Remanded

Nisar Rahim v. the District Collector

Kerala HC21 Jan 2022WP(C)/1691/2021

Case brief

AI extract

What is this about?

In a writ petition, the Court directed the Additional District Magistrate to expeditiously conclude pending land ceiling proceedings against the petitioner. If not completed within two months (later modified to two weeks due to a stay order), an NOC for quarrying activities must be granted.

What did the court decide?

The Additional District Magistrate directed to complete land ceiling proceedings within two weeks; if not completed, issue the requested NOC within one week thereafter.

Nisar Rahim Vs the District Collector — Property and Title | Kerala HC (2022)

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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 DEVAN RAMACHANDRAN

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FRIDAY, THE 21^ST DAY OF JANUARY 2022 / 1ST MAGHA, 1943

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WP(C) NO. 1691 OF 2021

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PETITIONER:

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NISAR RAHIM AGED 57 YEARS S/O.RAHIM, VETTIKKAL, ERATTUPETTA, NADACKAL, KOTTAYAM-686 121.

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BY ADVS. IMAM GRIGORIOS KARAT SRI.N.KRISHNA PRASAD SRI.N.ANAND SMT.YOGAMAYA M.G

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR KOTTAYAM-KUMILY ROAD, COLLECTORATE, KOTTAYAM-686 001.

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2 THE ADDITIONAL DISTRICT MAGISTRATE DISTRICT COLLECTORATE, KOTTAYAM-686 001.

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3 THE TAHSILDAR MEENACHIL TALUK, MINI CIVIL STATION, GROUND FLOOR, PALA RAMAPURAM ROAD, KOTTAYAM-686 577.

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4 DR.K.M.AURIF AGED 67 YEARS S/O. NEERANNAN, KATHOLIL GARDENS, CHETTUTHODU P.O., VARIYANIKKAD RODA, PINNAKKANAD, KOTTAYAM DISTRICT686 508.

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5 NASEEMA AGED 64 YEARS W/O. DR.K.M. AURIF, KATHOLIL GARDENS, CHETTUTHODU P.O, VARIYANIKKAD RODA, PINNAKKANAD, KOTTAYAM DISTRICT-686 508.

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BY ADVS. GOVERNMENT PLEADER – SMT RESMI THOMAS SRI.P.A.SALIM

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 1691 OF 2021 2

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JUDGMENT

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The petitioner says that he is in possession of the properties involved in this case, which is evident from Ext.P1 issued on 18.09.2018 by the

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Village Officer, Kondoor. He says that he has also obtained Ext.P2 consent letter from respondents 4 and 5 to carry on quarrying activities in the above lands and that he applied for a No Objection Certificate (NOC) from the District Medical Officer, Kottayam, which was acceded to through Ext.P3. He says that, thereafter, an Environmental Clearance (EC) has also been obtained from the State Environment Impact Assessment Authority (SEIAA), a copy of which has been placed on record as Ext.P5; and that he has followed it up by obtaining Ext.P4 from the Deputy Chief Controller of Explosives, Ernakulam, along with Ext.P6 NOC from the Fire and Rescue Services.

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The petitioner says that, as per Rule 105 of

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the Explosive Rules, 2008, he is obligated to obtain an NOC from the District Magistrate which he applied

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for, based on which, a report was called by the

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WP(C) NO. 1691 OF 2021 3

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Additional District Magistrate from the Tahsildar

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which led to Ext.P7 communication recommending its grant holding that petitioner is not in possession of excess of any exempted lands. He says that, however, in spite of all these, since no steps were taken by the District Magistrate to finalize his application for NOC, he approached this Court and obtained Ext.P8

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judgment. He says that, however, even then the competent Authority has refused to grant him NOC,

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merely saying that a suo motu ceiling case has been registered against the property, under the provisions of the Kerala Land Reforms Act (KLR Act for short).

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The petitioner contends that the reason

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stated by the Additional District Magistrate, in

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Ext.P11, rejecting his application for NOC merely because a suo motu proceedings is pending under the provisions of the KLR Act is illegal and unlawful,

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since it will not disentitle him from using the

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property as is legally permissible. He, therefore,

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prays that Ext.P11 be set aside and the competent

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Authority be directed to issue him an NOC under the

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WP(C) NO. 1691 OF 2021 4

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Explosive Rules without any further delay.

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The afore submissions of Shri.N.Anand -

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learned counsel for the petitioner, were answered by

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Smt.Resmi Thomas - learned Government Pleader, saying

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that, as has been stated in Ext.P11, it is on account of the non co-operation of the petitioner in not furnishing a statement under Section 85(6) of the KLR Act that suo motu action against him is still continuing. She vehemently argued that since Section 85(6) of the said Act gives liberty to the petitioner to make an option with respect to the land to be surrendered, he could have done so, leading to the

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ceiling case against him completed without any

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avoidable delay. She contended that, however, as long

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as the suo motu action is underway, it would not be

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justified for the petitioner to seek an NOC with

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respect to the property covered by it. She,

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therefore, prayed that this writ petition be dismissed.

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Shri.P.A.Salim, learned counsel appearing for

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respondents 4 and 5, submitted that the land ceiling

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WP(C) NO. 1691 OF 2021 5

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case initiated against his clients is without basis and is a malafide exercise of power. He submitted that they, therefore, intend to challenge the said proceedings appropriately, including before this Court and prayed that such liberty be offered to them.

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When I assess the afore rival submissions, it is without doubt that the sole reason why the 2^nd respondent has issued Ext.P11 is because a suo motu ceiling case has been registered against the property in question, under the provisions of the KLR Act. However, it is expressly conceded that said proceedings are still pending and not yet finalized. Pertinently, the stand of the official respondents is that if the petitioner had given an option for surrender of land under Section 85(6) of the KLR Act, said proceedings could have been completed quickly, but this can only mean that they are trying to put the blame for the delay in finalization of the said proceedings on the petitioner.

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This is more so because it is only if the

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WP(C) NO. 1691 OF 2021 6

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proceedings are to conclude that the petitioner is in

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possession of excess land, will a question of

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exercising an option under Section 85(6) of the KLR act apply; and therefore, it will be unjust for the

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official respondents to demand that he make such an option even when, admittedly, the proceedings before the Taluk Land Board is pending.

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That said, since the land ceiling case is

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still pending, I am sure that a balance of the rival interests will have to be obtained, so that there

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will be no prejudice to either side on account of the pendancy of the said matter.

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Resultantly, I order this writ petition, with

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liberty being reserved to the competent Taluk Land

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Board to complete proceedings with respect to the petitioner and the property in question, after

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following due procedure as expeditiously as is

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possible.

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If the afore proceedings are not completed within a period of two months from the date of receipt of a copy of this judgment, then the 2^nd respondent –

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WP(C) NO. 1691 OF 2021 7

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Additional District Magistrate, will be enjoined to grant the petitioner an appropriate NOC, as applied for by him, de hors Ext.P11, within a period of one week after the expiry of the afore period.

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Needless to say, even if the petitioner is so granted with an NOC, in the event should the Taluk Land Board is eventually find against him, he will be bound by the same, subject to his statutory remedies; and I clarify that the afore directions will not offer him any special right – either in equity or in law - at that time.

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I make it further clear that if the land ceiling proceedings are not completed within the afore time, either because respondents 4 and 5 have challenged it or for any other reason, the directions with respect to the issuance of NOC will continue to operate and

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will be subject to the final result of the land ceiling proceedings.

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TO BE SPOKEN TO ON 25.01.2022

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This matter has been listed today for being 'To

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WP(C) NO. 1691 OF 2021 8

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be spoken to' as requested by Sri.N.Anand, learned

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counsel for the petitioner. He submitted that, at the

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time when the judgment was delivered, he was not

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aware that the ceiling proceedings had been stayed by this Court in O.P.(C)No.1979/2021. He handed over a

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copy of the said order across the Bar for my perusal.

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When I go through the order issued by this

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Court, it is luculent that the ceiling case remains stayed.

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Obviously, therefore, the directions in the

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judgment will require to be modified.

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I, hence, clarify that since the ceiling case

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had been stayed, the direction in the judgment - to

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issue the certificate within a period of two months - will stand modified and same shall be done within a period of two weeks from the date of receipt of a copy of this judgment.

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However, all other directions in the judgment will remain unaltered.

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Sd/-

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DEVAN RAMACHANDRAN JUDGE

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MC/22.1

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WP(C) NO. 1691 OF 2021 9

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APPENDIX OF WP(C) 1691/2021

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PETITIONER EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE POSSESSION CERTIFICATE DATED 18.9.2018 ISSUED BY THE VILLAGE OFFICER, KONDOOR SHOWING THE LANDS IN POSSESSION OF 4TH RESPONDENT.
EXHIBIT P2	TRUE COPY OF THE CONSENT LETTER DATED 3.4.2018 EXECUTED BY 4TH RESPONDENT AND 5TH RESPONDENT.
EXHIBIT P3	TRUE COY OF THE NO OBJECTION CERTIFICATE DATED 18.5.2018 ISSUED BY THE DISTRICT MEDICAL OFFICER, KOTTAYAM.
EXHIBIT P4	TRUE COPY OF THE APPROVAL DATED 15.5.2018 ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM.
EXHIBIT P5	TRUE COPY OF THE ENVIRONMENT CLEARANCE DATED 3.10.2019 ISSUED BY THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, THIRUVANANTHAPURAM.
EXHIBIT P6	TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, KOTTAYAM DATED 26.4.2018.
EXHIBIT P7	TRUE COPY OF THE COMMUNICATION DATED 3.7.2019 ISSUED BY RESPONDENT NO.3 TO RESPONDENT NO.2.
EXHIBIT P8	TRUE COPY OF THE JUDGMENT DATED 18.8.2020 PASSED BY THIS HON'BLE COURT IN WPC NO.15667 OF 2020.
EXHIBIT P9	TRUE COPY OF THE COMMUNICATION FROM FOURTH RESPONDENT TO FIRST RESPONDENT DATED 24.9.2020.
EXHIBIT P10	TRUE COPY OF THE REPRESENTATION DATED 16.7.2020 ADDRESSED BY RESPONDENT NO.5 TO RESPONDENT NO.1.

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WP(C) NO. 1691 OF 2021 10 EXHIBIT P11 TRUE COPY OF THE ORDER DATED 14.12.2020 ISSUED BY RESPONDENT NO.2. EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 11.7.2018 PASSED IN THIS HON'BLE COURT IN WRIT PETITION NO.32052 OF 2017.

Nisar Rahim v. the District Collector

Case brief

What is this about?

What did the court decide?

Nisar Rahim v. the District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

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