CHANDRAN KANNIKKARAN Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) Can the superiors in the executive hierarchy in Government dictate to an officer in the matter of exercise of statutory power conferred on him?

(2.) Petitioner is a member of a Scheduled Tribe. The Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999, hereinafter referred to as the "Act", for short, is an Act to provide for restricting the transfer of lands by members of Scheduled Tribes in the State of Kerala and for the restoration of possession of lands alienated by such members and for matters connected therewith. Section 4 of the Act provides that notwithstanding anything to the contrary contained in any other law or in any contract, custom or usage, or in any judgment, decree, or order of any court, any transfer effected by a member of the Scheduled Tribe, of land possessed, enjoyed or owned by him on or after the commencement of the Act, to a person other than a member of a Scheduled Tribe, without the previous consent in writing of the competent authority, shall be invalid. The 'competent authority", going by Section 2(a) of the Act, with reference to any land, means the District Collector of the district in which the land is situate or any other officer appointed by the Government to be the competent authority for the purpose of the Act, for the areas in which the land is situate. So much so, any land possessed or enjoyed by the petitioner, who is a member of the Scheduled Tribe, can be transferred only with the previous consent of the District Collector of the District in which the land is situate, unless there is an officer appointed by the Government to be the competent authority for the purpose of the Act, for the area in which the petitioner's land is situate. As regards the are in question, there is no other officer appointed by the Government, to be the competent authority Therefore, the District Collector, Thiruvananthapuram, is the competent authority in relation to the petitioner's land.

(3.) Adverting to the facts of the case in hand, instead of applying to the District Collector - the competent authority for prior permission in terms of Section 4 of the Act, the petitioner moved the Minister for Scheduled Castes and Scheduled Tribes Development, in the Government, seeking that appropriate orders may be issued so that the Tribal Department would ensure issuance of the order of permission by the appropriate department. The Principal Secretary in the Scheduled Castes and Scheduled Tribes Development Department thereupon addressed the Director for Scheduled Tribe Welfare, who, in turn, issued Ext. P2 reply, however calling the attention of the Government to the fact that any such consent has to be given only by the District Collector. In fact, that is so, in terms of the Act. The Principal Secretary to Government in the Revenue (R) Department thereupon issued Ext. P3 to the District Collector requesting the District Collector to take necessary action to issue "NOC" to the petitioner to sell his property. The petitioner's grievance is that the District Collector has not issued NOC in terms of Ext. P3 in spite of Ext. P9 representation dated 14-2-2007 stated to have been made by him to the District Collector. This writ petition is filed on 28-2-2007 with such allegation. The aforesaid facts would show that the request of the petitioner to the District Collector could have been only on or after 14-2-2007. Petitioner seeks a direction to the District Collector to issue permission.