

Case brief

What is this about?

What did the court decide?

Chandrasekharan Pillai and Another v. Stte of Kerala and Others

Case brief

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