Disposed

Jabbar.a.K v. State of Kerala

Kerala HC5 Jul 2018WP(C)/20855/2018

Case brief

AI extract

What is this about?

The Single Judge followed the Division Bench ratio that a possession certificate need not reflect the purpose of acquisition or exempt status. The court remitted the matter to authorities to issue the certificate without adverse endorsement regarding the quarrying permit.

What did the court decide?

Writ petition disposed of; matter remitted to competent authorities for fresh consideration and issuance of possession certificate within three weeks.

Jabbar.a.K Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2018)

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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 ALEXANDER THOMAS

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THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940

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WP(C).No. 20855 of 2018

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-----------------------

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PETITIONER

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JABBAR A.K., AGED 41 YEARS, S/O.MOIDEEN KUNHI, AMBAYATHODU HOUSE, THAMARASSERY, KOZHIKODE-673573.

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BY ADVS.SRI.T.G.RAJENDRAN

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SRI.T.R.TARIN SMT.ANN SUSAN GEORGE SRI.V.A.VINOD

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RESPONDENT(S):

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1. STATE OF KERALA, REP. BY SECRETARY, DEPARTMENT OF MINING, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2. THE DISTRICT COLLECTOR, KOZHIKODE-673305.

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3. THE VILLAGE OFFICER, RAROTH VILLAGE OFFICE, KOZHIKODE-673574.

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4. THE TAHSILDAR, THAMARASSERY, KOZHIKODE-673571.

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5. THE COMMISSIONER OF LAND REVENUE, COMMISSIONERATE OF LAND REVENUE, THIRUVANANTHAPURAM-695001.

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BY GOVERNMENT PLEADER SRI K.P.MADHU

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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WP(C).No. 20855 of 2018 (F)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT IN RESPECT OF THE PROPERTIES OWNED BY THE PETITIONER AND 7 OTHERS DATED 18-5-2018. EXHIBIT P1(A) TRUE COPY OF THE TAX RECEIPT IN RESPECT OF THE PROPERTIES OWNED BY THE PETITIONER AND 7 OTHERS DATED 18-5-2018. EXHIBIT P2 TRUE COPY OF THE APPLICATION PREFERRED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 4-6-2018. EXHIBIT P3 TRUE COPY OF THE LETTER REJECTING THE SAID APPLICATION FOR POSSESSION CERTIFICATE AND OTHER REVENUE RECORDS ISSUED BY THE 3RD RESPONDENT DATED 7-6-2018.

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RESPONDENTS EXHIBITS: NIL

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/TRUE COPY/ K.V. P.S.TO JUDGE 11.07.2018

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ALEXANDER THOMAS, J.

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W.P.(C)No.20855 of 2018

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Dated this the 05^th day of July, 2018

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JUDGMENT

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The prayers in this Writ Petition (Civil) are as follows:-

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“a) Issue a writ of certiorari calling for the records leading to Ext P3 and quash the original of the same.

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b) Issue a writ of mandamus or any appropriate writ order or direction, directing the 3^rd Respondent to issue possession certificate, survey sketch and other revenue records sought for by the Petitioner as per Ext P2 application.

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c)grant such other reliefs prayed for from time to time including cost of these proceedings.”

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Heard Sri.T.G.Rajendran, learned counsel appearing for

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the writ petitioner and Sri.K.P.Madhu, learned Government Pleader appearing for the respondents.

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In this case, the petitioner essentially seeks directions in the matter of issuance of possession certificate and other allied documents, which he intends to use for pursuing his proposed application for grant of quarrying permit from the Mining & Geology Department in respect of the land in question, which is covered by the exemption granted under Sec.81(1)(e) of the Kerala Land Reforms Act, 1963. The stand of the official respondents is to the effect that quarrying is not permissible in those lands and therefore it is not permissible to

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W.P.(C)No.20855 of 2018

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..2..

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issue possession certificate and other allied documents in furtherance of the petitioner's proposed application for grant of quarrying permit. The matter in issue is no longer res integra and is covered by the judgment dated 4.4.2017 rendered by the Division Bench of this Court in W.A.No.612/2017 (arising out of W.P.(C).No.7365/2016) and connected case. The said judgment of the Division Bench in W.A.No. 612/2017 and connected case reads as follows:

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“These two writ appeals arise from a common judgment passed by the learned Single Judge in two separate independent writ petitions which had raised a common issue of law. W.A.No.564/17 arises from W.P.(C)28877/16 whereas W.A.612/17 arises from W.P.(C)7365/16. State is in appeal in both the cases and the writ petitioners are the respondents.

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2. We have heard learned Additional Advocate General in support of both the appeals and the learned counsel appearing for the respondents in these writ appeals and with their consent, we are disposing of the writ appeals at this stage itself.

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3. The writ petitioners had purchased certain lands and had sought possession certificates from the concerned Village Officer/Tahsildar. Insofar as W.P.(C)No.28877/16 is concerned, the possession certificate was not issued, which occasioned filing of W.A.564/17. In W.P.(C)7365/16, the possession certificate was issued, but with an endorsement that it was a part of exempted plantation in terms of the Kerala Land Reforms Act. The reason for refusal to issue possession certificate was that the land had been purchased for setting up an educational institution and it being an exempted land as a plantation, such a possession certificate for any other purpose could not be issued in the light of Ext.P4 communication dated 25.2.2015 issued by the Secretary, Land Board.

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4. The learned Single Judge, after hearing the parties, allowed the writ petitions and directed issuance of possession certificates to the writ petitioners without any

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W.P.(C)No.20855 of 2018

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..3..

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adverse entry or endorsement thereon. Being aggrieved by this direction State is in appeal in both the cases. 5. Having heard learned counsel for the parties, we are of the view that the direction as given by the learned Single Judge requires no interference inasmuch as the possession certificate would disclose only the owner and the possession of the property. Whether the property is an exempted property or its user is restricted which cannot be changed would be a matter that would separately come up for consideration as the occasion may arise by its user, by the purchaser or by any other person. That would be an independent issue to be decided as and when it arises. Those proceedings would have to be initiated if at all in accordance with the provisions of the Kerala Land Reforms Act or any other law applicable to the situation. But the occasion would only arise later, when any other user in violation of exemption is alleged. The person will have his own defence to those. Those proceedings cannot be preempted by any adverse entry in the possession certificate. In other words, an unqualified certificate would not fetter the right of the Government in taking any action, if they are of the view that any law is being violated. That right is always reserved to the Government. 6. With these modifications/clarifications, these appeals stand disposed of.”

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In the light of the abovesaid aspects, following the

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abovesaid line of directions issued by the Division Bench in the writ appeal judgment, it is ordered that the orders, observations and directions issued in the above appellate judgment will regulate the present case as well. Accordingly, the matter will stand remitted to the competent authority of respondents 3 and 4 to consider the abovesaid request of the petitioner for issuance of possession certificate, afresh and in accordance with the abovesaid Division Bench judgment in W.A.No. 612/2017 and connected case. It is made clear that the competent

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W.P.(C)No.20855 of 2018

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..4..

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authority among respondents 3 and 4 should consider the issue as to whether the petitioner is otherwise eligible and entitled for grant of possession certificate and such other allied documents and the mere fact that the petitioner needs the above certificate for the purpose of producing along with the proposed application in the matter of quarrying permit shall not in any manner preclude the respondent officials from considering such request. In other words, the mere fact that the petitioner proposes to use such certificate in furtherance of his proposed application for quarrying permit, shall not be the ground of rejection for the issuance of the possession certificate and other allied documents.

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It is further ordered that the issue as to whether the property in question for which the possession certificate is sought, is an exempted property under Sec.81 of the Kerala Land Reforms Act and whether its user is restricted, which cannot be changed, would be a matter that would separately come up for consideration as and when the occasion may actually demand for consideration and such issue does not now arise for consideration in this proceedings and if such an issue actually arises for consideration later, that would be an independent issue to be decided as and when it arises for actual consideration. If the

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W.P.(C)No.20855 of 2018

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..5..

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respondent authority concerned is convinced for grant of the abovesaid certificate, then the said authority should issue possession certificate and other allied documents, without showing the purpose for which it is issued. As already clarified in the abovesaid Division Bench judgment it is also made clear that an unqualified certificate would not fetter the right of the respondent State authorities concerned in taking action, if they are of the view that any law is being violated and that the right is always reserved to the official respondents concerned for taking necessary action, as and when occasion really demands. Consideration of the request of the petitioner afresh and other consequential action in that regard should be completed by the competent authority of respondents 3 and 4, without much delay, preferably within a period of three weeks from the date of production of a certified copy of this judgment.

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With these observations and directions, the aforecaptioned Writ Petition (Civil) stands finally disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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skj

Jabbar.a.K v. State of Kerala

Case brief

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Jabbar.a.K v. State of Kerala

Case brief

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