Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 92 (KER)

Iqbal S. v. State of Kerala

2019-01-28

ALEXANDER THOMAS

body2019
JUDGMENT : The prayers in the above Writ Petition (Civil) are as follows:" i. Call for the records leading to Exhibit P8 from the 4th respondent and to quash the original of the same by the issuance of a writ in the nature of Certiorari; ii. Issue a writ in the nature of Mandamus or any other appropriate writ, order or direction commanding the 4th respondent to restore the Patta No.LA-59/12/C1 issued by the 4th respondent and cancelled as per Exhibit P8 proceedings; iii. Declare that petitioners are entitled to get assignment of 4.12 ares of land in re-sy No.328/11 in Block No.43 of Kottukkal Village in which petitioners along with aged mother and two daughters are residing; iv. Allow such other and further relief’s as this Hon'ble Court find deem fit to in the nature and circumstances of the case; and v. Allow this Writ Petition (Civil) with the petitioners cost. " 2. Heard Sri. Anchal C. Vijayan, learned counsel appearing for the petitioners and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. The petitioners are spouses residing with the 1st petitioner's mother who is now aged more than 80 years and the two daughters of the petitioners who are now 18 years and 15 years respectively in a small house constructed in a land having an extent of 4.12 ares comprised in Re.Sy.No.328/11 in Block No.43 of Kottukkal Village, Kottarakkara Taluk, Kollam Revenue District. That the said land having an extent of 4.12 ares in Re.Sy.No.328/11 was assigned to both the petitioners as per Ext.P-5 patta dated 21.2.2017 issued by the 4th respondent Tahsildar, Kottarakkara and the said land was in occupation and possession of the 1st petitioner’s mother from the year 1965 onwards, it is averred. After the grant of patta as per Ext.P-5 the property was mutated in the name and basic land tax was also been remitted by the petitioners in respect of the said property covered by Ext.P-6 receipt. Now the 4th respondent Tahsildar has issued the impugned Ext.P-8 proceedings dated 28.12.2018 unilaterally cancelling the Ext.P-5 patta granted in favour of the petitioners without affording any reasonable opportunity of being heard to the petitioners, based on the directions issued by the 2nd respondent District Collector as per letter dated 24.11.2018 referred to in Ext.P-8 which has directed the 4th respondent Tahsildar to cancel Ext.P-5 patta. It appears that pursuant to the said letter dated 24.11.2018 issued by the 2nd respondent District Collector, whereby he had directed the 4th respondent Tahsildar to cancel Ext.P-5 patta, the 4th respondent has issued Ext.P-7 notice dated 11.12.2018 calling upon the petitioners to produce the original of the patta and thereafter the 4th respondent has cancelled the Ext.P-5 patta as per the impugned Ext.P-8 proceedings dated 28.12.2018. It appears that the grounds raised by the respondents 2 & 4 for cancelling Ext.P-5 patta is that before the formal issuance of Ext.P-5 patta dated 21.2.2017, the petitioners have purchased another piece of land coming to an extent of 32.09 ares and therefore the grant of land assignment in favour of the petitioners in respect of the subject property having an extent of 4.12 ares as per Ext.P-5 patta is illegal and improper etc. 4. Per contra the contention of the petitioners is that even much prior to the issuance of Ext.P-5 patta dated 21.2.2017, the Government has amended the provisions of the land assignment rules as per notification issued on the basis of G.O.(P) No.425/2014/Rd dated 30.9.2014, whereby the applicant for land assignment is eligible to get 1 acre of occupied land by way of assignment and that in the case of the petitioners, the assigned land is only 4.12 ares which was in the occupation and possession of the 1st petitioner's mother. 5. Without getting into the merits of the controversy, it is seen that the 4th respondent Tahsildar has primarily issued impugned Ext.P-8 patta cancellation order on the basis of the directions issued by the 2nd respondent Collector as per his letter No.L1-64711/18 dated 24.11.2018 whereby the 2nd respondent has directed the 4th respondent to cancel the patta of the petitioners. There does not appear to be any dispute that the 2nd respondent District Collector has not afforded any reasonable opportunity being heard to the petitioners before he had taken the impugned decision as referred to in his letter dated 24.11.2018 as referred to in Ext.P-8. It is primarily on the basis of the said directives issued by the 2nd respondent District Collector as per his letter dated 24.11.2018, that the 4th respondent Tahsildar has issued the impugned Ext.P-8 proceedings. True that the petitioners were issued Ext.P-7 notice dated 11.12.2018 by the 4th respondent Tahsildar, wherein they were only directed to produce the original of the patta. True that the petitioners were issued Ext.P-7 notice dated 11.12.2018 by the 4th respondent Tahsildar, wherein they were only directed to produce the original of the patta. Therefore it can be seen that the 4th respondent was bound by the above said directions of the 2nd respondent District Collector who is his superior and therefore he had no discretion whatsoever to take an independent decision as to whether or not the patta granted to the petitioners should be cancelled, etc. Hence it is clear that the impugned decision making process is vitiated on account of the dictation imposed by the 2nd respondent which has restricted and fettered the discretion of the 4th respondent Tahsidar who has issued the impugned Ext.P-8 patta cancelling proceedings. That apart except for issuing Ext.P-7 notice which only called upon the petitioners to produce the original of Ext.P-5 patta, the petitioners have not been heard even by the 4th respondent Tahsildar on the merits of the controversy. Moreover, the 2nd respondent is the revisional authority under Rule 21 of the Kerala Land Assignment Rules, 1964, for considering the challenge against an order of cancellation of patta as per Ext.P-8. So, the valuable statutory right of the affected party to seek revision becomes meaningless and futile, if the dictation of the 2nd respondent is not interdicted. Therefore it is only to be ordered and declared that impugned decision of the Collector as referred to as letter No.L1-64711/18 dated 24.11.2018 as referred to in Ext.P-8 as well as the consequential patta cancellation order as per Ext.P-8 proceedings dated 28.12.2018 issued by the 4th respondent Tahsildar will stand set aside. 6. The letter dated 24.11.2018 of the 2nd respondent District Collector as referred to in Ext.P-8 may be only seen as a request made by the 2nd respondent Collector in exercise of his revisional authority calling upon the 4th respondent Tahsildar as the patta cancellation authority to examine the matter so as to take an independent decision in the matter after granting reasonable opportunity of being heard to the petitioners. Accordingly it is ordered that the matter will stand remitted to the 4th respondent Tahsildar for consideration afresh. Accordingly it is ordered that the matter will stand remitted to the 4th respondent Tahsildar for consideration afresh. The 4th respondent Tahsildar will issue a show cause notice stating the proposed and provisional grounds of cancellation so as to call upon the petitioners to show cause as to why the Ext.P-5 patta shall not be cancelled for the proposed grounds enumerated therein. This may be done by the 4th respondent Tahsildar without much delay, preferably within a period of 1 month from the date notified for receiving a certified copy of this judgment. Thereafter the petitioners may give their replies/written objections thereto delineating their grounds and the 4th respondent Tahsildar will afford a reasonable opportunity of being heard to the petitioners through authorised representative/counsel if any and then will take a considered decision in the issue without much delay preferably within a period of 3 months from the date of issuance of the said show cause notice. 7. In the above process, the above said contention of the petitioners that going by the amended provisions of Rule 5 as it stood even prior to the issuance of Ext.P-5 patta, the persons like the petitioners are eligible and entitled for grant of even upto 1 acre of occupied land and in the instant case, the grant was only for 4.12 ares of occupied land of the 1st petitioner's mother and that therefore there is no illegality or impropriety in Ext.P-5 grant even though the petitioners have acquired property having an extent of 32.09 ares prior thereto etc, should be seriously considered by the 4th respondent. Those aspects of the matter should be considered and evaluated meticulously by the 4th respondent with reference to the factual situation as well as the rules concerned etc. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.