Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI TUESDAY, THE29H DAY OF OCTOBER20137TH KARTHIKA, 1935 WP(C).No. 21547 of 2006 (M) ---------------------------------------- PETITIONER: ------------------- BELLECHI, W/O.KUNHAPPU MANIYANI, RESIDING AT CHELLANTHADKA HOUSE, POST MOVVAR, KASARAGOD DISTRICT. BY ADVS.SRI.D.KRISHNA PRASAD, SRI.D.NARENDRANATH, SRI.M.HARISHARMA, SRI.T.P.ELDHOSE, SMT.O.K.SANTHA. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.
2. THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM.
3. THE REVENUE DIVISIONAL OFFICER, KASARAGOD AT KANHANGAD.
4. THE SPECIAL TAHSILDAR, LAND ASSIGNMENT, KUMBLA, KASARAGOD.
5. GANGADHARAN MANIYANI, S/O. KRISHNA MANIYANI, RESIDING AT SATYA SAI VIHAR, ALIKE, POST S.S.VIHAR, BANTWAL TALUK, KARNATAKA STATE. R1 TO R4 BY SR.GOVERNMENT PLEADER SMT. SERENA GEORGE, R5 BY ADVS.SRI.SURESH KUMAR KODOTH, SMT.V.SETHUKUTTY AMMA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON2910-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. W.P.(C).NO.21547/2006-M: APPENDIX PETITIONER'S EXHIBITS: EXT.P.1: COPY OF THE ASSIGNMENT ORDER
IN L.A. NO.29/1974/KUMBADAJE DTD. 02/02/78 ISSUED BY THE R.4. EXT.P.2: COPY OF THE MEMORANDUM OF APPEAL DTD. 25/08/2000 FILED BY THE PETITIONER BEFORE THE R.3. EXT.P.3: COPY OF THE ORDER
DTD. 22/04/2005 BEARING NO.D. DIS. 2979/05 PASSED BY THE SUB COLLECTOR, KASARAGOD IN A.A. 38 OF2000 EXT.P.4: COPY OF THE MEMORANDUM OF REVISION DTD. 16/05/2005 FILED BY THE PETITIONER BEFORE THE R.2. EXT.P.5: COPY OF THE ORDER
DTD. 17/02/2006 NO. LR. J2.25251/2005 PASSED BY R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. A.V. RAMAKRISHNA PILLAI, J.
-------------------------------------------------- W.P.(C) No. 21547 of 2006 -------------------------------------------------- Dated this the 29th day of October, 2013
JUDGMENT
Under challenge in this writ petition are Exts.P1, P3 and P5, which are the order of assignment passed in favour of the 5th respondent, the orders in appeal and revision respectively by the authorities under the Kerala Land Assignment Act and Rules.
2. The 5th respondent obtained assignment of Ext.P1 properties. The case of the petitioner is that the 5th respondent was not entitled to such an assignment, whereas the petitioner had a preferential claim for assignment under Section 7(1) of the Kerala Land Assignment Act and Rule 64 of the Rules. Her case is that she was also an applicant for such an assignment. But, behind her back, an order of assignment was passed in favour of the 5th respondent. The matter was taken in appeal by the petitioner before the appellate authority. W.P.(C) No. 21547 of 2006 ..2.. The appellate authority declined to interfere with the assignment made as per Ext.P3. However, it was ordered that 15 links pathway has to be provided to the petitioner across the property assigned to the 5th respondent. The matter was taken in revision by the petitioner before the 2nd respondent, who set aside Ext.P3 order in toto vide Ext.P5 order. It was pointed out that Ext.P5 order was passed without assigning any reasons and, therefore, the same has to be interfered with. According to the petitioner, by quashing Ext.P3 in toto vide Ext.P5 order, she would be loosing her right of pathway across the property assigned to the 5th respondent.
3. I have heard the learned counsel for the petitioner, the learned counsel for the 5th respondent and the learned Senior Government Pleader.
4. Placing reliance on the Rules under the Land Assignment Act, the learned counsel for the petitioner would argue that the appellate authority has every power to confirm, vary or alter any order of the Officer, W.P.(C) No. 21547 of 2006 ..3.. subordinate to him, which was taken in appeal before them. In support of the argument, the learned counsel for the petitioner invited my attention to a Full Bench decision of this Court in Dharmadas v. State Transport Appellate Tribunal [1962 KLT505, which states that the right of appeal is a creature of statute and grant of jurisdiction to entertain an appeal implies the grant of all powers necessary to its exercise. The aforesaid decision was also followed in Kochukunju Pillai v. Revenue Divisional Officer & Others [1978 KLT478. There cannot be any quarrel against the proposition that the appellate authority carries the powers with it, which are necessary to exercise the appellate jurisdiction. However, as rightly pointed out by the learned counsel for the 5th respondent, that power cannot be exercised in an arbitrary manner and the appellate authority cannot be carried away by irrelevant considerations. The trump card of the learned counsel for the petitioner is that the respondent has not challenged Ext.P3 order and, W.P.(C) No. 21547 of 2006 ..4.. therefore, he cannot now turn up and say that the order of the revisional authority quashing Ext.P3 is correct. Though the appellate authority declined to interfere with the assignment made as per Ext.P3, remanded the matter back holding that a 15 links access has to be provided to the petitioner through the properties assigned to the 5th respondent. This, according to the learned counsel for the respondent, is totally illegal and the revisional authority has every power to go through the legality, propriety and regularity of the orders, which are under challenge.
5. It is relevant to note that the petitioner is claiming an exclusive right of way through the property in dispute, which the petitioner can get established only through a competent civil court. This fundamental fact has escaped the attention of the appellate authority and; this Court is of the definite view that quashing the appellate order in toto is justified even though the reasons were not expressed in so many words. W.P.(C) No. 21547 of 2006 ..5.. Viewed in that profile, this Court is of the definite view that there is no scope for interference with the impugned orders. However, if the petitioner is having any claim of easement over the property in dispute, she can pursue the same through a competent forum. Reserving that right, this writ petition is dismissed. Sd/- A.V. RAMAKRISHNA PILLAI, JUDGE bka/-