Allowed

Thomas Sebastian, v. State of Kerala

Kerala HC13 Feb 2019WP(C)/4253/2019

Case brief

AI extract

What is this about?

Court quashed rejection of revenue certificates applied for by petitioners to obtain possession and other certificates for property claimed as plantation land. Order remits matter to Village Officer to issue certificates without noting intended quarrying use, reserving government power to act if violation is alleged later.

What did the court decide?

Quashed rejection orders; remitted to 5th Respondent to issue possession and other revenue certificates within two weeks without noting quarrying purpose.

Thomas Sebastian, Vs State of Kerala — Mining and Natural Resources | Kerala HC (2019)

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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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WEDNESDAY,THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940

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WP(C).No. 4253 of 2019

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PETITIONERS:

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1 THOMAS SEBASTIAN, AGED 70 YEARS, S/O. DEVASSIA, THAKIDIYEL HOUSEM, PHILOMINAPURAM ESTATE, KOODATHAI, KOZHIKODE.

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2 CINTHY THOMAS, W/O. THOMAS SEBASTIAN, THAKIDIYEL HOUSE, PHILOMINAPURAM ESTATE, KOODATHAI, KOZHIKODE.

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3 MARTIN THOMAS, S/O. THOMAS SEBASTIAN, THAKIDIYEL HOUSE, PHILOMINAPURAM ESTATE, KOODATHAI, KOZHIKODE.

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BY ADVS.SRI.T.G.RAJENDRAN

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SRI.T.R.TARIN

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RESPONDENTS:

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

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2 THE DISTRICT COLLECTOR, KOZHIKODE - 673305

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3 THE DIRECTOR OF MINING AND GEOLOGY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001.

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4 THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, KOZHIKODE - 673305.

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5 THE VILLAGE OFFICER, RAROTH VILLAGE OFFICE, THAMARASSERY, KOZHIKODE - 673571.

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6 THE TAHASILDAR, THAMARASSERY, KOZHIKODE673571.

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OTHER PRESENT:

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SRI.K.J.MOHAMMED ANZAR, SPL.GOVT.PLEADER(REVENUE)

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.4253 of 2019

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-: 2 :-

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ALEXANDER THOMAS, J.

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= = = = = = = = = = = = = = = = =

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W.P.(C) No.4253 of 2019

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13^th day of February, 2019

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J UD G ME N T

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The prayers in the above Writ Petition(Civil) are as follows:

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“a) Issue a writ of certiorari calling for the records leading to Ext P2, P3 and P4 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 5^th Respondent to issue possession certificate, sketch, location certificate, site plan and demarcation certificate and other certificates sought for by the Petitioners forthwith.

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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, the learned counsel appearing

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for the petitioners and Sri. K.J. Mohammed Anzar, the learned Special Government Pleader (Revenue) appearing for the respondents.

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In this case, the petitioners essentially seek directions in the matter of issuance of revenue certificates like possession certificate, location sketch, site plan, demarcation certificate etc. which they intend to use for pursing their proposed application for grant of quarrying permit from the Mining and Geology Department

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W.P.(C) No.4253 of 2019

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in respect of the subject property in question, which stated to have been granted the benefit for exemption being plantation land, as envisaged under Section 81(1)(e) of the Kerala Reforms Act, 1963. The stand of the official respondents is to the effect that quarrying activities are not permissible in such plantation lands, exempted lands can be used only for present exempted purpose and that quarrying activity is not an exempted purpose and therefore it is impermissible to issue possession certificate and other allied revenue certificates in furtherance of the petitioners' proposed application for grant of quarrying permit. The matter in issue is no longer res integra and it is covered by a series of cases as can be seen in Ext.P-5 judgment dated 05.04.2018 in W.P.(C)7732 of 2018, Ext.P-6 judgment dated 05.07.2018 in W.P.(C) No.20855 of 2018 which in turn are on the basis of the directions and orders issued by the Division Bench in Ext.P-7 judgment dated 04.04.2017 in W.A. No.564 of 2017 and connected appeal. Ext.P-7 common judgment dated 04.04.2017 of the Division Bench in W.A. Nos.564 and 612 of 2017 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

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W.P.(C) No.4253 of 2019

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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 adverse entry or endorsement thereon. Being aggrieved by this direction State is in appeal in both the cases.

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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

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W.P.(C) No.4253 of 2019

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reserved to the Government.

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

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In the light of the above said aspects, following the line of directions and orders already issued by the Division Bench in Ext.P-7 writ appellate judgment, it is ordered that the orders, observations and directions issued in Ext.P-7 writ appellate judgment will regulate the present case as well. Accordingly, the impugned rejection orders will stand quashed and the matter will stand remitted to the 5^th respondent-Village Officer will consider the above said requests of the petitioners for issuance of revenue certificate like possession certificate, location sketch, site plan, survey sketch and such other certificates as sought for by the petitioners afresh and strictly in accordance with the direction issued by the Division Bench in Ext.P-7 writ appellate judgment. It is ordered by the 5^th respondent-Village Officer shall consider the issue as to whether the petitioners are otherwise eligible and entitled for grant of those revenue certificates and the mere fact that the petitioners need those revenue certificates for the purpose of producing the same along with the proposed application in the matter of quarrying permit shall not in any manner

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W.P.(C) No.4253 of 2019

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be the ground for rejection and in other words, the request for issuance of revenue certificates should be considered in accordance with the norms regulating the issuance of such certificates and the said request is found to be otherwise in order, same shall be granted by the 5^th respondent- Village Officer, without much delay preferably

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within a period of two weeks from the date of production of a certified copy of this judgment.

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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 Section 81 of the Land Reforms Act, 1963 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 respondent authority concerned is convinced for grant of the above said certificate, then the said authority should issue possession certificate and other allied documents, without

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W.P.(C) No.4253 of 2019

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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 petitioners afresh and other consequential action in that regard should be completed by the competent authority of respondents 5 and 6, 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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DST

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W.P.(C) No.4253 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED 2209-2016 IN RESPECT OF 1ST PETITIONERS PROPERTY

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EXHIBIT P1 A TRUE COPY OF THE TAX RECEIPT DATED 9- 11-2017 IN RESPECT OF 2ND PETITIONERS PROPERTY EXHIBIT P1 B TRUE COPY OF THE TAX RECEIPT DATED 9- 11-2017 IN RESPECT OF 3RD PETITIONERS PROPERTY. EXHIBIT P2 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 5TH RESPONDENT TO THE 1ST PETITIONER DATED 1-2-2019 EXHIBIT P3 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 5TH RESPONDENT TO THE 2ND PETITIONER DATED 31-1-2019. EXHIBIT P4 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 5TH RESPONDENT TO THE 3RD PETITIONER DATED 1-2-2019.

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EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WP(C) 7732/2018 DATED 5-4-2018.

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EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN W.P(C) NO. 20855/2018 DATED 5-7-2018 OF THIS HON'BLE COURT.

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EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WA NO. 564/2017 DATED 4-4-2017.

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RESPONDENTS' EXHIBITS:NIL

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//True copy//

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P.A.To Judge

Thomas Sebastian, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Thomas Sebastian, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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