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Pradeep E.P. v. the Village Officer

Kerala HC3 Aug 2018WP(C)/26303/2018

Case brief

AI extract

What is this about?

Single Judge, following a Division Bench judgment, quashed an order rejecting a request for a possession certificate. The court directed that the certificate cannot be denied merely because it is needed for a quarrying permit application, which involves land under Section 81 of the Kerala Land Reforms Act.

What did the court decide?

The impugned rejection orders stood set aside, and the matter was remitted to the respondent for fresh consideration within three weeks.

Pradeep E.P. Vs the Village Officer — Environment and Pollution | 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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FRIDAY, THE 3RD DAY OF AUGUST 2018 / 12TH SRAVANA, 1940

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WP(C).No. 26303 of 2018 -----------------------

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PETITIONER(S)

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1 PRADEEP E.P, AGED 43 YEARS,S/O PRABHAKARAN,

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PROPRIETOR,PATHIRIPPARA SAND UNIT,

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RESIDING AT ILAYAVEETTIL HOUSE, KARIAMBADI P.O,MEENANGADI,PURAKKADI VILLAGE,

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SULTHAN BATHERY TALUK,WAYANAD DISTRICT.

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2 M.K.JINACHANDRAN, S/O M.J.KRISHNAMOHAN,

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VIJAYAMAHAL HOUSE,KOLAPPARA P.O.

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SULTHAN BATHERY,WAYANAD DISTRICT.

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BY ADV.DR.GEORGE ABRAHAM

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RESPONDENT(S):

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1. THE VILLAGE OFFICER, VILLAGE OFFICE,KRISHNAGIRI,

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WAYANAD DISTRICT.

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2. TAHSILDAR, TALUK OFFICE,SULTHAN BATHERY.

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3. THE DISTRICT COLLECTOR,

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WAYANAD DISTRICT.

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4. THE GEOLOGIST, DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, MEENANGADI,WAYANAD.

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BY SENIOR GOVERNMENT PLEADER SRI SAIGI JACOB PALATTY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.V.

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WP(C).No. 26303 of 2018 (K)

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APPENDIX

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PETITIONER(S)' --------------	EXHIBITS ---------
EXHIBIT P1:	TRUE COPY OF THE AGREEMENT EXECUTED ON 27.3.2015
EXHIBIT P2:	TRUE COPY OF THE LICENCE ISSUED BY THE MEENANGADI GRAMA PANCHAYAT DATED 31.3.2017.
EXHIBIT P3:	TRUE COPY OF THE TAX RECEIPT DATED 4.8.2017.
EXHIBIT P4:	TRUE COPY OF THE LICENCE DATED 31.3.2015 GRANTED BY THE MINING AND GEOLOGY DEPARTMENT.
EXHIBIT P5;	TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER,KRISHNAGIRI IN FAVOUR OF THE 2ND PETITIONER.
EXHIBIT P6;	TRUE COPY OF THE LOCATION SKETCH ISSUED BY THE VILLAGE OFFICER, KRISHNAGIRI.
EXHIBIT P7:	TRUE COPY OF THE ORDER DATED 28.5.2018 ISSUED BY THE VILLAGE OFFICER.
EXHIBIT P8:	TRUE COPY OF THE JUDGMENT IN WPC NO 7205/2016 DATED 25.7.2018.
RESPONDENTS EX --------------	HIBITS: NIL -------

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/TRUE COPY/ K.V. P.S.TO JUDGE 04.08.2018

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ALEXANDER THOMAS, J.

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W.P(C).No.26303 Of 2018

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Dated this the 3rd day of August, 2018.

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J U D G M E N T

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

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“(i) To issue a Writ of Certiorari; or any other appropriate writ, order or direction to quash Exhibit P7 order issued by the 1st respondent.

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(ii) To issue a Writ of Mandamus; or any other appropriate writ, order or direction, directing the respondents 1 to 3 to issue possession certificate, location certificate and location sketch for the properties owned by the 2nd petitioner in Sy.No.428/3 of Krishnagiri village.

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(iii) To issue a Writ of Mandamus; or any other appropriate writ, order or direction, directing the 1st respondent to reconsider the application submitted by the petitioner dated 25.4.2018 and issue necessary revenue certificates sought for by him.”

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Heard Dr.George Abraham, learned counsel for the petitioners and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents.

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Dr.George Abraham, learned counsel for the petitioners, submits that this Court need not enter into the controversy in any manner and may issue directions as has been issued in Ext.P-8 judgment dated 25.7.2018 in W.P.(C).No.7205/2016 as well as the judgment dated 4.4.2017 of the Division Bench of this Court in W.A.No.612/2017, etc.

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W.P(C).No.26303 Of 2018

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In this case, the petitioners seek issuance of possession certificate and other related documents which they intend to use for pursuing their proposed application for grant of quarrying permit from the Mining and Geology Department in respect of their lands which are covered by the exemption under Section 81 of the Kerala Land Reforms Act, 1964. The stand of the respondents is to the effect that quarrying is not permissible in such lands and therefore it is not permissible to grant possession certificate and other allied certificates/documents, in furtherance of their 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 of a Division Bench of this Court in W.A.No.612 of 2017 (arising out of W.P.(C)No.7365 of 2016). A copy of the said Division Bench judgment dated 4.4.2017 in W.A.No.612 of 2017 has been produced as Ext.P4 in W.P.(C)No.21239 of 2018 and the said judgment 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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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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W.P(C).No.26303 Of 2018

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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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The learned Single Judge, after hearing the parties, allowed the writ petitions and directed issuance of possession certificates to the writ petitioners without any adverse entry or endorsement thereon. Being aggrieved by this direction State is in appeal in both the cases.

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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.

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With these modifications/clarifications, these appeals stand disposed of.

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All pending I.As. shall stand closed.”

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Accordingly, following the said line of directions issued by

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the Division Bench in the said Writ Appeal judgment, it is ordered that

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the orders, observations and directions issued in that appellate

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W.P(C).No.26303 Of 2018

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judgment will regulate these cases as well. Accordingly the impugned rejection orders in these cases will stand set aside and the matter will stand remitted to the respondent/official concerned for consideration of the said request afresh and in accordance with the above said judgment of the Division Bench in W.A.No.612 of 2017. It is made clear that the respondent/official concerned in these cases should consider the issue as to whether the petitioners are otherwise eligible and entitled for the grant of possession certificate and such other allied documents and the mere fact that they need this certificates for the purpose of producing it for the proposed application in the matter of quarrying permit shall not in any manner preclude the respondent/official from considering such request. The mere fact that the applicants proposed to use such certificates in furtherance of their proposed application for quarrying permit shall not be the ground for rejection.

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The issue as to whether the property is an exempted property under Section 81 of the Kerala Land Reforms Act and whether the user is restricted which cannot be changed would be a matter which would separately come up for consideration as the occasion may actually arise for consideration and such issue does not actually now arise for consideration and if such an issue actually arises for

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W.P(C).No.26303 Of 2018

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consideration, that would be an independent issue to be decided as and when it arises. If the respondent/Authority concerned is otherwise convinced about the grant of the above said certificates, then they should issue such certificates without showing the purpose for which it is being used. As already clarified by the Division Bench 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 right is always reserved

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to the official respondents concerned, necessary action for consideration. Consideration of the request of the petitioner afresh and for consequential action in that regard should be completed by the official respondent concerned, 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 Petitions (Civil) will stand finally disposed of.

Sd/-

ALEXANDER THOMAS,

Judge.

Bkn/-

// True copy // P. A to Judge //

Pradeep E.P. v. the Village Officer

Case brief

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Pradeep E.P. v. the Village Officer

Case brief

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