Allowed

Kolothumthodi Safiya v. the Secretary

Kerala HC8 Dec 2016WP(C)/8648/2016

Case brief

AI extract

What is this about?

The Kerala High Court quashed the Land Tribunal's order cancelling a certificate of purchase granted to the petitioner. The court held that the Tribunal lacked jurisdiction to review its own order suo motu and that a directive from the Land Board preventing consideration of Section 7E claims was illegal and arbitrary.

What did the court decide?

The writ petition was allowed; the impugned order cancelling the certificate of purchase was quashed, and the Land Tribunal was directed to issue the Patta within one month.

Kolothumthodi Safiya Vs the Secretary — Land Acquisition | 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 MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938

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WP(C).No. 8648 of 2016 (E)

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PETITIONER(S) :

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KOLOTHUMTHODI SAFIYA, AGED 65 YEARS, D/O.KUNHIMOIDEEN MASTER, KUNIYIL KEEZHUPARAMBA, ERNAD TALUK.

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BY ADV. SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL)

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RESPONDENT(S) :

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1. THE SECRETARY, LAND BOARD, THIRUVANANTHAPURAM-695 001.

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2. THE DISTRICT COLLECTOR, MALAPPURAM, PIN-676 121.

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3. THE LAND TRIBUNAL, MANJERI, MALAPPURAM DISTRICT, PIN-676 121.

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BY GOVERNMENT PLEADER SRI. RON BASTIN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 8648 of 2016 (E)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXT.P1	TRUE COPY OF THE ASSIGNMENT DEED AS NO.3560/1986 DATED 25/10/1986 OF THE SRO, AREACODE.
EXT.P2	TRUE COPY OF THE CERTIFICATE OF PURCHASE NO. 318/1985 DATED 20/9/1985.
EXT.P3	TRUE COPY OF THE ORDER OF THE TALUK LAND BOARD, ERNAD DATED 21/1/2014.
EXT.P4	TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER AS NO.7E-01/2015 BEFORE THE LAND TRIBUNAL, MANJERI DATED 18/5/2015.
EXT.P5	TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT ON 3/6/2015.
EXT.P6	TRUE COPY OF THE ORDER DATED 30/7/2015 IN 01/2015/7E OF THE LAND TRIBUNAL, MANJERI.
EXT.P7	TRUE COPY OF THE LEGAL OPINION REFERRED TO IN EXT.P6 DATED 11.06.2015.
EXT.P8	TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE TRIBUNAL ON 2/12/2015.
EXT.P9	TRUE COPY OF THE COMMUNICATION DATED 27/2/2016.
EXT.P10	TRUE COPY OF THE COMMUNICATION OF THE LAND BOARD SECRETARY REFERRED TO EXT.P9, DATED 30.09.2015.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

SHAJI P. CHALY, J.

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W.P.(C) No.8648 of 2016

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Dated this the 8^th day of December, 2016

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JUDGMENT

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This writ petition is filed by the petitioner seeking to quash Exts.P9 and P10, whereby certificate of purchase granted by the Government was reviewed and the application was dismissed, and the letter issued by the 1^st respondent to the 2^nd respondent dated 30.09.2015, whereby a communication was issued directing the District Collector to ascertain whether any appeals are preferred against issuance of patta in respect of the properties situated in survey No.178/1, 2 against 2.90 acres of property of Keezhuparamb

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Village, since they will not come under Sec.7E of the Kerala Land Reforms Act, 1963 [hereinafter called, the KLR Act], and for other related reliefs. Material facts for the disposal of the writ petition are as follows:

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Petitioner purchased 68 cents of property comprised in Survey No.134/1 of Block No.21 of Keezhuparambu Village in Malappuram District, as per registered sale deed No.3560/1986 of S.R.O., Areekode (old Survey No.178/2),

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evident from Ext.P1. The property was purchased by the petitioner from a person viz., Mammadeesa, who is issued with a patta in a suo motu proceedings No.192/1985 dated 20.09.1985 of the Land Tribunal, Kondotty. As per the said proceedings, an extent of 2.90 Acres of land was given certificate of purchase. After the purchase of the property, petitioner has been paying land tax of the properties. The certificate of purchase bearing No.318/1985 dated 20.09.1985 is produced as Ext.P2.

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It is stated, the State Legislature amended the Kerala Land Reforms Act, incorporating Sec.7(E) to the Act, during 2006. When the Revenue authorities declined to receive land tax, petitioner approached the Taluk Land Board, Ernad, and filed application under Sec.85(8) of the Act, 1963, for exempting the land owned by the petitioner covered by Ext.P1 title deed. However, the Taluk Land Board found that after the enactment of Sec.7E of the Act, she has to approach the Land Tribunal, the 3^rd respondent under Sec.7E of the Act, evident from Ext.P3. Accordingly, petitioner approached the 3^rd respondent by filing an application under Rule 122A(1) of the Kerala Land Reforms (Tenancy) Rules, 1970, for issuance

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of certificate of title in terms of Sec.7E of the KLR Act, evident from Ext.P4. Upon receipt of Ext.P4, notice was issued directing the petitioner to appear before the Land Tribunal, evident from Ext.P5. According to the petitioner, similar notices were issued to the vendor of the land and the 'Jenmi'. After detailed hearing and verification of records and other procedural formalities, Ext.P6 order is passed by the Tribunal on 30.07.2015. Though the Land Tribunal issued Ext.P6 order under Sec.106(B) of the KLR Act, the certificate was not issued in Form No.26B r/w Rule 122A(3). Thereupon, petitioner filed a petition before the Tribunal on 02.12.2015, requesting to issue certificate of purchase pursuant to Ext.P6, evident from Ext.P8.

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It is submitted that the 3^rd respondent issued a communication stating that, 1^st respondent instructed those persons who purchased lands covered by Ext.P2 certificate of purchase, will not come under the purview of Sec.7E of the KLR Act and therefore, they are not in a position to allow certificate of title, evident from Ext.P9. The communication issued by the Land Board Secretary referred to in Ext.P9 is produced as Ext.P10. According to the petitioner, Exts.P9 and

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W.P.(C) No.8648 of 2016

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P10 communications are wholly without jurisdiction and the same are arbitrary and illegal. These are the circumstances placed in this writ petition seeking the reliefs sought for.

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Third respondent has filed a counter affidavit contending that the land as claimed by the petitioner have already been taken possession as surplus in accordance with CR.1423/73/M4 of the Taluk Land Board, Ernad, and later reclaimed to the declarent Sri. Naduvathedath Illath Vasudevan Namboothiri. A total area of 7.7950 acres of land including 0.68 acre of petitioner's land comprised in old survey No.178/2, 1 of Kizhuparamb Village has been declared as excess land and then reclaimed to the said declarant. Out of the total land in question, 2.90 acres of land comprised in old survey No.178/2 possessed by the predecessor in interest of title of the petitioner has obtained a patta as per suo motu proceedings No.192/1985 dated 20.09.1985 of the Land Tribunal, Kondotty. Petitioner has later purchased the said land. The Land Tribunal, Kondotty had not known about the excess land comprised in the afore-specified survey. It was in that background, the purchase certificate was issued in this case by the concerned Land Tribunal.

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W.P.(C) No.8648 of 2016 5

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It is also stated, when the problem arose with respect to the non-receipt of the land tax, petitioner approached this Court by filing W.P.(C) No.8643 of 2013 and thereupon, the Taluk Land Board, Ernad was directed to consider the petition under Sec.85(8) of the KLR Act. It was thereupon that the Taluk Land Board heard the petitioner and passed Ext.P3 order, directing the 3^rd respondent to consider the case of the petitioner. It was thereupon that Ext.P6 order is passed by the 3^rd respondent. It is also stated that, after proper proceedings have been completed, 3^rd respondent allowed the application on 30.07.2015, however, before issuing the certificate of title, a direction has been received from the Secretary, Land Board, Thiruvananthapuram, evident from Ext.P10, stipulating that the landholders in old survey No.178/1, 2 in Kizhumparamb Village are not entitled to get Sec.7E consideration as per the KLR Act. It was thereupon that the proceeding issued by the Land Tribunal, Manjeri dated 30.07.2015 was cancelled on 27.02.2016, evident from Ext.P9. That apart, it is contended, it was based upon the directions contained under Ext.P10 issued by the 1^st respondent that Ext.P9 order is passed, quashing the order passed by the 3^rd

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W.P.(C) No.8648 of 2016

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respondent in favour of the petitioner. These are the materials available in this writ petition for consideration of the reliefs sought for by the petitioner.

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Heard learned counsel for the petitioner and the learned Government Pleader, and perused the documents on record and the pleadings put forth by the respective parties.

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The question to be considered centres round Exts.P9

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and P10 orders passed by the 3^rd respondent and the 1^st respondent respectively. The issuance of Ext.P6 order dated 30.07.2015 by the 3^rd respondent in favour of the petitioner is admitted, wherein it was held that petitioner is entitled to get a certificate of purchase as per Sec.7E of KLR Act, 1963. It is also an admitted fact that Ext.P6 order was issued after conducting a detailed enquiry by the 3^rd respondent. Even according to the respondents, there is no legal infirmity in passing Ext.P6 order since the same was passed after detailed enquiry as contemplated under the KLR Act, 1963, and the Rules appended thereto. Therefore, in accordance with Ext.P6, petitioner was entitled to get certificate of purchase. However, before issuance of certificate to the petitioner on the basis of the application submitted, Ext.P10 order is issued by the 1^st

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W.P.(C) No.8648 of 2016 7

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respondent directing the District Collectors to ascertain whether any appeals are preferred against issuance of patta in respect of the properties situated in survey No.178/2, 1 against 2.90 acres of property of Keezhuparamb Village. It was also informed that if any person has purchased property from the aforesaid extent, they are not entitled to get any relief under Sec.7E of the KLR Act. It was based on this order, the Land Tribunal, without issuing any notice to the petitioner, or any other interested or affected persons, passed Ext.P9 order, cancelling Ext.P6 order and dismissing the application submitted by the petitioner, seeking issuance of purchase certificate.

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In my considered opinion, there is no provision under the KLR Act, 1963 or under any of the attendant Rules providing powers to the 3^rd respondent to suo motu review an order passed by it. True, in a case where any fraud is committed or any other manipulation is done, irrespective of the powers conferred for a review, the authority concerned which passed the order may be able to review the order. The discussion made above and the counter affidavit filed by the 3^rd respondent shows that Ext.P6 order was passed after

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W.P.(C) No.8648 of 2016 8

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conducting a detailed enquiry by the 3^rd respondent. Therefore, it can never be said that Ext.P6 order is secured by the petitioner in a clandestine or illegal manner. If any person is aggrieved by Ext.P6 order, the aggrieved person ought to have preferred any appeal against the same. No appeal is preferred against Ext.P6 order. There is no power vested with the 3^rd respondent to review the order passed by it under ordinary circumstances. No notices are issued to the petitioner or any other person before passing Ext.P9 order. Therefore, in my considered opinion, Ext.P9 order passed by the 3^rd respondent suo motu reviewing Ext.P6 order and dismissing the application submitted by the petitioner seeking purchase certificate cannot be sustained under law. The same is an action not only without any jurisdiction or power but also in absolute violation of the principles of natural justice.

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In this regard, learned counsel for the petitioner has invited my attention to the judgment of this Court in ' Pasupathi Nampoothiri v. State of Kerala ' [2008 (4) KLT 163], to canvass the proposition that State Land Board cannot direct Taluk Land Boards to ignore the provisions of Sec.7E and not to consider applications filed under Sec.7E. The said

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W.P.(C) No.8648 of 2016

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proposition of law laid down by this Court aptly applies to the facts and circumstances of this case. Moreover, in my considered opinion, Ext.P10 order issued by the 1^st respondent did not direct the 3^rd respondent or any other officer to review any orders passed by it. By Ext.P10, the 1^st respondent was only making an effort to understand whether any appeals are preferred against the orders passed by the Land Tribunal in respect of the property in question. That order by itself will not enable or empower the 3^rd respondent to suo motu review its order.

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Learned counsel has also invited my attention to the judgment of the Apex Court in ' Joint Acton Committee of Air Line Pilots' Association of India (ALPAI) and others v. Director General of Civil Aviation and others ' [(2011) 5 SCC 435] to put forth a contention that any decision taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. Learned counsel also invited my attention to paragraphs 26, 27 and 28, wherein the said question was considered as follows:

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W.P.(C) No.8648 of 2016

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“ 26. The contention was raised before the High Court that the Circular dated 29-5-2008 has been issued by the authority having no competence, thus cannot be enforced. It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the statutory authority. In a democratic set-up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision-making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. (Vide Purtabpore Co. Ltd. v. Cane Commr. of Bihar, Chandrika Jha v. State of Bihar, Tarlochan Dev Sharma v. State of Punjab and Manohar Lal v. Ugrasen.)

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27. Similar view has been reiterated by this Court in Commr. of Police v. Gordhandas Bhanji, Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia and Pancham Chand v. State of H.P. observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme.

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28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner”.

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Taking note of the respective submissions made across the Bar and considering the inputs provided by the parties, I am of the considered opinion, Ext.P9 order passed by the Land Tribunal dated 27.02.2016 cancelling Ext.P6 order,

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W.P.(C) No.8648 of 2016

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and dismissing the application submitted by the petitioner seeking certificate of title under Sec.7E cannot be sustained under law, being arbitrary and illegal, and therefore, I quash the same.

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Consequentially, there will be a direction to the 3^rd respondent to take on board Ext.P8 application submitted by the petitioner for issuance of Patta (title deed), and issue the same at the earliest and at any rate, within one month from the date of receipt of a copy of this judgment.

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The writ petition is allowed accordingly.

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Sd/- SHAJI P. CHALY JUDGE

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//true copy//

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P.S. to Judge

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St/09.12.2016

Kolothumthodi Safiya v. the Secretary

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Kolothumthodi Safiya v. the Secretary

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