Kerala High Court
Soorya Narayana Bhat vs State Of Kerala on 28 January, 2016
Author: Shaji P. Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY,THE 28TH DAY OF MARCH 2017/7TH CHAITHRA, 1939
WP(C).No. 4511 of 2017 (L)
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PETITIONER(S):
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1. SOORYA NARAYANA BHAT
AGED:56 YEARS, S/O P SHAM BHAT,
PARIKODI HOUSE, KURUDAPADAVU,
PAIVALIKE VILLAGE, KASARGOD DISTICT
2. RAMA MOOLYA
AGED:60 YEARS, S/O KORAGA MOOLYA,
KOMMAGALA HOUSE, KURUDAPADAVU,
PAIVALIKE VILLAGE, KASARGOD DISTICT
3. CHANDRAVATHI
W/O RAMAKRISHNA, KOMMAGALA HOUSE,
KURUDAPADAVU, PAIVALIKE VILLAGE,
KASARGOD DISTICT
4. NARAYANA MOOLYA
AGED:60 YEARS, S/O PUTTA MOOLYA,
KOMMAGALA HOUSE, KURUDAPADAVU,
PAIVALIKE VILLAGE, KASARGOD DISTICT
5. SUNDARA MOOLYA
AGED:56 YEARS, S/O MUNDAPPA MOOLYA,
PARAKODI HOUSE, KURUDAPADAVU,
PAIVALIKE VILLAGE, KASARGOD DISTICT
6. VIMALA
W/O (THE LATE) CHENNAYA POOJARY,
CHIPPAR, KAJE HOUSE, KOLLARAKODI HOUSE,
PAIVALIKE VILLAGE, KASARGOD DISTICT
7. JULIYANA D'SOUZA.
D/O ALBERT D'SOUZA, VETOPADPU HOUSE,
KRUDAPADAVU, PAIVALIKE VILLAGE,
KASARGOD DISTICT
8. NARAYANA MOOLYA
AGED:60 YEARS, S/O KUTTU MOOLYA,
SANTHIYODE, PO KAYYAR,
KASARGOD DISTRICT
WP(C).No. 4511 of 2017 (L)
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9. ABOOBACKER
AGED:49 YEARS, S/O KUNHAMU,
BISMILLA MANZIL, KURUDAPADAVU,
PAIVALIKE VILLAGE, KASARGOD DISTICT
10. PETER SARAVO
PARISH PRIEST, HOLY FAMILY CHURCH KOMMANGALA,
PAIVALIKE VILLAGE, KURUDAPADAVU,
PAIVALIKE VILLAGE, KASARGOD DISTICT
BY ADVS.SRI.SURESH KUMAR KODOTH
SRI.K.P.ANTONY BINU
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF LAND REVENUE, THIRUVANANTHAPURAM
2. DISTRICT COLLECTOR
KASARGOD, VIDYANAGAR POST-671351
3. TAHSILDAR
MANJESWAR TALUK, TALUK OFFICE,
MANJESWAR PO, KASARGOD DISTRICT-671315
4. VILLAGE OFFICER
PAIVALIKE VILLAGE, KURUDAPDAVU PO,
KASARGOD DISTICT-671315
5. VILLAGE OFFICER
MEENJA VILLAGE, KASARGODE DISTRICT-671131
6. VILLAGE OFFICER
CHIPPAR VILLAGE, KURUDAPDAVU PO,
KASARGODE DISTRICT-671313
7. KERALA STAE ELECTRICITY BOARD LTD
THIRUVANANTHAPURAM,
REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR,
THIRUVANANTHAPURAM-695001
R7 BY ADVS. SRI.RAJU JOSEPH (SR.)
SRI.GEORGEKUTTY MATHEW, SC, KSEB
SRI.P.A.AHAMED, SC, KSEB
R1 TO R6 BY SRI.MOHAMMED ANZAR K.J., SPL.G.P. FOR REVENUE
` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28-03-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 4511 of 2017 (L)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF GO(MS) NO. 65/2016/RD DATED 28/1/2016
P2 TRUE COPY OF DOCUMENT NO. 675/1998 DATED 31/3/1998 AND
TRANSLATION
P3 TRUE COPY OF DOCUMENT NO. 681/1998 DATED 31/3/1998 AND
TRANSLATION
P4 TRUE COPY OF LAND TAX RECEIPT DATED 18/6/2015
P5 TRUE COPY OF PATTA DATED 25/6/1986 IN LA 100/84/PAIVALIKE
P6 TRUE COPY OF DOCUMENT NO. 478/07 DATED 18/1/2017 AND
TRANSLATION
P6(A) TRUE COPY OF DOCUMENT NO. 940/1992 DATED 8/35/1992 AND
TRANSLATION
P6(B) TRUE COPY OF DOCUMENT NO. 1063/1995 DATED 2/6/1995
P7 TRUE COPY THE LAND TAX RECEIPTS DATED 2/8/2013
P8 TRUE COPY THE LAND TAX RECEIPTS DATED 2/8/2013
P9 TRUE COPY THE LAND TAX RECEIPTS DATED 2/8/2013
P10 TRUE COPY OF SALE DEED DATED 21/6/1997 DOCUMENT NO.1469/97 OF
SRO MANJESWAR
P11 TRUE COPY THE LAND TAX RECEIPTS DATED 25/8/2015
P12 TRUE COPY OF ORDER IN LA NO. 134/1993/PAIVALIKE
P13 TRUE COPY OF PATTA IN LA NO. 134/1993/PAIVALIKE
P14 TRUE COPY OF TAX RECEIPT DATED 3/3/3026
P15 TUE COPY OF PATTA DATED 27/5/1986 IN LA 100/84/PAIVALIKE
P16 TRUE COPY OF BASIC TAX RECEIPT DATED 22/3/2016
P17 TRUE COPY OF PATTA DATED 4/1994 IN LA NO. 7/89/CHIPPAR
P18 TRUE COPY OF BASIC TAX RECEIPT DATED 18/8/2014
P19 TRUE COPY OF PATTA DATED 15/11/1994 IN LA NO. 134/93/PAIVALIKE
P20 TRUE COPY OF BT RECEIPT ATED 5/5/2015
P21 TRUE COPY OF PATTA DATED 6/3/1996 IN LA NO. 134/93/PAIVALIKE
P22 TRUE COPY O FBT RECEIPT DATED 3/3/2016
WP(C).No. 4511 of 2017 (L)
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P23 TRUE COPY OF SALE DEED DATED 15/9/2008 (DOCUMENT NO. 4557/2006)
P24 TRUE COPY O FBT RECEIPT DATED 1/2/2011
P25 TRUE COPY OF SALE DEED DATED 25/6/2007
P26 TRUE COPY OF LAWYER NOTICE DATED 17/10/2016 ISSUED ON BEHALF
OF FIRST PETITIONER
P27 TRUE COPY REPLY DATED 9/01/2007 ISSUED BY 3RD RESPONDENT
RESPONDENT(S)' EXHIBITS:
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EXT.R7(a): TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 30.8.2015
EXT.R7(b): TRUE COPY OF THE NOTICE
EXT.R7(c): TRUE COPY OF THE LAND HANDOVER SHEET IN RESPECT OF
101.0636 HECTORS IN PAIVALIKE, CHIPPAR AND MEENJA VILLAGES
OF MANJESHWARAM TALUK DATED 28.6.2016
EXT.R7(d): TRUE COPY OF THE HANDOVER SHEET IN RESPECT OF 72.9076
HECTORS OF LAND CATEGORIZED AS ASSIGNED BUT NOT OCCUPIED
IN PAIVALIKE, CHIPPAR AND MEENJA VILLAGES OF MANJESHWARAM
TALUK DATED 29.7.2016
//TRUE COPY//
P.A. TO JUDGE
dlk
"C.R."
SHAJI P. CHALY, J.
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W.P.(C) No. 4511 of 2017
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Dated this the 28th day of March, 2017
JUDGMENT
This writ petition is filed by the petitioners seeking to quash Ext.P1 in so far it relates to the property of the petitioner covered by Exts.P2. P3, P5, P6, P6(a), P6(b), P10, P13, P15 to P17, P19, P21, P23 and P25 and for other related reliefs.
2. Material facts for the disposal of the writ petition are as follows:-
Petitioners are land holders allegedly having title and exclusive possession in accordance with documents specified above. First respondent through Ext.P1 administrative order proceeded to take possession of an extent of 180 Acres of land comprised in Paivalike, Meenja and Chippar Villages for the proposed solar projects to be undertaken by KSEB. It is stated therein that, 180 Acres of land earmarked takes in the property of the petitioners. According to the petitioners, the said land was identified on the erroneous assumption that the land holders who were validly granted assignment on registry much earlier, were no more the owners, for they failed to occupy the land in terms W.P.(C) No. 4511 of 2017 2 of conditions in the registry. That apart, it is stated that, petitioners being the independent owners the assignees as also the purchasers from assignees were not given any notice till date, either in any proceedings for cancellation of the assignment, or the present acquisition of the land for the solar project. It is also contended that, there is no basis in the assumption that Patta issued to the assignees stood cancelled since they took possession long back and continued in possession. It is also submitted that, the decision impugned taking away petitioners valuable constitutional right under Article 300-A, liable to be declared bad and capricious. Other contentions are also raised with respect to the illegality in Ext.P1 order.
3. The 7th respondent has filed a counter affidavit refuting the allegations and claims and demands raised by the petitioners. Apart from other contentions it is stated that, in connection with the globalized renewable energy resourcing of a solar park scheme was declared by the Ministry of New and Renewable Energy (MNRE), Government of India for installation of 25 solar parks targeting 20000 MW solar power by the end of 2018-19 in various States in India. One among the above with 2000 MW capacity was sanctioned for Kasargod District and MNRE had approved in W.P.(C) No. 4511 of 2017 3 principal for setting up the solar part at Paivalike, Meenja, Ambalathara, Chippar, Karinthalam and Kinanoor Village of Kasargod District of Kerala. Pursuant to which the Government of Kerala has decided to increase the capacity of solar sector in the State to 500 MW by 2017 and 2500 MW by 2030. Apart from meeting the present power shortage of the State, it also contributes to the long term energy security and ecological stability by reduction in carbon emission.
4. Thereupon, permissive sanction and advance possession of 484.32 Ares of land in Ambalathara Village and 598.94 Ares of land in Paivalike, Meenja, Chippar, Karindalam and Kinanoor have been accorded by the Government of Kerala as per its order dated 25.7.2015. Two 50 MW projects each at Ambalathara and Paivalike Village was proposed as 1st Phase of the project. Solar park at Paivalike is already tendered and targeted to complete by 31.3.2018.
5. That apart, Solar Energy Corporation of India (SECI), a Government of India Company is the consultant and nodal agency of the entire 200 MW projects. The Renewable Power Corporation of Kerala (RPCKL) was informed as a joint venture of SECI and KSEB Ltd., with 50:50 equity ratio for implementing projects with its W.P.(C) No. 4511 of 2017 4 head quarters at Kanhangad South in Kasargode District as per Government Order dated 24.7.2015. As per G.O.(MS) No.15/2015/PD dated 27.4.2015 a Survey team was formed and survey was conducted for ascertaining the extent of land and demarcating the boundaries of the entire project area. For initiating the proposal to hand over the above barren and unoccupied land for the solar park project, the District Collector, Kasargod convened a conference of Revenue Officers and KSEB on 30.8.2015. In the said conference the District Collector informed that, advance sanction is given to hand over the land in Ambalathara Village of Hosdurg Taluk. The District Collector also informed that, proceedings to hand over land in Paivalike, Meenja and Chippar Villages in Manjeshwaram Taluk is to be initiated on emergency footing and the conference was convened for that purpose. In the conference, Deputy Director of Survey said that, about 250 Acres of land is available in the above said villages and it is necessary to ascertain as to whether the above land includes land already assigned. The Manjeshwaram Tahsildhar has informed that, proposal for 250 Acres of land can be sent and to find out the owners of the land and an Adalath could be conducted as the owners of the land are in different places and issuance of individual W.P.(C) No. 4511 of 2017 5 notices being very difficult vide advertisement in Kannada and Malayalam newspapers could be given. Accordingly. The following decisions were taken:-
(i) It was decided to conduct an Adalat to find out the owners of land in Paivalika, Chippar and Meenja Village of Manjeshwaram Taluk which was found out for solar project;
(ii) The Adalat for Paivalika and Chippar Villages shall be conducted on 08.10.2015 at Pailvalika Village Office and Adalat for Meenja Village will be conducted on 09.10.2015 at Meeja Village Office from 10.00 am to 4.00 p.m;
(iii) For giving vide publicity for the Adalat, news items are to be published in all Kannada and Malayalam dailies including evening dailies."
6. The said aspects are evident from Ext.R7 minutes dated 30.08.2015. Thereafter, in accordance with the decision so taken paper publications were effected informing that an Adalat would be conducted on 8.10.2015 and 9.10.2015 to ascertain the factual position from interested persons and in case the ownership could not be proved, the assignment would be cancelled, evident from Ext.R7(b) notice. Therefore, it is contended that, Ext.P1 order is W.P.(C) No. 4511 of 2017 6 passed by the Government on 28.01.2016 after carrying out the notice by publication. After elaborate discussion it was decided to hand over the possession of the land to KSEB on 28.6.2016. On the basis of the said decision an extent of 101.0636 hectors in Paivalika, Chippar and Meenja Village of Manjeshwaram Taluk was handed over to KSEB. Mahazar of the entire land was prepared by the Tahsildhar concerned. A sketch was also prepared showing the extent of land in the above said villages along with other areas included in the Government Order prepared by the Survey team and other formalities were also completed. After completing all the formalities the land was handed over, evident from Ext.R7(c), land hand over sheet dated 28.6.2016. That part, another 72.9076 hectors categorized as assigned but not occupied in Paivalike, Chippar and Meejna Villages of Manjeshwaram Taluk was handed over to KSEB on 29.7.2016, evident from Ext.R7(d), hand over sheet. It is stated in Exts.R7(c) and Ext.R7(d) that a detailed survey sketch of proposed land for solar power park in the aforesaid villages of Manjeshwaram Taluk was prepared with the direction of Deputy Director of Survey, Kasargode.
7. In the sketch an extent of 101.0636 hectors of land is marked as 'available land'. It is also stated that, the land is not W.P.(C) No. 4511 of 2017 7 having any structures, cultivation, possession or separate boundary. The land is rocky in nature without any scope for cultivation or residential purpose. The sketch prepared also contained areas of assigned but not 'occupied land' and 'encroached land'. However, it is admitted that, the land was assigned to landless people under a Government Scheme, but with specific conditions. Ext.P12 is one of the assignment orders. It is stated in Ext.P12 that, the land granted on registry shall be heritable but it shall not be alienated for a period of 10 years from the date of occupation or the date of registry thereof, which ever is later. Yet another condition is that, the assignee or any member of his family or successor in interest shall reside in/shall cultivate the land and such residence/cultivation shall commence effective within a period of one year from date of receipt of Patta or the provisional Patta issued earlier. That apart it is further stipulated that, the registry shall be liable to be cancelled for contravention of conditions 1 and 2 above and also for contravention of the conditions specified in the Patta or provisional Patta. Other parameters and stipulations are also provided under such Patta. According to the 7th respondent, the most important condition therein is that, in the event of cencellation of the registry, the assignee shall not be entitled to W.P.(C) No. 4511 of 2017 8 compensation for any improvements he might have made on the land. It can be seen from the exhibits produced in the writ petition that many of the petitioners are assignees from the persons to whom land was assigned by the Government. None of the petitioners are holding the assigned land and no improvements are made therein. Even though public notice was given by advertising in Kannada and Malayalam dailies having circulation in the area the petitioners did not come forward with any objection.
8. Petitioners have filed a reply affidavit refuting the statement contained in the counter affidavit and reiterating the stand adopted in the writ petition. According to the petitioners, Petitioners are not aware of the proceedings pursuant to Exts. R7
(c) and R7(d) and that they have not come across any publication, as that of Ext.R7(b). The crux of the contention advanced by the petitioners is that, they were paying tax regularly and they were prepared to produce necessary documents before the authority. That apart it is also contended that, the properties of the petitioners were having sufficient demarcation separately and residential buildings were there. More over, Exts.P2 and P5 are private properties, which are having no manner of connection with the assignment of land made by the Government to other W.P.(C) No. 4511 of 2017 9 Pattadars. Therefore, according to the petitioners, the valuable rights of the petitioners conferred under Article 300-A of the Constitution of India is interfered with consequent to the illegal action of the respondents.
9. Heard learned counsel for the petitioners, learned Government Pleader and learned senior counsel for the 7th respondent.
10. It is an admitted fact that, Patta was issued to various persons in respect of the land in question. It is also admitted by the petitioners that, the lands to which the registry was granted are either retained by the original holders, or on transfer effected by the Pattadars, held by other people on the basis of transfer of title effected validly, on the basis of Patta issued. Thereupon, the contention advanced by learned counsel for the petitioners is that, a valid right was accrued to the petitioners or their predecessors in interest of the property consequent to the assignment of the land under the provisions of the Kerala Land Assignment Act and Rules. Therefore, since the petitioners or their predecessors were holding the land in accordance with the provisions of the Land Assignment Act and Rules, before the cancellation of the Pattas or registry or taking away the land, an opportunity should have been provided to W.P.(C) No. 4511 of 2017 10 the petitioners as contemplated under Rule 8(3) of the Kerala Land Assignment Rules, 1964. On a reading of sub rule 3 of Rule 8, it is evident, the registry shall be liable to be cancelled for contravention of the provisions of sub rule 1 or sub rule 2 of Rule 8. The registry may also be cancelled if it is found that it was grossly inequitable or was made under a mistake of fact or owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authorities or that there was an irregularity in the procedure. In the event of cancellation of the registry the assignee shall not be entitled to compensation of any improvements he may have made on the land. The authority competent to order such cancellation shall be the authority which granted the registry or one superior to it. The proviso thereto stipulated that no registry of land shall be cancelled without giving the party or parties affected thereby, a reasonable opportunity of being heard. Other parameters and stipulations are provided under the second and third proviso thereto also.
11. According to learned Government Pleader as well as senior counsel for the 7th respondent individual service of notice to each and every owner of the land, who were assigned with lands was not possible and it was there upon that a decision was taken to W.P.(C) No. 4511 of 2017 11 carry out necessary paper publication. On a reading of Ext.R7(b) it is apparent, a notice was allegedly provided directing the land holders to appear before the Village Officer on 8.12.2015 and 9.10.2015 with sufficient documents to establish their rights over the properties, failing which action will be taken to cancel the registry. According to the 7th respondent, the said notice was published in Kannada as well as Malayalam dailies having wide circulation in the area. However, details of the paper in which the publications were carried out or any evidence is produced before this Court in order to arrive at a finding with respect to the publication carried out. True, in accordance with the terms and the stipulations contained under the assignment of registry on the basis of the provisions of the Kerala Land Assignment Act and Rules, the respective statutory authority is vested with ample powers to cancel the same, if such stipulations are violated. However, in my considered opinion, that by itself is not a ground to the said authority to cancel the assignment of registry without complying with the mandatory stipulations contained under the Kerala Land Assignment Rules, 1964, especially without providing an opportunity of hearing to the land holders. Having admitted that, the lands in question were taken over by the Government and W.P.(C) No. 4511 of 2017 12 handed over to the 7th respondent, a valid right accrued on the petitioners or their predecessors in interest on the basis of Article 300-A of the Constitution of India was interfered with.
12. Therefore, the assignment of registry granted to the petitioners should not have been cancelled without providing sufficient notice of hearing to such persons. There is no established and convincing evidence before this Court to show that the parameters and stipulations contained under the Act and Rules are followed by the respondents. It is a very well settled proposition in law that the owner of a land shall not be deprived of it, without following any established procedure under law. Even though, right to property was taken away from the fundamental rights guaranteed under Part III of the Constitution of India, Article 300-A extends a valid constitutional right to the owner of the land to held the same, in accordance with law. Eminent domain of the State cannot be stretched to such an extent to forcibly take possession of land from its owner without undergoing the mandatory procedures and formalities prescribed under law, which thus also means the State and its instrumentalities are not empowered to transgress into an absolute right conferred on a land holder under law. Rule of law demands and mandates equality before law and equal W.P.(C) No. 4511 of 2017 13 protection of laws. The State and its instrumentalities are not exempted from observing the prescription of laws. Any interference with such rights otherwise than by procedure established by law cannot be viewed lightly. If any such thing had happened in the instant case it is nothing but anarchy employed at the instance of the State and is unpardonable. However, it is submitted by the learned senior counsel for the 7th respondent that, on handing over the land, steps are already taken to establish a solar power park in the lands in question. In that view of the matter, I am of the considered opinion, without disturbing the possession handed over to respondent No.7, it is only appropriate that the petitioners are provided with an opportunity of hearing to appear before the District Collector, Kasargod. Petitioners are directed to appear on 20.4.2017 before the District Collector Kasargode, who shall after providing sufficient time, for the petitioners, to submit objections to Exts.R7 (b) notice, and to produce evidence in respect of their claims over the lands in question, and pass orders on the same, after making of due enquiries and hearing all the concerned including the authorities under the Land Assignment Act and Rules. Thereafter, if it is found that the petitioners were holding the land in accordance with the stipulations contained in the registry/Patta W.P.(C) No. 4511 of 2017 14 issued, as well as in accordance with the provisions of the Kerala Land Assignment Act, and Rules appended thereto, sufficient steps shall be taken to settle their claims, in accordance with law. This I say, because it is an admitted fact that lands were assigned in accordance with law, however, there is no conclusive and convincing evidence before this Court to establish that the lands were taken away or the registries were cancelled after providing sufficient notice of hearing to the petitioners, and in accordance with law.
13. Needless to say, if the petitioners are entitled as of right to claim compensation for the lands assigned to them in accordance with law, sufficient steps shall be taken to acquire the land in accordance with law. A finality shall be attained with respect to the receipt of the objection and consequential proceedings, at the earliest and at any rate, within four months from the date of receipt of a copy of this judgment.
Writ petition is allowed to the above extent.
Sd/-
SHAJI P. CHALY, JUDGE dlk/3/4/