Amith Mathew & others v State of Kerala & others

WP(C) No. 3769 of 2023 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` MONDAY, THE 19[TH] DAY OF JUNE 2023 / 29TH JYAISHTA, 1945 WP(C) NO. 3769 OF 2023 ``` ## **`PETITIONERS:`** ``` 1AMITH MATHEW AGED 18 YEARS S/O K.M MATHEW, KAKKAKOODUMKAL, THALAYAD P.O, THAMARASSERY, KOZHIKODE, PIN - 673574 2K.M. MATHEW AGED 62 YEARS KAKKAKOODUMKAL, THALAYAD P.O, THAMARASSERY, KOZHIKODE, PIN - 673574 3RAJI MATHEW AGED 53 YEARS KAKKAKOODUMKAL, THALAYAD P.O, THAMARASSERY, KOZHIKODE, PIN - 673574 BY ADVS. K.I.MAYANKUTTY MATHER VINEETH KOMALACHANDRAN S.PARVATHI KALLIYANI KRISHNA B. ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REP. BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM G.P.O., THIRUVANANTHAPURAM, PIN - 695001 2DISTRICT COLLECTOR WAYANAD ROAD, CIVIL STATION, ERANHIPPALAM P.O., KOZHIKODE, PIN - 673020 3TAHSILDAR THAMARASSERY TALUK, THAMARASSERY P.O., KOZHIKODE, PIN - 673573 4DISTRICT REGISTRAR MANANCHIRA P.O., KOZHIKODE, PIN - 673001 5NATIONAL TESTING AGENCY REPRESENTED BY ITS DIRECTOR, 1ST FLOOR, NSIC -MDBP BUILDING, OKHLA INDUSTRIAL ESTATE, NEW DELHI, PIN - 110020 ``` WP(C) No. 3769 of 2023 2 ``` BY ADVS. G.P., SRI. JOBY JOSEPH Nirmal S ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No. 3769 of 2023 3 ## **VIJU ABRAHAM , J. =========================== WP(C) No. 3769 of 2023 ============================ Dated this the 19[th] day of June, 2023** ## **J U D G M E N T** Petitioners have approached this Court challenging Ext P13, whereby the request of the 1[st] petitioner for issuance of an Income and Asset Certificate to claim G-EWS category benefits has been declined by the 3[rd] respondent on the ground that they are in ownership and possession of more than 5 acres of land and going by the provisions of GO(MS) No. 52/2019/GAD dated 14.03.2019, the certificate sought for cannot be granted. 2. 1[st] petitioner submits that he is desirous of pursuing Engineering degree and was preparing for Joint Entrance Examination and he had applied for entrance examination conducted in the year 2023 and had claimed reservation in the General-Economically Weaker Section (G-EWS) category. In order to claim the said reservation, 1[st] petitioner has to produce the Income and Asset Certificate issued by the 3[rd] respondent in the prescribed format. In order to obtain the said certificate, as per the terms of GO(MS) No. 52/2019/GAD dated 14.03.2019, the petitioner has to satisfy the following conditions: WP(C) No. 3769 of 2023 4 - _1) The gross income of his/her family should be below 8 lakhs for the financial year 2022-23._ - _2) The family of the applicant does not own or posses;_ - _i) 5 acres of agricultural land and above;_ _ii) Residential flat of 1000 sq. ft. and above; iii) Residential plot of 100 sq. yards and above in notified municipalities._ _iv) Residential plot of 200 sq.yards and above in areas other than the notified municipalities._ It is submitted that the gross income of the 1[st] petitioner’s family is far below 8 lakhs including for the financial year 2022-23. The 1[st] petitioner’s family consist of his father (2[nd] petitioner), mother (3[rd] petitioner) and two sisters who are married. The petitioners are living in a rented house. Petitioners 2 and 3 jointly own only 4 acres of land at present and thus the family of the 1[st] petitioner satisfies all the conditions stipulated for obtaining Gen-EWS Certificate from the 3[rd] respondent. 3. Thereupon the petitioners approached the 3[rd] respondent with a request to issue the requisite certificate. The petitioners were intimated by the 3[rd] respondent that the certificate cannot be granted in the light of the report received from the Village Office, disclosing that petitioners 2 and 3 own property having an extent of more than 5 acres. Petitioners submit that the said report of the Village Officer is not correct. The petitioners 2 WP(C) No. 3769 of 2023 5 and 3 had purchased 3 sets of agricultural properties during the year 2013-14 from ‘The Cochin Malabar Estates and Industries Limited’ which formed part of a larger extent of plantation known as ‘Kinalur Estate’. The 1[st] item is 9.44 acres of agricultural land comprised in Re.Sy. No.118/1A of Unnikulam Village, Thamarassery Taluk which was purchased jointly by petitioners 2 and 3, brother of the 2[nd] petitioner and his wife as per Ext P5 document. Thereafter whole of the said property was decided to given by way of gift to the 2[nd] petitioner’s brother and his wife and Ext P6 agreement dated 28.02.2022 was executed in this regard. The 2[nd] set of property is having an extent of 4 acres of agricultural land in Re.Sy. No. 117/1 in Unnikulam Village purchased by petitioners 2 and 3 as per Ext P7 and the said property was sold in the year 2019 as per Exts P8 and P9 sale deeds. The 3[rd] set of property is having an extent of 4 acres of agricultural land in Re.Sy. No. 1/12 of Unnikulam Village purchased by petitioners 2 and 3 as per Ext P10 sale deed. 4. The contention of the petitioners is that Ext P6 agreement was executed in respect of the 1[st] item of property and the 2[nd] item of property has already been sold as per Exts P8 and P9, what remains is only 4 acres of land covered by Ext P1 sale deed, and therefore they are eligible to obtain Gen-EWS Certificate from the 3[rd] respondent. The contention of the petitioners is that, WP(C) No. 3769 of 2023 6 as regards item No.1 they could not execute a gift deed in view of the prohibition for registration for the transfer of land as per Ext P11 prohibitory order dated 09.07.2019 issued by the 2[nd] respondent District Collector. Petitioners submit that Ext P11 prohibitory order was issued in view of the judgment of this Court in _**One Earth One Life v. State of Kerala [2019 (1) KLT 985]**_ which held that the fragmentation of plantation is to be prevented since such fragmentation is with a view to escape from the ceiling provisions of the Kerala Land Reforms Act, 1964. Petitioners submit that the said judgment has not become final and the parties have taken the matter before the Apex Court and SLP (Civil) Diary No. 38939/2019 is still pending consideration before the Apex Court and the Apex Court as per Ext P12 order dated 24.01.2020 has ordered to maintain status quo by the parties as on that date. The 3[rd] respondent has now rejected the request for issuance of an Income and Asset Certificate as per Ext P13 order dated 24.01.2023 maintaining the stand that the petitioners are in possession of more than 5 acres of land. Petitioners contend that as regards the 1[st] item of property, already an agreement for sale has been executed as is evident from Ext P6 and only due to the prohibitory order issued as per Ext P11 that the gift deed could not be registered. Therefore the said item of property having an extent of 9.44 ares in Re.Sy. No. 118/1A of Unnikulam Village, WP(C) No. 3769 of 2023 7 Thamarassery Taluk shall not be taken into consideration while issuing the Income and Asset Certificate sought for by the petitioner. 5. The 3[rd] respondent has filed a detailed counter affidavit, wherein it is specifically contended that the petitioner’s family is in possession of more than 8 acres of land and going by the provisions of GO(MS) No. 52/2019/GAD dated 14.03.2019, the family of the applicant should not possess more than 5 acres of agricultural land. It is also contended by the 3[rd] respondent in the counter affidavit that since the petitioner’s family had purchased large extent of land, even going by the averment in the writ petition, it is clear that they have purchasing capacity and they are financially sound. The property in respect of which Ext P6 agreement dated 28.02.2022 has been executed cannot be excluded from the total extent of land held by the family of the petitioners in as much as if claim of transfer of land by way of unregistered item to near relatives if accepted as a valid alienation, it will be used as a tool for deciting, so as to claim the benefit of GO(MS) No. 52/2019/GAD dated 14.03.2019. I have considered the rival contentions in detail. Admittedly, the petitioner’s family holds more than 5 acres of land at the time of application whereby making them ineligible for issuance of Income and Asset Certificate as claimed by the petitioners. The WP(C) No. 3769 of 2023 8 question to be considered is whether the property covered by Ext P6 agreement could be excluded for the purpose of grant of Income and Asset Certificate, so as to claim Gen-EWS Certificate. Ext P6 is only an agreement and the petitioners are in ownership and possession of the property covered by Ext P6, at the time of submission of application for issuance of the certificate. Therefore, I am of the opinion that the property covered by Ext P6 cannot be excluded for the purpose of grant of Income and Asset Certificate so as to claim reservation under Gen-EWS category. Since admittedly petitioners are in possession of property having an extent of more than 5 acres, I find no reason to interfere with Ext P13 order issued by the 3[rd] respondent and the writ petition is accordingly dismissed. **Sd/VIJU ABRAHAM JUDGE** sbk/- WP(C) No. 3769 of 2023 9 ## **`APPENDIX OF WP(C) 3769/2023`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE MARK STATEMENT CUM`| ||`CERTIFICATE ISSUED BY THE CENTRAL BOARD`| ||`OF SECONDARY EDUCATION IN THE SECONDARY`| ||`SCHOOL EXAMINATION, 2020 OBTAINED FROM`| ||`THE OFFICIAL WEBSITE OF CENTRAL BOARD OF`| ||`SECONDARY EDUCATION`| |`Exhibit P2`|`: TRUE COPY OF THE EXAMINATION RESULT OF`| ||`THE 1ST PETITIONER IN SENIOR SCHOOL`| ||`CERTIFICATE EXAMINATION, CLASS XII, 2022`| ||`OBTAINED FROM THE OFFICIAL WEBSITE OF`| ||`CENTRAL BOARD OF SECONDARY EDUCATION`| |`Exhibit P3`|`TRUE COPY OF THE FORMAT OF THE INCOME AND`| ||`ASSET CERTIFICATE`| |`Exhibit P4`|`TRUE COPY OF THE DECLARATION SUBMITTED BY`| ||`THE 1ST PETITIONER ALONG WITH THE`| ||`APPLICATION`| |`Exhibit P5`|`TRUE COPY OF THE DOCUMENT NO. 4622/2017`| ||`OF THE THAMARASSERY TOWN SRO DATED`| ||`23.10.2013`| |`Exhibit P6`|`TRUE COPY OF THE AGREEMENT DATED`| ||`28.02.2022`| |`Exhibit P7`|`TRUE COPY OF THE DOCUMENT NO. 50/2014 OF`| ||`THE THAMARASSERY TOWN SRO DATED`| ||`12.11.2013`| |`Exhibit P8`|`TRUE COPY OF THE DOCUMENT NO. 1159/2019`| ||`OF THE THAMARASSERY TOWN SRO DATED`| ||`20.04.2019`| |`Exhibit P9`|`TRUE COPY OF THE DOCUMENT NO. 1160/2019`| ||`OF THE THAMARASSERY TOWN SRO DATED`| ||`20.04.2019`| |`Exhibit P10`|`TRUE COPY OF THE DOCUMENT NO. 5401/2013`| ||`OF THE THAMARASSERY TOWN SRO DATED`| ||`12.11.2013`| |`Exhibit P11`|`TRUE COPY OF THE PROHIBITORY ORDER DATED`| ||`09.07.2019 ISSUED BY THE 2ND RESPONDENT -`| ||`DISTRICT COLLECTOR`| |`Exhibit P12`|`TRUE COPY OF THE ORDER IN SPECIAL LEAVE`| ||`PETITION (CIVIL) DIARY NO. 38939/2019 OF`| ||`THE HON'BLE SUPREME COURT DATED`| ||`24.01.2020`| |`Exhibit P13`|`TRUE COPY OF THE ORDER ISSUED BY THE 3RD`| ||`RESPONDENT DATED 24.1.2023`| |`Exhibit P14`|`TRUE COPY OF THE REPORT DATED 31.12.2022`| ||`OF THE VILLAGE OFFICER, KATTIPPARA`| WP(C) No. 3769 of 2023 10 ``` Exhibit P15TRUE COPY OF THE CERTIFICATE DATED 28.12.2022 ISSUED BY THE VILLAGE OFFICER, CHIRAKKADAVU, PONKUNNAM Exhibit P16TRUE COPY OF THE CERTIFICATE DATED 30.12.2022 ISSUED BY THE SECRETARY, KATTIPPARA GRAMA PANCHAYAT ```