Augustine Varkey and Susamma Augustine v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942** ## **WP(C).No.25805 OF 2020(A)** ## **PETITIONER/S:** - **1 AUGUSTINE VARKEY, AGED 71 YEARS, S/O.VARKEY, KALLOLICKAL, UPPUTHARA PO, UPPUTHARA, IDUKKI DISTRICT.** - **2 SUSAMMA AUGUSTINE, AGED 63 YEARS, W/O.AUGUSTINE, KALLOLICKAL, UPPUTHARA PO, UPPUTHARA, IDUKKI DISTRICT.** **BY ADV. SRI.BIJU .C. ABRAHAM** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA, REP.BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE STATE SPECIAL OFFICER AND COLLECTOR GOVERNMENT LAND RESUMPTION, THIRUVANANTHAPURAM 695 001.** - **3 THE DISTRICT COLLECTOR, IDUKKI DISTRICT, COLLECTORATE, IDUKKI 685 603.** - **4 THE TAHSILDAR, PEERMADE TALUK, IDUKKI DISTRICT 685 538.** - **5 THE VILLAGE OFFICER, UPPUTHARA VILLAGE, PEERMADE TALUK, IDUKKI DISTRICT- 685 505.** ## **GOVERNMENT PLEADER SRI.Y.JAFAR KHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.25805 OF 2020(A)** **2** ## **JUDGMENT** The petitioners herein are senior citizens. They state that they acquired title and possession of property having an extent of 53.86 Ares in survey No.338/1-63-1-10 of Upputhara Village on the cover of Ext.P1 settlement deed executed and registered on 22.12.1994. They have effected mutation in their favor and have been paying tax as is evident from Exhibit P2 tax receipt. However, in Exhibit P2, an endorsement has been made that the same is being accepted provisionally. It is contended that the property covered under Exhibit P1 was originally owned by a certain Simon, who acquired the same as per sale deed No. 18/1959 and the aforesaid Simon had assigned the same to the father of the petitioner, Sri. Varkey, as per Exhibit P1(a) sale deed vide No. 650/1959. 2. The petitioners contend that the provisions of the Land Tax Act, 1961, would not enable the Village officer to issue a tax receipt with an endorsement that the same is being accepted provisionally. It is contended that the petitioners approached the revenue authorities and sought for issuance of Record of Rights certificate, Location sketch, Possession certificate and other revenue certificates in respect of the property covered under Ext.P1 deed. However, their request was turned **WP(C).No.25805 OF 2020(A)** **3** down by the 5th respondent by Ext.P3 order on the ground that the issuance of revenue certificates have been interdicted by the 3rd respondent by Ext.P4 proceedings. The petitioner contends that Ext.P4 proceedings of the District Collector was challenged by several persons and this Court by Ext.P5 judgment dated 7.11.2018 had held that the proceedings under the Land Conservancy Act, 1957, can be invoked only for the purpose of resumption or removal of encroachment from Government lands and not in respect of property owned by individuals and obtained by deeds which have been legally executed and registered in accordance with law. The revenue authorities were ordered to accept basic tax from the petitioners therein on the strength of the title deeds relied on by them subject to adjudication of title in proceedings, if any, initiated by the Government. The petitioners also rely on Ext.P6 and P7 judgments rendered by this Court relying on the principles laid by this Court in Ext.P5 judgment. It is in the above backdrop that the petitioners have approached this Court seeking to quash Ext.P3 order and for a further direction to the 5th respondent to issue revenue certificates such as Possession Certificate, Location Sketch, Record of Rights etc. in respect of the property covered under Ext.P1 and to remove the endorsement in Ext.P2 tax receipt. 3. I have heard Sri.Biju C. Abraham, the learned counsel appearing for the petitioners, and the learned Government Pleader. **WP(C).No.25805 OF 2020(A)** **4** 4. I have considered the submissions made across the Bar. 5. Ext.P1 settlement deed shows that the petitioners have acquired title over the property covered under the deed. They have produced records showing that transfer of registry has been effected in their favour and they have been paying tax. However, in the tax receipt, an endorsement has been made to the effect that the tax is being received provisionally. Their grievance is that when they sought for issuance of Possession Certificate, ROR Certificate and other revenue records and also for removing the endorsement in the tax receipt, they were informed that the revenue records cannot be issued to them in view of Ext.P4 proceedings No.GLR(LR)210/15/PER-TCO dated 12.08.2016 of the Special Officer and Collector. I find that the above proceeding has already been set aside by this Court by Ext.P5 judgment dated 07.11.2018 wherein this Court has held that the proceedings issued by the District Collector cannot be sustained. It was further held that the remedy of the respondent-State Government is to institute appropriate civil suits before the competent civil court in the matter of title and not by issuing the impugned proceedings under the Land Conservancy Act. In that view of the matter, there is no justification on the part of the respondents in refusing to issue the certificates sought for by the petitioners on that count. 6. The respondents have raised a contention that the property **WP(C).No.25805 OF 2020(A)** **5** owned by the petitioners are parts of larger extents of properties, which had earlier secured exemption under Sec.81(1) (e) of the Kerala Land Reforms Act, 1964, on the ground that it is plantation land. It is contended that the fragmented plots of land are being used for non exempted purposes and therefore illegal. A Division Bench of this Court in the common judgment dated 04.04.2017 in W.A.Nos. 564 & 612 of 2017 has held that the question as to whether the petitionerslandowners would be actually using the lands in question for nonexempted purposes and thus violating the exemption clause would arise only when they actually use the land for quarrying purposes and not at the stage when they seek a Possession Certificate for any such prospective use and that those objections and contentions are not relevant and germane for refusal of issuance of such revenue certificates and that the respondent-State authorities are fully at liberty to raise all such contentions and such objections at the appropriate time, when a cause of action in that regard actually arises. In view of the said judgment, the respondents are obliged in law to consider the request of the petitioners without being burdened down by the provisions of the Land Reforms Act. Furthermore, this Court in **Devassia v. Sub Registrar[1]** has held that the provisions of the KLR Act do not place any embargo on transfer and the transfer of registry is 1 [2015(1) KLT 825] **WP(C).No.25805 OF 2020(A)** **6** for fiscal purposes on transfer and that said Act also do not curtail fragmentation of exempted lands from the purview of ceiling, but that exempted category of land, to have continuity of the qualification of exemption, the alienee or the transferee shall use the land for any of the purposes, for which exemption would be granted and if the land is used for a non-exempted purpose, either before or after the purchase, then certainly the respondent-State authorities may have the competence to take appropriate action as is warranted on law and facts, in that regard. In that view of the matter, the contention forcefully advanced by the learned Government Pleader cannot be sustained. 7. However, in view of the concern expressed by the State, it is made clear that it would be open to the competent among respondents to proceed against the petitioners under the Land Reforms Act, if a case is made out and in that event, the same shall be strictly as per procedure and in accordance with law with due notice to the petitioners. Resultantly, this writ petition is disposed of directing the concerned respondent to forthwith take up the request made by the petitioners for issuance of revenue certificates like Possession Certificate, location sketch, ROR certificate, etc. in respect of the properties covered under Ext.P1 and shall issue the same to the petitioners. It is also made clear that the tax receipt, if any, issued to **WP(C).No.25805 OF 2020(A)** **7** the petitioners, shall not carry out any adverse endorsement. Before parting, it is made clear that the directions issued as aforesaid will be subject to the adjudication of the title in a Civil Suit, if any, instituted by the State. ## **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** NS **WP(C).No.25805 OF 2020(A)** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SETTLEMENT DEED NO.4158/1994 DATED 22/12/1994 OF PEERMADE SRO.** **EXHIBIT P1(a) TRUE COPY OF THE SALE DEED NO.650/1959.** **EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT DATED 18/5/2020.** - **EXHIBIT P3 TRUE COPY OF THE LETTER DATED 30.10.2020 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS NO.GLR(LR) 210/15/PER-TCO DATED 12/8/2016 OF THE SPECIAL OFFICER AND COLLECTOR.** - **EXHIBIT P4 (a) TRUE COPY OF THE GO NO.172/2019 ISSUED BY THE 1ST RESPONDENT ON 6/6/2019.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 7/11/2018 PASSED BY THIS HON'BLE COURT IN WP(C) NO.40002/2016 AND CONNECTED CASES.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 18/2/2019 PASSED BY THIS HON'BLE COURT IN WP(C) NO.4647/2019.** - **EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 13/7/2020 IN WP(C).NO 13736/2020 (N).** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R4 (a) A TRUE COPY OF THE ORDER NO H6(P)6686/74 OF TLB, PEERMADE.** - **EXHIBIT R4 (b) A TRUE COPY OF THE GOVERNMENT ORDER GO NO.1254/2013/REV. DATED 07.03.2013.** - **EXHIBIT R4 (c) A TRUE COPY OF THE ORDER DATED 18.03.2020 IN WRIT APPEAL NO 2299/2019.** **//TRUE COPY// P.A.TO JUDGE**