MARTIN JOSEPH v. THE DISTRICT COLLECTOR
Case at a glance
Outcome
Set aside
P14 order is set aside with a consequential direction to
Provisions considered
- Kerala Land Tax Act s. 18
Key paragraphs
- Para 55. Heard the learned counsel appearing on both sides, Petitioners would submit that in Ext.P8 counter affidavit filed by the 3rd respondent in W.P.(C) No.18528 of 2019 there was a specific finding that the area of proposed petroleum bunk will come within old survey no.851/2…
Judgment
mistake. This Court disposed of the writ petition as per Ext.P9 judgment dated 10.12.2019 directing the District Collector to consider the issue as to whether the nature of the property of the 3rd respondent is paddy land. In the light of Ext.P9 judgment, Ext.P10 notice was issued by the District Collector to all parties concerned to file their objection in correcting the mistake in the re-survey. While so, the Additional District Magistrate WP(C) No.16606 of 2022 4 rejected the application filed by the Deputy General Manager, Indian Oil Corporation for no objection certificate to establish petrol bunk in the subject property of the 3rd respondent which was reserved for SC/ST community and allotted to one Vysakh Sreekumar. 3rd respondent filed W.P. (C) No.16318 of 2020 in connection with rejection of application for no objection certificate to establish petroleum and diesel distribution centre and the said Vysakh Sreekumar, who was the allottee of the petrol bunk under SC/ST quota also filed W.P(C) No.17184 of 2020 and both the writ petitions were heard together and disposed of as per Ext.P11 common judgment directing the Additional District Magistrate to reconsider the application filed by the Deputy General Manager, Indian Oil Corporation.
In Ext.P11 this Court has also observed that the issue must be decided by the Additional District Magistrate taking into consideration the dictum laid down in Indira P.S. and others v. Sub Collector of Fort Kochi and others, 2020 (4) KHC 33 and the judgment in Reliance Industries Ltd.and others v. The Commissioner of Land Revenue, 2007 (2) KLT 850. The Additional District Magistrate thereafter rejected the application submitted for issuance of no objection certificate as per Ext.P12. Challenging Ext.P12 a contempt of court case was filed as Cont. Case (C) No.1186 of 2021. When the matter came up for consideration the learned Government Pleader assured the court that necessary direction will be issued to the District Collector to recall Annexure 3 order, ie., Ext.P12, and pass fresh WP(C) No.16606 of 2022 5 orders in accordance with the direction issued by this Court in Ext.P11 judgment. The said undertaking was recorded as per Ext.P13 order.
As assured in Ext.P13 the Additional District Magistrate recalled Ext.P12 order and also set aside proceedings no.D7-6473/2021 as per Ext.P14 order. The effect of Ext.P14 order is that Ext.P10 notice issued as per the direction in Ext.P9 judgment was cancelled. On the strength of Ext.P14 order when the 3rd respondent attempted to fill up the paddy land with earth and unloading granite stone, petitioners have approached this Court by filing W.P.(C) No.15920 of 2022 and this Court as per Ext.P16 order directed the parties to maintain status quo. It is aggrieved by Ext.P14 order whereby Ext.P10 notice was recalled and the setting aside of proceedings in file no.D7-6473/2021 for correcting the mistake in re-survey, that the present writ petition is filed.
3rd respondent filed a counter affidavit mainly contending that in the BTR the property is shown as purayidam and the property is registered with the Rubber Board and for the re-plantation, the Rubber Board has given subsidy to the petitioners and that for more than 40 years, the property has been cultivated with rubber. The learned counsel for the 3rd respondent relying on the judgment in Indira P.S.‘s case cited supra would submit that what is relevant for consideration is the BTR which is the vital statutory document and the description in the BTR cannot be disturbed merely because in some odd records like the settlement register the description of WP(C) No.16606 of 2022 6 property is shown otherwise. It is further submitted that this Court in Ext.P11 judgment has directed the authorities to consider the issue in the light of Indira P.S.‘s case cited supra and therefore the rejection as per Ext.P12 order for grant of no objection certificate was in violation of the directions in Ext.P11 judgment and that is why this Court has interfered in the matter in contempt case and that the learned Senior Government Pleader had informed the court that the order will be recalled so as to avoid contempt of court proceedings. It is further contended that in view of the interim order dated 07.04.2022 issued in the Cont. Case (C) No.1186 of 2021 Ext.R3(d) no objection certificate was also issued to the Deputy General Manager by the Additional District Magistrate. A perusal of Ext.R3(d) would reveal that the no objection certificate has been issued as per the direction issued by this Court in the Cont. Case (C) No.1186 of 2021 dated 07.04.2022.
A reply affidavit has been filed by the petitioners wherein it is submitted that a writ appeal was filed challenging the interim order dated
07.04.2022 in Cont. Case (C) No.1186 of 2021. Though the writ appeal was not accepted to file, in Ext.P17 judgment in the appeal it is observed that the withdrawal of an order at the behest of the authority who passed the order would give rise to a fresh cause of action and further observed that all remedies available to the party who is prejudiced by such withdrawal to approach the appropriate authority in appropriate proceedings is left open. Even though no objection certificate was issued by the Additional District WP(C) No.16606 of 2022 7 Magistrate as per the order in the contempt case, W.P(C) No.20473 of 2022 was filed by the petitioners and this Court as per Ext.P19 order stayed the operation of the no objection certificate granted. Petitioners would further submit that the said writ petition filed as W.P.(C) No.20473 of 2022 was later disposed of by this Court as per Ext.P21 judgment whereby the no objection certificate granted was set aside with a consequential direction to reconsider the matter after affording an opportunity of being heard to the petitioners and the 3rd respondent and any other affected parties.
Heard the learned counsel appearing on both sides, Petitioners would submit that in Ext.P8 counter affidavit filed by the 3rd respondent in W.P.(C) No.18528 of 2019 there was a specific finding that the area of proposed petroleum bunk will come within old survey no.851/2, which is recorded as wetland in the settlement register and that the matter was sent to the survey authority to examine whether there is any re-survey and on receiving the report of the survey authorities in this regard necessary steps will be taken to correct the revenue records after following the due procedures of law. Paragraph 7 of Ext.P8 counter affidavit reads as follows: “7. The Taluk Surveyor reported that 3.0820 hectares of property comprised in Resy. No.169/23 in block No.80 of Meenachil Village is recorded as dry land as per Basic Tax Register. He reported also that this property is lying now physically also as dry land.
He reported also that 06.71 Acres of property in old Survey No.870/6 which is recorded as dry land and 95 cents of property in old Survey No.851/2 which is WP(C) No.16606 of 2022 8 recorded as wet land came together in Resy. No.169/23 having an extent of 03.0820 Hectares. After examination with old survey records, the Taluk Surveyor reported that the area of proposed bunk (14.68 Ares) will come in the area which was comprised in old Survey No.851/2 which was recorded as wet land in the settlement register. Therefore this matter is sent to the survey authorities to examine whether there is any Resurvey mistake. On receiving the report of the survey authorities in this regard necessary steps will be taken to correct the relevant records after following due procedure of law.” Based on the same, Ext.P9 judgment was issued directing the District Collector to look into these aspects. Pursuant to which Ext.P10 notice was issued to the petitioners as well as the 3rd respondent.
After issuance of Ext.P10 notice for correcting the mistakes in the resurvey, the application for issuance of no objection certificate was declined by the Additional District Magistrate which was the subject matter of challenge before this Court which culminated in Ext.P11 judgment wherein this Court directed the District Collector to reconsider the issue in the light of the judgments in Indira P.S. and Reliance Industries Ltd.’s cases cited supra. Thereafter again the application for issuance of no objection certificate was rejected by Ext.P12 and pursuant to that Ext.P13 order was passed in the contempt of court case wherein the submission of the learned Senior Government Pleader was recorded. It is seen that by Ext.P14 order all the proceedings for correcting the mistakes if any occurred in the re-survey was recalled and that subsequently as per Ext.R3(d) order no objection certificate was also WP(C) No.16606 of 2022 9 granted for establishment of a petrol bunk solely on the basis of the orders issued by this Court in the Contempt of Court proceedings.
Though an appeal was preferred against the order in the contempt case, the same was rejected as per Ext.P20 order, but there is an observation that any party aggrieved by any of the decision including the decision of withdrawing the earlier orders can approach the authorities concerned to seek for whatever remedies available to him. As regard the issuance of a no objection certificate by the Additional District Magistrate solely based on the orders issued in the contempt of court case, this Court has interfered in a writ petition filed by the petitioners and has set aside the no objection certificate granted as per Ext.P21 judgment with a direction to reconsider the matter afresh. Petitioners on the basis of the same submit that as regard survey which was proposed to be conducted by the authorities as is evident from Ext.P8 counter affidavit has now been recalled as per Ext.P14 order solely on the reason of the order passed by this Court in the contempt of court case.
A perusal of Ext.P10 would reveal that the same is only a notice calling for objection from the parties concerned so as to initiate further proceedings in the matter which has now been recalled by Ext.P14 order which is also issued solely on the order passed in Cont. Case (C) No.1186 of 2021. The no objection certificate is also granted solely based on the order passed in the above contempt case which was interfered by this Court as per Ext.P21 judgment for the reason that though the reports WP(C) No.16606 of 2022 10 referred to in the order were against grant of no objection certificate, the final order granting no objection certificate was solely based on the order passed in the contempt of court case and since the said order granting no objection certificate is issued on total non application of mind and set aside the order and directed reconsideration of the matter after affording an opportunity of being heard to the petitioners.
Operative part
I am of the opinion that the said reasoning will squarely apply in the present case also inasmuch as a perusal of Ext.P14 would reveal that the order has been issued solely based on the order passed in Cont. Case (C) No.1186 of 2021 and there is absolutely no application of mind. In fact a perusal of Ext.P8 counter affidavit would show that even before any direction is issued by this Court, the authorities have taken steps to verify whether there is any mistake in the re-survey and undertook that action will be taken after following the due procedure of law. Ext.P10 is only a notice calling for objection which has now been recalled as per Ext.P14 solely relying on the order in Cont. Case (C) No.1186 of 2021 without any application of mind. Therefore Ext.P14 order is set aside with a consequential direction to the respondents to proceed further with Ext.P10 notice after affording a reasonable opportunity of being heard to the petitioners, 3rd respondent and any other affected parties.
It is made clear that the proceedings pursuant to Ext.P10 notice shall be finalised taking into consideration the decisions of this Court in Indira P.S. and Reliance Industries Ltd.’s cases cited supra. WP(C) No.16606 of 2022 11 A decision in this regard shall be taken within an outer limit of two months from the date of receipt of a copy of the judgment. With the abovesaid directions the writ petition is disposed of. JUDGE Sd/- VIJU ABRAHAM WP(C) No.16606 of 2022 12 APPENDIX OF WP(C) 16606/2022 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 TRUE COPY OF THE LAND TAX RECEIPT DATED 6.6.2019 ISSUED BY THE VILLAGE OFFICER, VILLAGE OFFICE, MEENACHIL. TRUE COPY OF THE B.T.R. ISSUED FROM VILLAGE OFFICE, MEENACHIL. TRUE COPY OF THE RELEVANT PAGE OF SETTLEMENT REGISTER. TRUE COPY OF THE SURVEY PLAN ISSUED FROM THE SURVEY AND LAND RECORDS DEPARTMENT, THIRUVANANTHAPURAM SHOWING THE LIE OF THE PROPERTIES IN SURVEY NO.851/2 BELONGS TO THE 3RD RESPONDENT AND PROPERTY IN SURVEY NO.851/3 BELONGS TO THE PETITIONERS. TRUE COPY OF THE PLAINT IN O.S. NO. 159 OF 2011 BEFORE THE MUNSIFFS COURT, PALA FILED BY THE RESPONDENT DATED 8.7.2011.
TRUE COPY OF THE PLAINT IN O.S. NO.31/2013 BEFORE THE MUNSIFFS COURT, PALA FIIED BY THE 3RD RESPONDENT DATED 28.2.2013. TRUE COPY OF THE APPLICATION DATED 24.6.2019 FILED BEFORE THE 2ND RESPONDENT UNDER SECTION 18 OF THE LAND TAX ACT. TRUE COPY OF THE COUNTER AFFIDAVIT DATED 31.10.2019 FILED BY THE 2ND RESPONDENT HEREIN IN W.P. (C) NO.18528 OF 2019. TRUE COPY OF THE JUDGMENT DATED 10.12.2019 IN W.P. (C) NO. 18528 OF 2019 OF THE HONOURABLE COURT. WP(C) No.16606 of 2022 13 Exhibit P10 Exhibit P11 Exhibit P12 Exhibit P13 Exhibit P14 Exhibit P15 Exhibit P16 Exhibit P17 Exhibit P18 Exhibit P19 TRUE COPY OF THE NOTICE DATED 29.12.2020 ISSUED BY 2ND RESPONDENT TO ALL PARTIES CONCERNED TO FILE OBJECTION IN CORRECTING THE MISTAKE IN RE-SURVEY. TRUE COPY OF THE COMMON JUDGMENT DATED 25.08.2020 IN W.P. (C) NO. 16318 OF 2020 AND W.P. (C) NO.17184 OF 2020 OF THIS HONORABLE COURT. TRUE COPY OF THE ORDER DATED 22.02.2021 BY ADDITIONAL DISTRICT MAGISTRATE KOTTAYAM, 2ND RESPONDENT THEREIN REJECTED THE APPLICATION FILED BY DEPUTY GENERAL MANAGER INDIAN OIL CORPORATION FOR NOC FOR THE 2ND TIME. TRUE COPY OF THE INTERIM ORDER DATED 09.08.2021 IN CONT. CASE(C) NO.1186 OF 2021.
TRUE COPY OF THE PROCEEDINGS NO. D7-6473 2021 DATED 03.09.2021 BY 2ND RESPONDENT RECALLED AND SET ASIDE EXHIBIT-P10 NOTICE. TRUE COPY OF THE ORDER DATED 02.03.2022 IN I.A. NO.1 OF 2021 IN CONT. CASE (C) NO.1186 OF 2021. TRUE COPY OF THE INTERIM ORDER DATED 13.05.2022 IN W.P.(C) NO. 15920 OF 2022 BEFORE THIS HONORABLE COURT. TRUE COPY OF THE JUDGMENT DATED 1.6.2022 IN W.A.NO.736/2022 OF THE HON'BLE HIGH COURT OF KERALA. TRUE COPY OF THE INTERIM ORDER DATED 13.5.2022 IN WPC NO.15920/2022 TRUE COPY OF THE ORDER DATED 23.6.202 IN WPC NO. 20473/2022 Exhibit P20 TRUE COPY OF THE JUDGMENT IN UNNUMBERED WP(C) No.16606 of 2022 14 Exhibit P21 WRIT APPEAL (FILING NO.736/2022) OF THE HON'BLE HIGH COURT OF KERALA TRUE COPY OF THE JUDGMENT DATED 19.10.2022 IN W.P.(C) NO.20473/2022 OF THE HON'BLE HIGH COURT OF KERALA RESPONDENT EXHIBITS Exhibit R 3 a True copy of the letter dated 06.06.2019 by the petitioner Exhibit R 3 b true copy of the said contempt petition dated 09.04.2021 excluding the exhibits Exhibit R 3 c True copy of the order dated 07.04.2022 in Contempt proceedings No. 1186 of 2021 Exhibit R 3 d True copy of the N O C dated 28.05.2022
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: P14 order is set aside with a consequential direction to
Which statutory provisions did this judgment involve?
Kerala Land Tax Act — s. 18.
Which court decided this case, and when?
Kerala High Court, on 04 Jan 2024. The bench was VIJU ABRAHAM.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.