Benny Vazhayil and Aleyamma Mathew v. District Collector, Kannur; Tahsildar, Taliparamba; Village Officer, Panniyoor; Sub Registrar, Taliparamba

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940** **WP(C).No. 3645 of 2019** ## **PETITIONER/S:** - **1 BENNY VAZHAYIL, AGED 54 YEARS S/O.DEVASIA, KUDIANMALA P.O., NADUVIL (VIA), KANNUR DISTRICT.** - **2 ALEYAMMA MATHEW, W/O.BENNY VAZHAYIL, KUDIANMALA P.O., NADUVIL (VIA), KANNUR DISTRICT.** **(BOTH THE PETITIONERS ARE REPRESENTED BY THE POWER OF ATTORNEY HOLDER THEIR DAUGHTER NEETU)** **BY ADV. SRI.GEORGE MECHERIL** ## **RESPONDENT/S:** - **1 THE DISTRICT COLLECTOR, KANNUR-670002.** - **2 THE TAHSILDAR, TALIPARAMBA, KANNUR DISTRICT, PIN-670141.** - **3 THE VILLAGE OFFICER, PANNIYOOR, KANNUR DISTRICT, PIN-670582.** - **4 THE SUB REGISTRAR, TALIPARAMBA, KANNUR DISTRICT, PIN-670141.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **WP(C).No.3645 of 2019** ## **ALEXANDER THOMAS, J** . ----------------------------W.P(C).No.3645 Of 2019 --------------------------------Dated this the 19[th] day of February, 2019. ## **J U D G M E N T** The prayers in the above Writ Petition (Civil) are as follows: - _“a) issue a writ in the nature of mandamus or such other appropriate writ, order or direction commanding the respondents to permit the petitioner to sell the property and to execute the sale deed in respect of the property covered by Ext.P-1 title deed and Ext.P-3 certificate of purchase at the earliest._ - _b) declare that the land owned by the petitioners covered by Ext.P1 title deed and Ext.P3 Certificate of Purchase is not liable to be included in the Ceiling Case No.627/73/TPA initiated against Puliyappadam Illath Haridasan Namboodiri as the land in question was never owned or possessed by the statement giver in TLB No.627/73/TPA, as is evident from Ext.P6 report;_ - _c) declare that no clearance certificate or NOC from the revenue department is required for execution of sale deed in respect of the property covered by Ext.P1 Sale Deed and Ext.P3 Certificate of Purchase so long as it stands;_ - _d) to pass such other order or direction which this Honourable Court would deem just and proper in the facts and circumstances of the case.”_ 2. Heard Sri.George Mecheril, learned counsel for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. It is stated that the petitioners herein are the joint owners of 10.1 cents of land comprised in R.S.No.21/1 of Panniyoor Village, Taliparamba Taluk, Kannur Revenue District, which they have been holding since 1994. The petitioners have purchased the ::3:: **WP(C).No.3645 of 2019** said land from one Kodiyil kunhaleema, as per Ext.P-1 document No.2869/1994 dated 27.9.1994 of S.R.O., Taliparamba. Immediately after execution of Ext.P-1 registered sale deed, mutation of the property have been duly effected in favour of petitioners and basic land tax has also been accepted from them and continued to accept the same up to the year 2018-2019 as per Ext.P-2 land tax receipt dated 29.6.2018. It is pointed out that the vendor of the petitioners had purchased 40.47 ares of land from one Narayani, Parvathi and Kunhiraman on the basis of registered sale deed No.539/1975 dated 19/2/1975 of S.R.O., Taliparamba and the abovesaid vendor of the petitioners has been issued Ext.P-3 purchase certificate No.7965/76 dated 17.12.1976 issued by the Land Tribunal, Taliparamba, under Sec.72K of the Kerala Land Reforms Act, 1963. 4. Further that the petitioners have been constructed residential building in the said property covered by Ext.P-1 registered sale deed and they are residing there. The petitioners have decided to sell the property covered by Ext.P-1 sale deed and when they approached the 3[rd] respondent-SRO, the said Officer insisted that the petitioners should produce a certificate showing ::4:: **WP(C).No.3645 of 2019** that the land is not included in the land ceiling case No.627/73/TPA. The petitioners have then approached the 3[rd] respondent-Village Officer and requested to issue a certificate to that effect. But the petitioners were then directed to approach the 2[nd] respondent-Tahsildar, Taliparamba, who in turn informed the petitioners that the 1[st] respondent-District Collector has issued a direction to the respondent-Tahsildar and respondent-Village Officer that all illegal transactions should be prohibited in respect of the land involved in TLB No.627/73/TPA and that the respondent-Tahsildar is authorised to ensure that the land is not included in the aforesaid Taluk Land Board case on the file of the Taluk Land Board, Taliparamba. Ext.P-4 is the letter dated 2.12.2005 issued by the 1[st] respondent-District Collector in that regard to the 2[nd] respondent-Tahsildar. 5. The petitioner would state that the land owned and possessed by them as per Ext.P-1 registered sale deed is also covered by Ext.P-3 certificate is not owned and possessed by Haridasan Namboodiri at any point of time for which the petitioners would place reliance on Exts.P-6 & P-7. Ext.P-6 is the report dated 22.6.2018 issued by the 3[rd] respondent-Village Officer ::5:: ## **WP(C).No.3645 of 2019** wherein it is stated that as per the records, the lands are traceable to the erstwhile jenmi, Sankaradasan Namboodiri, but that in the 'A' register, the name of the jenmi in respect of the property in R.S.No.21/1 is shown as one Haridasan Namboodiri, who is the declarant in respect of the impugned land ceiling proceedings in TLB 627/73/TPA on the file of the TLB, Taliparamba. The petitioners had also approached the Public Information Officer attached to the 2[nd] respondent-Tahsildar to disclose the details of the properties held by Haridasan Namboodiri, the declarant in TLB 627/73/TPA and in response thereof the Public Information Officer attached to the 2[nd] respondent-Tahsildar has issued Ext.P-7 letter dated 1.1.2019 under the RTI proceedings informed that though an extent of 5.54 acres of land comprised in Sy.No.21/1 of Panniyoor Village was taken over as excess land in compliance with the orders of the Taluk Land Board in TLB 627/73/TPA, it is not known as to on the basis of which document that the said lands were owned and possessed by Haridasan Namboodiri. On the basis of Exts.P-6 & P-7, the petitioners would point out that it is not in dispute that erstwhile jenmi in respect of petitioners' property is one Sankaradasan Namboodiri and that it would have been only by mistake some entries have been made in the 'A' ::6:: ## **WP(C).No.3645 of 2019** register that the jenmi in respect of the property is Haridasan Namboodiri, who is the declarant in the impugned TLB 627/73/TPA. Further that Ext.P-7 would show that even the petitioners are not aware on the basis of which document that excess lands of Haridasan Namboodiri, the declarant in TLB 627/73/TPA had earlier obtained the said excess lands. The prime contention urged by the petitioner is that it is beyond any dispute that the petitioners' vendor had secured the property covered by Ext.P-1 on the basis of Ext.P-3 purchase certificate No.7965/76 dated 17.12.1976 issued by the Land Tribunal, Taliparamba. Sec.72K(2) of the Kerala Reforms Act mandates that _Certificate of Purchase issued as above, shall be conclusive proof of the assignment to the tenant of the right, title and interest of the land owner and the intermediaries, if any, over the holding or portion thereof to which the_ _assignment relates_ . It has been held in various decisions as in _**Cheeranthoodika Ahammedkutty & anr. V Parambur Mariakutty**_ _**Umma & Ors**_ **,** reported in (2000) 2 SCC 417, _**Lakshmi v. Viswanathan**_ , reported in 1999 (2) KLT 621 etc., that where an enactment in the nature of Sec.72K(2) of the Kerala Land Reforms Act has mandated that any evidence would be treated as conclusive proof of certain factual situation or legal hypothesis, the ::7:: **WP(C).No.3645 of 2019** law would forbid other evidence to be adduced for the purpose of contradicting or varying the aforesaid conclusiveness. This is the principle embodied in Sec.4 of the Evidence Act when it defined “ _conclusive proof_ ”. This Court in the judgment in the case _**Ramakke v. Gopi**_ , reported in 2011(4) KLT SN 76 (C.No.80) has held that Sec.72K(2) of the KLR Act provides that Certificate of Purchase issued to a tenant after filing 'J' Form, suit for partition filed by the claimants without challenging the purchase certificate on the ground of fraud and without declaration of title, is not maintainable. A Full Bench of this Court in the case in _**Govinda Pillai v. Taluk Land Board**_ , reported 1991 (2) KLT 880 (FB) has held that when part of a larger holding included in a survey number is directed to be surrendered, it is the duty and obligation of the Taluk Land Board to clearly identify the area which is to be surrendered taking into account the option of the declarant as well. Sec.85(5) (c) requires the Taluk Land Board to determine not merely the extent of land to be surrendered but also its identity. This is also reiterated in Rule 13 of the Kerala Land Reforms (Ceiling) Rules that the Taluk Land Board is bound to identify the portion of the larger holding which is to be surrendered otherwise the position will be that it will be left to the Tahsildar who is to effectuate the surrender to take ::8:: **WP(C).No.3645 of 2019** possession of such area as he desires at his will and pleasure and the statute does not give such an option to the Tahsildar and the Taluk Land Board cannot abdicate it s function of identifying the land to be surrendered by proper demarcation. 6. The Apex Court in a very recent judgment rendered on 22.1.2019 in C.A.Nos.10075 & 10076 of 2014 in the case in _**State of Kerala v. Mohammed Basheer**_ , reported in 2019 (1) KLT 386 (SC) has held in para 19 thereof that possession and title under certificate of purchase have to relate back to a date prior to the date of vesting under the Land Reforms Act, i.e, 1.4.1964. Further that purchase certificate issued under Sec.72K(1) of the Kerala land Reforms Act is attributed with statutory conclusiveness as regards ownership/title by virtue of the mandate of Sec.72K(2) and the purchase certificate issued by the competent Land tribunal after finding that the tenant was in possession of the property as a cultivating tenant is a conclusive proof of possession as well. 7. In the light of the aspects strongly urged by Sri.Geroge Mecheril, learned counsel for the petitioner, so long as Ext.P-3 purchase certificate is not reversed or altered in the manner known to law, it is not open to the respondents as well as the Taluk Land Board to contend that the lands of the petitioners covered by Ext.P-1 sale ::9:: **WP(C).No.3645 of 2019** deed, which is traceable to Ext.P-3 can in any manner linked with the land ceiling proceedings relating to excess land of a declarant that any such plea that may be taken by the respondents and the Taluk Land Board would be self contradictory and logically fallacious. In the light of these aspects, this Court is of the considered view that the 4[th] respondent will not be justified in placing any obstacles on the path of the petitioners to alienate the property covered by Ext.P-1 registered sale deed to any third party and any such sale deed that may be executed by the petitioner in respect of Ext.P-1 deed is liable to be registered by the 4[th] respondent if it is otherwise in order and subject to payment of applicable stamp duty and registration fee for such transaction. However, any such execution and registration of sale deed by the petitioners in favour of a third party will not by itself prejudice the competent authority among the respondents and the Taluk Land Board from proceeding as against the subject property on the basis of any lawful proceedings provided it is otherwise justified and warranted on facts and law and also provided that due procedure thereof is rigorously complied with. However, this Court would caution the respondents as well as the Taluk Land Board that before any such adverse proceedings are contemplated against the subject property of the land holders concerned, then the authorities ::10:: **WP(C).No.3645 of 2019** concerned should bear in mind the impact of statutory conclusiveness of purchase certificate issued under Sec.72K(1) of the Kerala Land Reforms Act and if the property covered by Ext.P-1 is traceable to Ext.P-3 purchase certificate, the impact of the conclusiveness mandated under Sec.72K(2) of the Kerala Land Reforms Act should be carefully borne in mind by those authorities. So also the specific contention of the petitioners that the land of the petitioners covered by Ext.P-3 purchase certificate cannot in any manner be even linked with any land ceiling proceedings should also be carefully borne in mind, so that unnecessary proceedings are not initiated against the petitioners in respect of the subject property. Accordingly, it is ordered that it is for the petitioners to present the sale deed concerned in respect of the property covered by Ext.P-1 deed before the 4[th] respondent for registration upon which the 4[th] respondent will register the same if it is otherwise in order provided that applicable stamp duty and the registration fee is duly remitted in respect of such transaction. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::11:: **WP(C).No.3645 of 2019** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF DOCUMENT NO.2869/1994 DATED 27.9.1994 DATED 27.9.1994 OF S.R.O., TALIPARAMBA.** - **EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT DATED 29.6.2018 ISSUED BY THE VILLAGE OFFICER.** - **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE OF PURCHASE NO.7965/76 DATED 17.12.1976 ISSUED BY THE LAND TRIBUNAL, TALIPARAMBA.** - **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED 2.12.2005 OF THE DISTRICT COLLECTOR.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE DISTRICT COLLECTOR.** - **EXHIBIT P6 TRUE COPY OF THE REPORT DATED 22.6.2018 OF THE VILLAGE OFFICER.** - **EXHIBIT P7 TRUE COPY OF THE INFORMATION FURNISHED BY THE STATE PUBLIC INFORMATION OFFICER ON 1.1.2019.** **EXHIBIT P8 TRUE COPY OF THE HEARING NOTICE DATED 19.09.2018.** **EXHIBIT P9 TRUE COPY OF ORDER DATED 7.4.1987 IN TLB.NO.627/73/TPA.**