Quashed

M.P.Jackson v. State of Kerala

Kerala HC9 Apr 2018WP(C)/5503/2018

Case brief

AI extract

What is this about?

The High Court of Kerala quashed an order declining land utilization permission, holding it arbitrary, illegal, and a violation of natural justice for ignoring relevant agricultural reports and previous court directives.

What did the court decide?

Quashed impugned order; directed respondent to reconsider the issue within two months taking into account relevant reports and previous court directions.

M.P.Jackson Vs State of Kerala — Land Acquisition | 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 SHAJI P.CHALY

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MONDAY, THE 9TH DAY OF APRIL 2018 / 19TH CHAITHRA, 1940

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WP(C).No. 5503 of 2018

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PETITIONER(S):

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1 M.P. JACKSON, AGED 63 YEARS, SON OF PAUL, MAMPILLY HOUSE, MANAVALASSERI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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2 M.P. TOMY, AGED 61 YEARS, SON OF PAUL, MAMPILLY HOUSE, MANAVALASSERI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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3 M.G. GIGI, AGED 58 YEARS, SON OF PAUL, MAMPILLY HOUSE, MANAVALASSERI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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4 M.P. BRITE AGED 55 YEARS, SON OF PAUL, MAMPILLY HOUSE, MANAVALASSERI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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5 USHA M.P., AGED 61 YEARS, DAUGHTER OF PAUL, MAMPILLY HOUSE, MANAVALASSERI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM

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RESPONDENT(S):

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

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2. REVENUE DIVISIONAL OFFICER, THRISSUR DISTRICT, 1ST FLOOR, CIVIL STATION, AYYANTHOLE, THRISSUR-680 003.

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WP(C).No. 5503 of 2018 (K)

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3. AGRICULTURAL OFFICER, KRISHI BHAVAN, IRINJALAKUDA - 680 121. 4. COMMISSIONER FOR LAND REVENUE, PUBLIC OFFICE BUILDING, MUSEUM ROAD, OPPOSITE ZOO, VIKHAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033. 5. JOSEPH MARTIN, AGED 47 YEARS, S/O.A.J. BABY, ALENGADEN HOUSE, PARK VIEW ROAD, IRINJALAKUDA - 680 121. ADDL. R5 IS IMPLEADED AS PER ORDER DATED 03.04.2018 IN I.A.4269/2018. R1 TO R5 BY SENIOR GOVERNMENT PLEADER SRI.M.R. SABU ADDL.R5 BY ADVS. SRI.N.M.MADHU SMT.C.S.RAJANI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 5503 of 2018 (K)

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APPENDIX

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PETITIONERS' EX ---------------	HIBITS: -------
EXHIBIT-P1:	A TRUE COPY OF THE RELEVANT EXTRACTS OF THE DATA BANK PREPARED UNDER THE 2008 ACT.
EXHIBIT-P2:	A COPY OF ONE SUCH APPLICATION DATED 07.04.2017 MADE BY THE 1ST PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT-P3:	A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 14.06.2017 IN WRIT PETITION (CIVIL) NO.19697 OF 2017.
EXHIBIT-P4:	A TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4.8.2017 IN RESPECT OF THE 90 CENTS OF PROPERTY OF THE 2ND PETITIONER IN SY.NO.350/1 IN IRINJALAKKUDA VILLAGE.
EXHIBIT-P4(A):	A TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4.8.2017 IN RESPECT OF THE 63 CENTS OF PROPERTY OF THE 4TH PETITIONER IN SY.NO.350/1 IN IRINJALAKKUDA VILLAGE.
EXHIBIT-P4(B):	A TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4.8.2017 IN RESPECT OF THE 1 ACRE OF PROPERTY OF THE 3RD PETITIONER IN SY.NO.350/1 IN IRINJALAKKUDA VILLAGE.
EXHIBIT-P4(C):	A TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4.8.2017 IN RESPECT OF THE 38 CENTS OF PROPERTY OF THE 5TH PETITIONER IN SY NO.350/1 IN IRINJALAKKUDA VILLAGE.
EXHIBIT-P4(D):	A TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4.8.2017 IN RESPECT OF THE PROPERTY OF PETITIONERS 1 TO 4 IN SY NO.352/3 IN IRINJALAKKUDA VILLAGE.
EXHIBIT-P4(E):	A TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4.8.2017 IN RESPECT OF THE 63 CENTS OF PROPERTY OF THE 1ST PETITIONER IN SY.NO.351 IN IRINJALAKKUDA VILLAGE.
EXHIBIT-P4(F):	A TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4.8.2017 IN RESPECT OF THE 31 CENTS OF PROPERTY OF THE 1ST PETITIONER IN SY.NO.352/5 IN IRINJALAKKUDA VILLAGE.
EXHIBIT-P4(G):	A TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 4.8.2017 IN RESPECT OF THE 90 CENTS OF PROPERTY OF THE 1ST PETITIONER IN SY.NO.350/1 IN IRINJALAKKUDA VILLAGE.
EXHIBIT-P5:	A TRUE COPY OF THE REPORT OF THE ADDL.TAHSILDAR DATED 29.04.2017 IN FILE NO.B5-5895/17.
EXHIBIT-P5(A):	TRUE COPY OF THE REPORT OF THE ADDL.TAHSILDAR DATED 29.04.2017 IN FILE NO.B5-5896/17.

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WP(C).No. 5503 of 2018 (K) --------------------------

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EXHIBIT-P5(B):	TRUE COPY OF THE REPORT OF THE ADDL.TAHSILDAR DATED 29.04.2017 IN FILE NO.B5-5897/17.
EXHIBIT-P5(C):	TRUE COPY OF THE REPORT OF THE ADDL.TAHSILDAR DATED 29.04.2017 IN FILE NO.B5-5898/17
EXHIBIT-P5(D):	TRUE COPY OF THE REPORT OF THE ADDL.TAHSILDAR DATED 29.04.2017 IN FILE NO.B5-5899/17.
EXHIBIT-P5(E):	TRUE COPY OF THE REPORT OF THE ADDL.TAHSILDAR DATED 29.04.2017 IN FILE NO.B5-5900/2017.
EXHIBIT-P6:	TRUE COPY OF THE REPORT DATED 03.11.2017 FILED BY ADDL.TAHSILDAR BEFORE THE 2ND RESPONDENT.
EXHIBIT-P7:	TRUE COPY OF THE IMPUGNED ORDER NO.6657/2017/B2/K.DIS DATED 21.12.2017 ISSUED BY THE SUB COLLECTOR.
EXHIBIT-P8:	TRUE COPY OF THE APPEAL UNDER CLAUSE 11 OF THE KLU ORDER AGAINST THE IMPUGNED ORDER DATED 19.12.2017 PREFERRED BY THE PETITIONERS ALONG WITH RECEIPT NO.A4-2753/18 OF 20.01.2018 (WITHOUT ANNEXURES).
EXHIBIT-P9:	TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT DATED 25.09.2017 IN WRIT PETITION (CIVIL) NO.7622 OF 2017.
EXHIBIT-P10:	TRUE COPY OF THE JUDGMENT OF THE HON'BLE DIVISION BENCH OF THE HIGH COURT OF KERALA DATED 18.12.2017 IN WRIT APPEAL NO.2326 OF 2017.
RESPONDENTS' EX ---------------	HIBITS: ------
EXHIBIT-R5(A):	TRUE COPY OF SALE DEED NO.1437/82 OF S.R.O. IRINJALAKUDA.
EXHIBIT-R5(B):	TRUE COPY OF THE SALE DEED NO.1737/82 OF S.R.O. IRINJALAKUDA.
EXHIBIT-R5(C):	TRUE COPY OF THE SALE DEED NO.3995/95 OF S.R.O. IRINJALAKUDA.
EXHIBIT-R5(D):	TRUE COPY PF THE SALE DEED NO.3996/95 OF S.R.O. IRINJALAKUDA.
EXHIBIT-R5(E):	TRUE COPY OF THE SALE DEED NO.2080/06 OF S.R.O. IRINJALAKUDA.
EXHIBIT-R5(F):	TRUE COPY OF THE BUILDING PERMIT DATED 31.08.2010 ISSUED BY THE IRINJALAKUDA MUNICIPAL COUNCIL.
EXHIBIT-R5(G):	TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 19.10.2013. /TRUE COPY/ P.S.TO JUDGE

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mbr/ 11.04.2018.

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SHAJI P. CHALY, J.

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W.P.(C) No.5503 of 2018

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----------------------------------------------Dated this the 9^th day of April, 2018

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JUDGMENT

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This writ petition is filed by the petitioners challenging Ext.P7 order passed by the 2^nd respondent dated 21.12.2017 under Clause 6 of the Kerala Land Utilization Order. Material facts for the disposal of the writ petition are as follows:

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Petitioners together are the absolute owners in possession of an extent of 2.05 hectares of land comprised in Survey Nos.350/1, 350/2, 351/Pt, 352/1, 352/2, 352/3, 352/5 and 347/1 of Irinjalakuda Village. According to the petitioners, the said property is a pucca residential plot. The said land is

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recorded in the BTR as ' Nilam ', however, shown also as 'converted prior to 1980' in the data bank viz. Ext.P1 prepared under the Kerala Conservation of Paddy Land and Wet Land Act, 2008. Applications were filed by the petitioners in order to grant permission under Clause 6 of the Land Utilization Order. Thereafter, petitioners approached this Court and secured Ext.P3 judgment whereby modalities were prescribed

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and directed the statutory authority to consider the

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W.P.(C) No.5503 of 2018 2

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applications in accordance with law. It is also the case of the petitioners that, Ext.P4 series of reports of the Agricultural Officer show that the property was converted approximately during the year 1980, and there are about 18 coconut trees having the age of 30 - 40 years and 6 mango-trees having the age of 20 years. It is also stated that, Ext.P5 report is filed by the Tahsildar, stating that there is no paddy cultivation within 2 kms. Anyhow, Ext.P7 order is passed by the authority stating that petitioners are not entitled to get any permission under Clause 6 of the Land Utilization Order in respect of the property situated in the Survey Numbers specified above.

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The additional 5^th respondent has filed a counter affidavit, explaining the circumstances under which the order happened to be passed by the 2^nd respondent, and also contending that there is no illegality liable to be interfered with by this Court under Article 226 of the Constitution of India, since the proceedings were completed by the 2^nd respondent after taking into account the relevant inputs and the directives issued by this Court in Ext.P3 judgment. It is also contended by learned counsel for the 5^th respondent that, the property situate in Survey No.350/1 was still a paddy field when the

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W.P.(C) No.5503 of 2018 3

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Municipality granted permission to the petitioners/the company formed by them to carry out construction. This is also recorded.

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I have heard learned counsel for the petitioners, learned Senior Government Pleader and the learned counsel appearing for the additional 5^th respondent. Perused the documents on record and the pleadings put forth by the respective parties.

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The centre of controversy revolves around Ext.P7 order passed by the 2^nd respondent. In my considered opinion, none of the aspects with respect to Exts.P4 and P5 are taken into account by the 2^nd respondent. It is also clear from Ext.P7 order that the directives contained in paragraphs 2 and 3 of the Ext.P3 judgment are not taken into account by the 2^nd respondent while passing Ext.P7 order.

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Taking into account the respective submissions made across the Bar and the pleadings and the documents produced by the respective parties, in my considered opinion, having not taken into account the relevant inputs as are specified above and the directives of this Court, there is clear arbitrariness, illegality and unfairness on the part of the 2^nd

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W.P.(C) No.5503 of 2018

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respondent in passing Ext.P7 order. Looking at the issue in any manner, there is patent arbitrariness, illegality and unfairness. The order is also a non-speaking one, and thereby violates the principles of natural justice. Therefore, I am of the considered opinion that, interference is justified under Article 226 of the Constitution of India.

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Accordingly, I quash Ext.P7 order and direct the 2^nd respondent to re-consider the issue after providing sufficient opportunity of hearing to the petitioners, 5^th respondent and any other interested persons, and attain finality at the earliest possible time, and at any rate, within two months from the date of receipt of a copy of this judgment, taking into account the directions contained in Ext.P3 judgment, Exts.P4 and P5 reports and any other documents or evidence let in by the respective parties. It is also made clear that, the petitioners will be at liberty to produce any judgments rendered by this Court in this regard, and if any judgments are produced, the same shall also be taken into account by the respondents while complying with the above directions.

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W.P.(C) No.5503 of 2018

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The writ petition is disposed of accordingly.

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Sd/- SHAJI P. CHALY JUDGE

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St/09.04.2018

M.P.Jackson v. State of Kerala

Case brief

What is this about?

What did the court decide?

M.P.Jackson v. State of Kerala

Case brief

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What did the court decide?

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