The High Court of Kerala examined a writ petition challenging an order by the Tahsildar in a land dispute. The court quashed the order as it was passed by the wrong authority and remanded the matter to the District Collector.
The impugned order set aside and the matter remitted to the District Collector for fresh consideration and decision.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 13TH DAY OF DECEMBER 2018 / 22ND AGRAHAYANA, 1940
WP(C).No. 37842 of 2018
PETITIONER/S:
MALIEKKAL JAMEELA, W/O.ABDUL RASHEED, AGED 58 YEARS, POST GRAMAM, PONNANI TALUK, MALAPPURAM DISTRICT.
BY ADV. SRI.C.M.MOHAMMED IQUABAL
RESPONDENT/S:
1 THE DISTRICT COLLECTOR, MALAPPURAM, POST MALAPPURAM, PIN - 676505.
2 THE TAHSILDAR, TIRUR TALUK OFFICE, POST TIRUR, MALAPPURAM DISTRICT, PIN-676101.
3 THE VILLAGE OFFICER, TRIKANDIYUR VILLAGE OFFICE, POST TRIKANDIYUR, MALAPPURAM DISTRICT, PIN-676104.
4 ABDUL NAZAR, S/O.MOHAMMEDKUTTY, THIRUTHIYIL HOUSE, OMACHAPUZHA.P.O., THEYYALA, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676320.
5 CHERACHAN VEETTIL MALIEKKAL KUTTU @ BAVA, S/O.KUNJUMON, MAULANA HOUSE, TRIPRANGODU AMSOM DESOM, POST TRIPRANGODE, ALUNGAL, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676108.
BY ADVS. SRI.JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE GOVERNMENT PLEADER
OTHER PRESENT:
SMT.A.C.VIDHYA, GOVT.PLEADER FOR R1 TO R3, SRI.JOBY JACOB PULICKKEKUDY FOR R4
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ALEXANDER THOMAS, J.
W.P.(C)No.37842 of 2018
Dated this the 13th day of December, 2018
J U D G M E N T
The prayers in the above Writ Petition (Civil) are as follows: “
appearing for the petitioner, Smt.A.C.Vidhya, learned GovernmentPleader appearing for official respondents 1 to 3 and Sri.Joby Jacob Pulickakudy, learned counsel appearing for contesting respondent No.4. Though contesting respondent No.5 has been duly served by Special Messenger, there is no appearance for that party.
cents of land in R.S.No.235/10 of Trikandiyur Village, Tirur Taluk, Malappuram Revenue District as per registered partition deed
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No.890/1978 of SRO, Kodakkal. That the mother of the petitioner was in possession of 15 cents of land in R.S.No.240/1 in the same village as per the abovesaid partition deed and it is adjacent to the petitioner's property. It is further stated that even though the extent of the above property was shown as 15 cents, its actual extent is only 9 cents. From the abovesaid land of 9 cents 4.77 cents of land was acquired for Tirur Ring Road and the balance is only 4.23 cents (viz, 9 cents - 4.77 cents = 4.23 cents). Now that the abovesaid property is in possession of the 4th respondent after several assignments and he tried to pay basic land tax of the property including the property of the petitioner and had tried to construct a commercial building encroaching the property of the petitioner. The petitioner had thereupon preferred Ext.P-3 representation dated 29.9.2017 before the 1st respondent District Collector who had ordered an enquiry through the 2nd respondent Tahsildar. In the said enquiry the 3rd respondent Village Officer had submitted Exts.P-4 & P-5 reports finding that the property should be identified through proper survey. That the 2nd respondent has also submitted Ext.P-6 report dated 2.2018 stating that the said dispute between the petitioner and the
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W.P.(C).No.37842/2018
4th respondent can be resolved only through civil court. Inspite of this the 2nd respondent has now issued the impugned Ext.P-7 order dated 13.11.2018 directing the 3rd respondent Village Officer to accept basic tax from the 4th respondent.
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W.P.(C).No.37842/2018
This Court does not propose to enter into the merits of the controversy in any manner. One of the prime contentions taken by the petitioner is that hearing in the matter was conducted by the office of the 2nd respondent on 16.8.2018 and the petitioner's husband had taken part in the said hearing and the matter was then adjourned by the 2nd respondent without intimating the petitioner's husband about the next posting date. That only now he comes to know that two further postings were made in the matter on 4.9.2018 & 11.9.2018 and thereafter the 2nd respondent has now passed the impugned Ext.P-7 order on 30.11.2018 and that the said decision making process is completed in Ext.P-7 is vitiated solely on account of the fact that the petitioner had denied a reasonable opportunity of being heard before the rendering of the said impugned decision. The counsel for the 4th respondent had denied the said allegation of the petitioner and had maintained that a reasonable opportunity was infact provided to the petitioner and that merely because the petitioner had chosen not to participate in the further hearing process conducted on 4.9.2018 & 11.9.2018 is no ground for interference by this Court.
W.P.(C).No.37842/2018
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W.P.(C).No.37842/2018
to the said notices have been made available to the perusal of this Court. It is seen that the notice informing about the posting date on 4.9.2018 does not bear the exact date and it is shown to be have been despatched in August, 2018. The initial of the section clerk along with the despatch seal shows that the said notice dated August, 2018 intimating the next posting date on 4.9.2018 is despatched from the office of the 2nd respondent only on 29.8.2018 and that too by ordinary post.
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W.P.(C).No.37842/2018
indicate that the service of notice on the petitioner was not proper and hence the decision making process is vitiated solely on account of violation of principles of natural justice and fairness. From the submissions of the petitioner's counsel, this Court get the impression that the petitioner's husband was appearing before the 2nd respondent as her authorised representative and that there appears to be some difference of opinion between the petitioner's husband and the 2nd respondent Tahsildar. It is asserted by the petitioner's counsel that the petitioner's husband was not properly permitted to make submission on previous dates. This Court is now proposing to remit matter for reconsideration of the matter afresh.
W.P.(C).No.37842/2018
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the matter requires an objective and impartial consideration and therefore the matter is to be decided on merits by the 1st respondent District Collector. Hence it is ordered that the matter in Ext.P-3 petition will stand remitted to the 1st respondent District Collector for consideration without any delay who will issue notices for hearing to the petitioner and the 4th respondent and will take a considered decision thereon without much delay preferably within a period of 2 months from the date of production of a certified copy of this judgment.
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W.P.(C).No.37842/2018
reworked based on the decision to be rendered by the 1st respondent District Collector as directed herein above.
With these observations and directions, the above Writ Petition
(Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
MMG
W.P.(C).No.37842/2018
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE SURVEY SKETCH OF THE PROPERTY. EXHIBIT P2 THE TRUE COPY OF THE COMMUNICATION ISSUED BY THE SPECIAL TAHSILDAR, LA(GENERAL), TIRUR DATED 17.1.2017. EXHIBIT P3 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 29.7.2017. EXHIBIT P4 THE TRUE COPY OF THE REPORT OF THE 3RD RESPONDENT DATED 26.4.2018. EXHIBIT P5 THE TRUE COPY OF THE REPORT OF THE 3RD RESPONDENT DATED 31.5.2018. EXHIBIT P6 THE TRUE COPY OF THE REPORT OF THE 2ND RESPONDENT DATED JUNE, 2018. EXHIBIT P7 THE TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 13.11.2018.
3 issues framed by the court
Whether the impugned order passed by the Tahsildar is vitiated due to lack of natural justice in the notice process.
Whether the matter was correctly decided by the Tahsildar instead of the District Collector.
Whether the application requires remittal and replay by the District Collector.
MALIEKKAL JAMEELA
THE DISTRICT COLLECTOR, MALAPPURAM
THE TAHSILDAR, TIRUR TALUK OFFICE
THE VILLAGE OFFICER, TRIKANDIYUR VILLAGE OFFICE
ABDUL NAZAR
CHERACHAN VEETTIL MALIEKKAL KUTTU @ BAVA
ALEXANDER THOMAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
