Dismissed

Padmasree P.Gopinathan Nair v. the State of Kerala

Kerala HC7 Oct 2021WP(C)/20676/2018

Case brief

AI extract

What is this about?

This PIL challenged the formation of Nedumangad Revenue Division without prior legislation. The Court held that under Articles 154 and 162, the State had the power to issue executive orders to form Revenue Divisions in absence of specific statute. The petition was dismissed as the specific grievances regarding Neyyattinkara Taluk were rendered moot due to its subsequent re-inclusion in Thiruvanant

What did the court decide?

Writ petition dismissed; no interference in Government order allowing formation of Nedumangad Revenue Division via executive power.

Padmasree P.Gopinathan Nair Vs the State of Kerala — Land Acquisition | Kerala HC (2021)

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W.P.(C) No. 20676/2018

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 7^TH DAY OF OCTOBER 2021 / 15TH ASWINA, 1943

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WP(C) NO. 20676 OF 2018

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PETITIONERS:

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1 PADMASREE P.GOPINATHAN NAIR

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AGED 95 YEARS

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S/O.PADMANABHA PILLAI, NARAYANA MANDIRAM,NEAR T.B.JUNCTION, NEYYATTINKARA,THIRUVANANTHAPURAM-695 014.

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2 R.SUNDERESHAN NAIR

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AGED 78 YEARS

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S/O.RAGHAVAN NAIR, MGS BHAVAN,KODANGAVILA, NEAR MADHAVAN NAIR ROAD,NEYYATTINKARA, THIRUVANANTHAPURAM – 695 123.

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BY ADVS.

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SRI.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH

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RESPONDENT/S:

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

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2 ADDITIONAL CHIEF SECRETARY (REVENUE) GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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3 PRINCIPAL SECRETARY DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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4 LAND REVENUE COMMISSIONER, PUBLIC OFFICE, THIRUVANANTHAPURAM-695 001.

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5 K.K.DIVAKARAN

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MEMBER, LEGISLATIVE ASSEMBLY, NEDUMANGAD ASSEMBLY

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W.P.(C) No. 20676/2018 : 2 :

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CONSTITUENCY,KERALA LEGISLATIVE COMPLEX, PALAYAM,THIRUVANANTHAPURAM - 695 033.

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BY ADV SHRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL

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R1 TO R4 BY SRI.S.RENJITH, SPL. GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No. 20676/2018

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Dated this the 7^th day of October, 2021.

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JUDGMENT

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SHAJI P. CHALY.

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This Public Interest Litigation is filed by the residents within the limits of Neyyattinkara Taluk, Thiruvananthapuram District seeking to issue a writ of certiorari to quash Exts.P3 Government order and P4 Gazette notification in its entirety or at least to the extent of formation

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of Nedumangad Revenue Division, including Neyyattinkara and Kattakkada Taluks, in its jurisdiction, and for a further writ of mandamus to the State and its officials to form a new Revenue Division only after a legislation by the State legislature in exercise of legislative power conferred under Entry 45 of List II of the Constitution of India laying down the modalities and criteria for formation of a new Revenue Division and for fixing its headquarters within such time limits fixed by this Court.

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The first petitioner is a freedom fighter and renowned Gandhian and the second petitioner is a former Minister and was twice member of Legislative Assembly from the Neyyattinkara Assembly Constituency, who is also an academician said to have 5 decades of teaching experience. They are also the patron and working Chairman of Neyyattinkara District Formation Samithi, which is an association of

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persons to achieve the laudable objective of formation of Neyyattinkara District by including Neyyattinkara and Kattakada Taluks.

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According to the petitioners, ever since 1987, the successive Governments in office were considering the formation of Neyyattinkara Revenue Division with headquarters at Neyyattinkara. However, the State Government, during the year 2018, decided to form Nedumangad Revenue Division in contradistinction to the Neyyattinkara Revenue Division by including Neyyattinkara and Kattakada Taluks, apart from Nedumangad Taluk, which according to the petitioners, causes innumerable difficulties in regard to transport facilities, accessibility, convenience, and hardship to the people of the Neyyattinkara and Kattakadda Taluks.

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The legal contention raised by the petitioners is that the State Government is endowed with the power to form Revenue Divisions by virtue of Entry 45 of List II of the Constitution of India. However, there is no legislation laying down the modalities and criteria for the formation of Revenue Divisions in exercise of the legislative power under that entry.

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That apart, it is contended that there is no rule of executive fiat under Article 162 of the Constitution of India laying down the yardstick for the formation of a Revenue Division. The Revenue

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Divisional Officer, who is at the helm of affairs of Revenue Division, is a judicial authority under the Criminal Procedure Code, Senior Citizens Act, Transfer of Registry Rules etc.

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The sum and substance of the contention put forth by the petitioners is that a judicial authority cannot be created without legislative sanction as per the scheme envisioned under the Constitution. The petitioners have also produced various documents to establish that efforts were made by the petitioners and others for the formation of Neyyattinkara District and in order to achieve the said goal, the petitioners have submitted Ext. P1 representation before the State Revenue Minister on 11.10.2017. However, no action was initiated by the Government rather than proceeding to constitute Nedumangad Taluk by including Neyyattinkara Taluk and Kattakada Taluk in the said Revenue Division. The petitioners have also produced a map of Thiruvananthapuram District to show that there would be innumerable difficulties for the people of Neyyattinkara and Kattakada to reach the head office of the Nedumangad Revenue Division, which is still away from the Thiruvananthapuram Revenue Division, which has its office at Kudappanakunnu. It is also pointed out that the people of the Neyyattinkara Taluk and Kattakada Taluk would have to travel more than 20 kms. to reach the Revenue Divisional Office of the Nedumangad division from the existing Thiruvananthapuram Division.

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These are the basic background facts projected by the petitioners to secure the reliefs.

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The State and its officials— respondents 1 to 4 have filed a detailed statement basically contending that there is no public interest involved in the present case and what is involved is only private and personal interest of the petitioners, who are the residents of the Neyyattinkara and who are desirous to get a new district formed bifurcating the Thiruvananthapuram District with headquarters at Neyyattinkara by including Neyyattinkara and Kattakada Taluk under its jurisdiction. It is also submitted that the State is empowered to issue orders in the nature of Exts.P3 and P4 and Annexure R1(a) gazette publication dated 4^th February, 2019 and that the formation of a new Revenue Division or any decision to bring about the changes in the boundaries of Revenue Division is a power ancillary and incidental to many fields of legislation in regard to which the State legislature can make law. That apart, it is submitted that the State Government is vested with ample powers under Article 154 r/w Article 162 of the Constitution of India to exercise its executive power, either directly or through the officers subordinate to it. Therefore, the State Government has the legislative competency to form a new Revenue Division, as was done by Exts.P3 and P4 and Annexure R1(a).

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The significant aspect to be noted is that during the pendency of the writ petition, even though Neyyattinkara Taluk was included in the Nedumangad Revenue Division consequent to Exts.P3 and P4 orders, as per Ext. R1(a) gazette publication dated 28^th January, 2019, bearing No G.O.(Printing) 13/2019/ Revenue, the Government has included the Neyyattinkara Taluk in Thiruvananthapuram Revenue Division. Thus, it can be seen that virtually the contentions put forth by the petitioners against Exts. P3 and P4 bifurcating Neyyattinkara Taluk from Thiruvananthapuram Revenue Division and including it in the Nedumangad Revenue Division is reversed by the Government consequent to the protest raised by the people of the Neyyattinkara Taluk. Even though the petitioners have raised a contention with respect to the inclusion of the Kattakada Taluk, it is quite clear and obvious that none of the people of Kattakada Taluk have come forward raising objections due to the inclusion of the Kattakada Taluk within the Revenue Division of Nedumangad. Therefore, it can be seen that consequent to the Gazette publication- Ext. R1(a), the Government has satisfied the requirements as are sought for by the petitioners in regard to Neyyattinkara Taluk. However, the learned counsel for the petitioners submitted that the people of Neyyattinkara have formed a samithi and was fighting for the formation of a district including Neyyattinkara and Kattakada Taluk and therefore, still the grievance

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of the petitioners is existing and therefore, the writ petition cannot be said to be infructuous in any manner. It was also pointed out that the State Government is duty bound to bring in a legislation in regard to the formation of Revenue Divisions, and without ascertaining the convenience and other requirements of the people residing in the Taluks, the Government is not at liberty to bifurcate a Taluk from its original existence. It was also pointed out that it is imperative that a new Revenue Division is formed, including Neyyattinkara and Kattakada Taluks, taking into account its peculiar terrain and the long distance the residents of the aforesaid Taluks have to travel even to reach the Revenue Division of Thiruvananthapuram, to meet up with their requirements, and for ventilating their grievances before various statutory authorities.

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We have heard, learned counsel for the petitioners Sri. R.T Pradeep, learned Special Government Pleader to the Additional Advocate General Sri. S. Renjith, and perused the pleadings and materials on record.

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The discussion of facts made above would make it clear that the contentions advanced in the writ petition are basically the legality and correctness of Exhibits P3 and P4 order and notification respectively issued by the State Government bifurcating the Neyyattinkara and Kattakada Taluks from the existing

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Thiruvananthapuram Revenue Division and including those two Taluks in the newly formed Revenue Division Nedumangad. The grievances highlighted by the petitioners in the writ petition would show that consequent to the inclusion of the said two Taluks in Nedumangad Revenue Division, the people of those two Taluks are put to various and innumerable difficulties and inconveniences, especially due to the fact that they may have to travel more than 20 kms more to reach the new Revenue Division. Anyhow, the contentions advanced by the petitioners in respect of the inclusion of the Neyyattinkara Taluk in the Nedumangad Revenue Division has virtually become redundant and inconsequential consequent to Ext. R1(a) gazette publication issued by the State Government dated 28^th January, 2019, re-including Neyyattinkara Taluk in Thiruvananthapuram Revenue Division. But, according to the learned counsel, grievances of the petitioners still subsist.

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The learned counsel for the petitioners Sri. R.T. Pradeep has invited our attention to the judgment of the Apex Court in J.R. Raghupathy v. State of A.P. and others [AIR 1988 S 1681] in regard to the formation of the location of Mandal headquarters in the State of Andhra Pradesh under Section 3(5) of the Andhra Pradesh Districts (Formation) Act, 1974. Relying upon the said judgment, the learned counsel for the petitioners contended that the Kerala State has

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failed to introduce any such legislation which they are duty bound to do as per Entry 45 of List II of Schedule VII of Constitution of India.

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In Secretary A.P.D Jain Pathshala and others v. Shivaji

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Bhagwat More and others [(2011) 13 SCC 99], it was held that the power of the State to exercise executive powers on a par with the legislative powers of the legislature, is "subject to the provisions of the Constitution". It was also held that if the power to constitute and create judicial Tribunals by executive orders is recognized, there is every likelihood of Tribunals being created without appropriate provisions in regard to their constitution, functions, powers, appeals, revisions, and enforceability of their orders, leading to chaos and confusion.

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However, fact remains, the said aspect was considered by the Apex Court taking into account Articles 233, 234 and 247 of the Constitution of India, dealing with constitution of subordinate courts, and Articles 323A and 323B for constituting Tribunals by law made by the legislature, by which it was made clear that judicial Tribunals shall be created only by statutes or rules framed under authority granted by the Constitution. In our considered opinion, the aforementioned Judgments are having not even a remote connection in regard to the question to be decided in the case on hand.

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Similarly, the learned counsel for the petitioners has relied upon

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the judgment of the Apex Court in P.H. Paul Manoj Pandan v. P. Veldurai [(2011) 5 SCC 214] wherein also, the Apex Court considered as to the manner in which the power under Article 162 of the Constitution of India is to be exercised by the State Government. But, fact remains the Apex Court clearly specified that once a law occupies a particular field, it will not be open to the State Government, in exercise of its executive power under Article 162 of the Constitution, to prescribe in the same field, by an executive order. But, at the same time, it was found that it is well recognized that in matters relating to a particular subject, in the absence of any parliamentary legislation on the said subject, the State Government has the jurisdiction to act and to make executive orders and further that the executive power of the State would, in the absence of legislation, extend to making rules or orders regulating the action of the executive. However, such orders cannot offend the provisions of the Constitution and should not be repugnant to any enactment of the appropriate legislature.

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On the other hand, the learned Special Government Pleader Sri. S. Renjith has invited our attention to the judgment of a Division Bench of this Court in Madhusoodanan Nair v. Governor of Kerala & others [1983 KLT 43], in which the question considered was in respect of creation of a new District by an executive order and it was held that any citizen of a State can challenge it. However, while dealing

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with the interference that can be made in the orders passed by the State Government exercising the powers under Articles 154 and 162 of the Constitution of India, it was held, the said power cannot be interfered with by any other statutory provisions contained under the Board of Revenue Act.

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We have evaluated the rival submissions made across the Bar. The short question to be considered is whether any interference can be made by a writ court in the power exercised by the State Government in absentia of any legislation to form a new Revenue Division.

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The contention advanced by the learned counsel for the petitioners is that before making any new Revenue Division, the State Government has to discuss with the public to identify as to whether any inconvenience would be caused to them. In our considered opinion, when the State Government has formed a new Revenue Division, we can only be presumed that whatever requirements of law that were to be done were done by the Government, and therefore it was for the petitioners to establish before this Court that no such efforts were made by the Government before the formation of the new Revenue Division.

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As we have pointed out above, the petitioners cannot have

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much grievance consequent to the formation of the Nedumangad Revenue Division now consequent to the re-inclusion of the Neyyattinkara Taluk in the existing Thiruvananthapuram Revenue Division. However, since the petitioners have contended that the Government has not conducted any study in respect of the formation of the new Revenue Division, we directed the learned Special Government Pleader to produce the files in regard to the formation of the Revenue Division. From the files, it is clear that it was on the basis of a report dated 20.12.2016 of the Land Revenue Commissioner that a new Revenue Division was formed. In fact, it is clear from the said report that the Revenue Minister, in the meeting held on 5^th September, 2016, directed the District Collector, Thiruvananthapuram to submit a report and it is apparent from the report of the Land Revenue Commissioner that the District Collector has submitted a detailed report stating that since there are villages and Taluks numbering 124 and 6 respectively in the Thiruvananthapuram Revenue Division, it is difficult to deal with the problems of the residents of the villages and Taluks in an effective manner, and consequent to which the Revenue Divisional authority dealing with the statutory functions under various enactments were finding it difficult to manage the issues projected before the Revenue Division in a fruitful and effective manner. It was accordingly that the decision was taken to form a new

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Revenue Division, including the Neyyattinkara, and Kattakkada Taluks. It is also clear from the said report that the aspects with respect to the public transport etc. were all taken into consideration and it was on the basis of the said report that the State Government has decided to form a new Revenue Division.

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Therefore, the contention advanced by the petitioners that the power conferred under Article 162 was exercised by the State Government without making an adequate study can never be said to be a correct approach of the petitioners to the issue. That apart, it further reveals that, during the pendency of the writ petition, based on the representation submitted, by a Member of the legislative assembly Sri. K. Ansalan, the Member of Parliament from Thiruvananthapuram Constituency Shri. Shashi Tharoor, the Neyyattinkara District Formation Samithi in which the petitioners are office bearers and various political parties before the State Government to re-include Neyyattinkara Taluk in Thiruvananthapuram Revenue Division only the State Government has decided to issue Ext. R1(a) gazette notification reincluding the Neyyattinkara Taluk in Thiruvananthapuram Revenue Division.

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In fact, Ext. P3 order was passed by the Government on 06.02.2018 forming the new Revenue Division of Nedumangad along

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with other Revenue Divisions in the State of Kerala and appointing necessary and requisite staff to man the new Revenue Division. Ext. P4 issued by the State Government dated 6th March, 2018 is a decision taken in regard to the inclusion of Taluks in the new Nedumangad Revenue Division. Since the Neyyattinkara Taluk is already removed from the said new Revenue Division, the petitioners cannot be said to have any grievance at all, especially due to the fact that the file verified by us reveals that it was due to the request of the petitioners also the Neyyattinkara Taluk was reincluded in the Thiruvananthapuram Revenue Division.

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Taking into account all the above aspects, we are of the considered opinion that in absentia of any specific statute for the purpose of making the Revenue Division, the State Government was vested with ample powers under Article 162 of the Constitution of India r/w Article 154 to issue an executive order to form a Revenue Division. Article 154 deals with executive power of the State, which shall be vested in the Government and is entitled to be exercised by the Governor, either directly or through officers subordinate to him, in accordance with the Constitution. However, it is made clear that the power conferred under Article 154 cannot be deemed to be transferred to the Governor any functions conferred by any existing law on any other authority; or prevent Parliament or the Legislature of the State

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from conferring by law functions on any authority subordinate to the Governor.

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Article 162 of the Constitution of India makes it clear that it can be exercised only subject to the provisions of the Constitution. However, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make any laws, however, subject to the provisions contained thereunder, which specifies that in any matter with respect to which the legislature of a State and the Parliament have power to make any laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof.

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Therefore, the nature of the executive power vested in the Government under Article 162 of the Constitution of India is so vivid and clear that it is circumscribed only to the extent of making an executive order in supersession of the law made by the Parliament. Which thus means, when a power is granted to the State Government with clear and precise way in which it is to be executed under Article 162 of Constitution of India and the extent to which it can exercise the executive power, unless and until it is established by the petitioners that the executive power exercised by the State Government is

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supervening any law made by the Parliament, they are not entitled to succeed in the writ petition. We are also of the view that, merely for the reason a power is vested with the State Government to make laws, this court cannot compel the Government to legislate because, if we do so, we would be overstepping ourselves into the domain of the legislature, which would be nothing but an antithesis to the mandates of the Constitution .

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Needless to say, we could not locate any patent illegality or arbitrariness or other legal infirmities on the part of the State Government in the formation of the new Revenue Division exercising its executive power under Articles 154 and 162 of the Constitution of India.

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Writ petition fails and accordingly, it is dismissed.

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Registry is directed to return the files handed over by the office of the Additional Advocate General to the office of the Additional Advocate General after securing requisite acknowledgment.

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sd/- S. MANIKUMAR, CHIEF JUSTICE.

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sd/- SHAJI P. CHALY, JUDGE.

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PETITIONERS' EXHIBITS:

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EXHIBIT-P1:	TRUE COPY OF THE REPRESENTATION DATED 11.10.2017 BEFORE THE REVENUE MINISTER.
EXHIBIT-P1(a):	TRUE ENGLISH TRANSLATION OF EXHIBIT-P1.
EXHIBIT-P2:	TRUE COPY OF THE REPLY DATED 23.11.2017 BY GOVERNMENT.
EXHIBIT-P2(a):	TRUE ENGLISH TRANSLATION OF EXHIBIT-P2.
EXHIBIT-P3:	TRUE COPY OF THE G.O.(K) NO.45/2018/REV.DATED 6.2.2018 BY WHICH NEDUMANGADU REVENUE DIVISION WAS CONSTITUTED BY GOVERNMENT ALONG WITH 5 OTHER REVENUE DIVISIONS IN KERALA.
EXHIBIT-P3(a):	TRUE ENGLISH TRANSLATION OF EXHIBIT-P3.
EXHIBIT-P4:	TRUE COPY OF G.O.(P) NO.10/2018 REV. DATED 5.3.2018.
EXHIBIT-P4(a):	TRUE ENGLISH TRANSLATION OF EXHIBIT-P4.
EXHIBIT-P5:	TRUE COPY OF THE MAP OF THIRUVANANTHAPURAM DISTRICT SEGREGATING THE 14TH ASSEMBLY CONSTITUENCIES IT HOUSES, WHICH GIVE AN INSIGNIA OF GEOGRAPHICAL LOCATION OF TALUKS.
EXHIBIT-P6:	TRUE COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA MANORAMA DAILY ON 1.05.2018.
EXHIBIT-P6(a):	TRUE ENGLISH TRANSLATION OF EXHIBIT-P6.
EXHIBIT-P7:	TRUE COPY OF NEWS ITEM PUBLISHED IN MATHRUBHUMI DAILY ON 01.05.2018.
EXHIBIT-P7(a):	TRUE ENGLISH TRANSLATION OF EXHIBIT-P7.

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RESPONDENTS' EXHIBITS: NIL

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/True Copy/

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PS To Judge.

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Padmasree P.Gopinathan Nair v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Padmasree P.Gopinathan Nair v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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