IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 RSA.No. 1235 of 2009() ---------------------- AS.234/2001 of ADDL. DISTRICT COURT-II, MAVELIKKARA OS.560/1998 of MUNSIFF COURT, MAVELIKKARA .................... APPELLANTS/APPELLANT/PLAINTIFF -------------------------------------------------- MURALEEDHARAN PILLAI @ MURALI, S/O.ACHUTHAN PILLAI,VRINDAVAN,VETTIYAR MURI, VETTIYAR VILLAGE,MAVELIKKARA TALUK. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SRI.B.BIPIN RESPONDENTS/RESPONDENT/DEFENDANTS ------------------------------------ 1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR,ALAPPUZHA. 2. TAHSILDAR,MAVELIKKARA. 3. DEPUTY TAHSILDAR,(R.R). 4. VILLAGE OFFICER,VETTIYAR. GOVERNMENT PLEADER: P N SUMANGALA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1235 of 2009 --------------------------------------- Dated this 05th day of February, 2010 JUDGMENT It is alleged that appellant unauthorisedly removed soil from Konnath east to Vettiyar Bridge during 1997-98 and 1998-1999. Learning about that, respondent No.2 initiated action against appellant under provisions of the Kerala Land Conservancy Act 1957 (for short, “the Act”) and issued a notice to the appellant on 24-02-1997 stating about his alleged unauthorised act and calling upon him to appear before respondent No.2 and show cause why further action should not be taken in the matter. He claimed that the local authority had issued licence in his favour for removal of sand and soil from the said area during the said period. He has been removing soil as per terms and conditions of the licence and while so he received notice dated 24-02- 1997 alleging that he unauthorisedly removed 1600 cubic meters of soil up to a distance of about 800 meters. According to the appellant he appeared before respondent No.2 and filed his objection but disregarding his objection respondent No.2 issued order directing him to pay Rs.84,000/- by way of damages and Rs.50/- by way of fine. On the strength of that order respondents initiated revenue recovery proceedings. Hence appellant filed suit for declaration that steps taken by the respondents for recovery of the amount are illegal and for R.S.A.No.1235 of 2009 2 permanent injunction restraining respondents from proceeding against him. Respondent No.1 denied that appellant is a licensed contractor and asserted that he unauthorisedly removed 1600 cubic meters of soil and sand from river puramboke and sold 200 loads of soil at Rs.70/- per load and 200 loads of sand at Rs.350/- per load. The incident was reported by respondent No.4, Village Officer. Based on that report a case was registered against appellant as L.C.No.1 of 1996. Appellant was issued with notice to appear before respondent No.2 personally or through authorised agent on 28-02-1997 and show cause. He did neither. Hence respondent No.2 passed order directing appellant to pay penalty and fine as first above stated. It is contended that the suit is barred under the provisions of the Act. Courts below found in favour of the contention raised by the appellant and non suited appellant. Hence this second appeal. The substantial question of law urged in the memorandum of appeal is whether suit is hit section 72 of the Revenue Recovery Act and under Sections 20 and 21 of the Land Conservancy Act. It is contended by learned counsel that suit for declaration and injunction is not barred and has placed reliance on the decision in Shamsudeen Vs. Travancore Devaswom Board (2001(1) KLT 292). Learned Government Pleader who took notice for respondent Nos.1 to 4 would contend that under section 20 of the Act the suit is not maintainable as jurisdiction of the civil court is expressly ousted. It is also the contention of learned Government Pleader that the Act R.S.A.No.1235 of 2009 3 provides statutory remedy for appellant if he is aggrieved by the order passed by respondent No.2. Further contention is that if at all the suit is maintainable it ought to have filed within one year of the date on which cause of action arose. The suit is filed beyond that time. 2. It is not disputed that respondent No.2 has passed order against appellant in L.C.No.1 of 1996 under provisions of the Act and has directed appellant to pay damages and fine. It is not disputed that appellant had removed soil and sand from the area in question during the relevant time. Though he has a contention that he is a licensed contractor, no document evidencing that is produced. Section 6 of the Act enables the District Collector in such circumstance to initiate action against unauthorised removal of sand/soil etc and recover damages and fine. Section 20 of the Act reads: “No suit against the government shall be entertained in any Civil court in respect of any order passed under this Act except upon the ground that the land in respect of which such order has been passed is not a land which is the property of Government whether a poramboke or not. Provided that Civil courts shall not take cognizance of any such suit unless it shall be instituted within one year from the date on which the cause of action arose.” (emphasis supplied) R.S.A.No.1235 of 2009 4 3. Going by the said provision, a suit against the government in respect of any order passed under the Act is maintainable only on the ground that the land is not property of the government. Even in such cases the suit must be filed within one year from the date on which cause of action (for the suit) arose. Appellant has no case that he has removed sand/soil from a property not belonging to the government. Even otherwise, respondent No.2 issued order directing appellant to appear on 06-04-1997 and the suit is filed only on 23-12- 1998, ie. beyond one year as provided in the proviso of section 20. It is contended by learned counsel placing reliance on the decision in Shamsudeen Vs. Travancore Devaswom Board (supra) that a suit for declaration and injunction is maintainable. I am unable to accept that contention. The decision relied on by learned counsel concerned application of section 20A of the Act which barred institution of suit by the Government for recovery of possession of government land. That provision did not bar suit between individuals who claim to be in possession of the property. Section 20 of the Act is specific and clear that the suit of the nature on hand is not maintainable. 4. It is then contended by learned counsel that under section 6 of the Act, it is for the collector to initiate action unless as provided under section 15 of the Act a notification has been issued in the Gazette authorising any officer other than Collector as mentioned therein to exercise powers conferred on a Collector under the Act. The R.S.A.No.1235 of 2009 5 argument is that no such notification is produced in this case. No such contention is seen raised in the courts below. It is settled position of law that when a statute ousts the jurisdiction of the civil court, civil court can only examine whether provisions of the statute have been complied with by the statutory tribunal or is the fundamental principles of judicial procedure have been complied, as held in Anwar Vs. First Additional District Judge, Bulandshahr & Ors. (AIR 1986 1785) and Malabar P & R Co.Ltd Vs. Tax Recovery Officer (1990 (1) KLT 756). No such situation arises on the facts of this case. As such courts below are correct in holding that the suit is not maintainable. 5. Learned counsel for appellant then submitted that under section 17 of the Act, no appeal shall be preferred against the order of respondent No.2, after the period of limitation which has already expired. Learned counsel submitted that under section 17(2) of the Act it is open to the appellate authority concerned to condone the delay if that authority is satisfied that appellant had sufficient cause for not preferring the appeal within the time prescribed. Request of learned counsel is that direction may be given to the appellate authority to consider the appeal if preferred by the appellant. I am not inclined to think that a direction in that way need be issued. However, if the statute provides remedy for the appellant by way of appeal or revision, it is open to him to do so if he is otherwise entitled as provided under law. If any request for condonation of delay is made it R.S.A.No.1235 of 2009 6 is open to the appropriate authority dealing with that request to consider all relevant facts and take appropriate decision in that matter in a sympathetic manner considering pendency of this litigation. With the above direction the second appeal is dismissed in limine as no substantial question of law is involved. THOMAS P JOSEPH, JUDGE Sbna/