Joby Mathew v. State of Kerala and Others

## **(C.R)** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940** **WP(C).No. 17443 of 2017** ## **PETITIONER:** **JOBY MATHEW AGED 37, S/O. MATHEW,URUMBITHADATHIL HOUSE,MURIYAD P.O, MURIYAD VILLAGE, THRISSUR DT. PIN - 680 125.** **BY ADVS. SRI.SAIJO HASSAN SMT.P.PARVATHY SRI.RAFEEK. V.K. SRI.VISHNU BHUVANENDRAN** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO**| ||**GOVERNMENT,DEPARTMENT OF REVENUE,**| ||**SECRETARIAT,THIRUVANANTHAPURAM - 695 001.**| |**2**|**DISTRICT COLLECTOR**| ||**THRISSUR - 680 003.**| |**3**|**ADDITIONAL TAHSILDAR**| ||**MUKUNDAPURAM TALUK OFFICE, IRINJALAKUDA - 680**| ||**121.**| ## **W.P.(C)No.17443 of 2017** **==> picture [18 x 6] intentionally omitted <==** **4 VILLAGE OFFICER MURIYAD - 680 683.** - **5 SUB REGISTRAR KALLETTUMKARA, IRINJALAKUDA, THRISSUR DT.** **SRI.SAIGI JACOB PALATTY, SR.GOVT. PLEADER.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)No.17443 of 2017** ..3.. ## **ALEXANDER THOMAS,J.** ## **=========================== W.P.(C)No.17443 of 2017** **===========================** Dated this the 16[th] day of November,2018 ## **J U D G M E N T** The prayers in the above Writ Petition (Civil) are as follows: _**“i) “To issue a Writ of mandamus or any other appropriate writ or order or direction directing the respondents to transfer the registry in the name of the petitioner pursuant to Ext.P1 registered sale deed within a time frame fixed by this Hon'ble Court;**_ _**ii) To grant such other and further reliefs as are just, proper and necessary in the facts and circumstances of the case.”**_ _**2.**_ Heard Sri.Saijo Hassan learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the respondents. 3. The petitioner had approached the 4[th] respondent Village Officer, seeking transfer of registry in respect of the property concerned in his name on the basis of Ext.P1 registered sale deed dated 07.05.2015, of SRO Kallettumkara. The petitioner had purchased the said property covered by Ext.P1 sale deed from one Smt.Sharadha. The matter was referred to 3[rd] respondent Additional Tahsildar, who has taken the objection that the transfer ## **W.P.(C)No.17443 of 2017** ..4.. of the property in favour of the petitioner as per Ext.P1 sale deed dated 07.05.2015 has been made in violation of the specific conditions in Ext.P3 patta, wherein it is stipulated that the land is not alienable. It appears that the property covered by Ext.P1 sale deed was the one covered by Ext.P3 patta issued to the original pattadhar concerned, and later, the petitioner had obtained the said property as per the above said sale deed. 4. The 3[rd] respondent Additional Tahsildar, has filed statement dated 23.09.2017 in the matter. It is stated that the land was formally assigned to Smt.Sharadha, W/O.Thooyath Unnikrishnan as per patta No.C4-16024/83 dated 26.10.83 (Ext.P-3), issued by the Tahsildar Mukundapuram on the condition that the land shall not be alienated. Ext.P3 is the copy of the said patta, wherein, apart from the five printed conditions appended thereunder, there is the 6[th] additional condition made by written endorsement which reads as follows. ## " _**"**_ **സല� ക�മ�റ� ച�യ�ൻ അധ���രമ�ല�** Therefore, it is contended that the transfer of property made in favour of the petitioner as per Ext.P1 is against the specific **W.P.(C)No.17443 of 2017** ..5.. conditions imposed in the patta as per Ext.P3, and therefore, the request for transfer of registry cannot be entertained, etc. 5. In the counter statement filed counter statement dated 23.9.2017, filed by the 3[rd] respondent the impugned action is sought to be justified on the basis of the averments and contentions raised in paragraphs 3 to 5 of the said counter statement, which read as follows: _“3. It is submitted that earlier as per the S.8(1) of Kerala Land Assignment Rules, 1964, “Lands granted or registry shall be heritable and alienable” and as per 8(IA) of Kerala Land Assignment Act “ Notwithstanding anything contained in sub rule (1), unoccupied lands assigned on registry shall not be alienable for a period of three years from the date of registry”. But amending this, Government had issued an order No. G.O.(P) No.49/09/RD dated 24/01/2009 that assigned land shall not be alienable for a period of 25 years from the date of Registry. Revenue Principal Secretary issued a clarification vide letter No.2184/P1/2010/Rev. dated 12/04/2010 that the amendment would have effect only from the date of amendment order, ie, it will not be retrospective effect. The clarification reveals that the Patta is issued before 24/01/2009 will be transferable as per conditions stated in the Patta and the Patta issued after 24/01/2009 will be transferable only after 25 years. In this case the transaction occurred on 07/05/2015 and Pattayam issued on 26/10/1983. So the condition on the Patta only can be considered in this transaction. The Additional Tahsildar has no power to effect the mutation in this case._ _4. As per the Government Order No. G.O.(P) No.49/ 09/RD dated 24/01/2009, the Patta issued before 24/01/2009 will be transferable as per the conditions stated in the Patta and in the case of Patta issued after 24/01/2009 will be transferable only after 25 years. In this case Patta issued on 26/10/1983 so that the condition stated on the Patta only can be considered. Revenue Principal Secretary issued a clarification vide letter No.2184/P1/ 2010/Rev. dated 12/04/2010 about the G.O.(P) No.49/09/RD dated 24/01/2009 that the Patta issued before 24/01/2009 will be transferable only as per the condition stated in the Patta and issuing Patta after 24/01/2009 will be transferable only after 25 years._ ## **W.P.(C)No.17443 of 2017** **==> picture [18 x 8] intentionally omitted <==** _The condition No.6 shown in Pattayam is violated by the Pattadar and she sold the property to the petitioner as per Deed No. 1437/1/15 dated 07/05/2015 of Sub Registrar Kalletumkara. In this case there is no negligence from the part of the respondents. The respondents strictly followed the existing directions and rules as per the Law in Force.”_ 6. From a perusal of the pleadings in the counter statement, it can be seen that it is stated therein that as per Rule 8(1) of the Kerala Land Assignment Rules, 1964, as it stood then, lands granted on registry shall be heritable and alienable and as per Rule 8(1A) thereof notwithstanding anything contained in subrule (1) of Rule 8, unoccupied lands assigned on registry though heritable, shall not be alienable for a period of 3 years from the registry. Later the said provisions were amended as per G.O(P).No. 49/2009/RD dated 24.1.2009, as per SRO No.59/2009 published in Kerala Gazette dated 24.1.2009, wherein it has been provided that in sub rule (1) of Rule 8, for the words, “ _and alienable_ ”, the words, “ _but not alienable for a period of twenty five years from the date of registry_ ” were notified to be substituted, etc. The said amendment made as per SRO No.59/2009 published in the Kerala Gazette dated 24.1.2009 was ordered to come into force only prospectively from the date of publication of the said amendment notification dated 24.1.2009. This Court in the judgment _**Bhaskaran P.R. v.**_ **W.P.(C)No.17443 of 2017** ..7.. _**State of Kerala**_ , reported in 2010 KHC 6210 = 2010 (2) KLT 908 has held that the abovesaid amendment of Rule 8(1) of the Kerala Land Assignment Rules, made as per SRO No.59/2009 has only prospective effect from 24.1.2009 and will only regulate pattas issued on or after 24.1.2009 and will not govern and regulate pattas issued prior to 24.1.2009, which will be regulated by the provisions of the earlier rules. The Government has also clarified the same position as per Government letter No.2184/PI/10/Rev. dated 12.4.2010 that the amendment would have effect only from the date of amendment,viz. will have effect only from the date of amendment, 24.1.2009, and will not have retrospective effect and further that the pattas issued before 24.1.2009 will be transferable as per the conditions stated in the patta and pattas issued after 24.1.2009 will be transferable only after 25 years. Certain other amendments have also been made in Rule 8(1) of the Kerala Land Assignment Rules, 1964. For instance, it can be seen that as per SRO No.607/2014 notified as per G.O(P). 425/2014/RD dated 30.9.2014 published in Kerala gazette dated 7.10.2014, the said provision in rule 8(1) was again amended and for the words, “ _but not alienable for a period of 25 years from the date of registry_ ”, **W.P.(C)No.17443 of 2017** ..8.. were notified to be substituted for the words, “ _and alienable_ ”. Later it appears that rules have again been amended and as per SRO No.621/2017 issued as per G.O(P). 60/20/2017/RD dated 17.8.2017 published in Kerala Gazette dated 10.10.2017, the restriction in the matter of alienability has been made for a period of 12 years. The said amendments are all prospective in nature. 7. So it is now well settled on the basis of the dictum laid down by this Court in _**Bhaskaran's case**_ supra, reported in 2010 (2) KLT 908, that the amendment made to Rule 8(1) as per SRO No.59/2009 made effective from 24.1.2009 restricting alienation for a period of 25 years, has got only prospective effect only from 24.1.2009. So the patta issued in the instant case as per Ext.P-3 dated 26.10.1983 will be essentially governed by the conditions in the Kerala Land Assignment Act, 1960 and the rules framed thereunder, as it stood at the time of issuance of Ext.P-3 patta dated 26.10.1983. The 3[rd] respondent would contend that in view of the additional written endorsement made as per condition No.6 in Ext.P-3, the land in question is not alienable, even though the provisions in the Kerala Land Assignment Rules, 1964, as stood at the time of Ext.P-3 patta dated 26.10.1983 had permitted **W.P.(C)No.17443 of 2017** **==> picture [18 x 9] intentionally omitted <==** alienability of the said land. 8. The issue to be decided is to whether the land covered by Ext.P-3 patta dated 26.10.1983 is alienable going by the clear provisions in that regard in Rule 8(1)of the Kerala Land Assignment Rules, 1964, as it stood at the time of issuance of that patta or whether it is not alienable in view of the specific written endorsement made by respondent Tahsildar as condition No.6 of Ext.P-3. Sec. 8 of the Kerala Government Land Assignment Act, 1960 provides as follows: _**“Sec. 8: Assignment to take effect with restrictions, conditions, etc. according to their tenor.-** All the provisions, restrictions, conditions and limitations contained in any Pattah or other document evidencing the assignment of Government land or of any interest therein shall be valid and take effect according to their tenor, notwithstanding any law for the time being in force or any custom or contract to the contrary._ _Explanation.-- In this section, the expression "Government land" shall include land under the control or management of the Government at the time of the assignment.”_ Sec.8 stipulates that all provisions restrictions, conditions and limitations contained in any Pattah or other document evidencing the assignment of Government land or of any interest therein shall be valid and take effect according to their tenor, notwithstanding **W.P.(C)No.17443 of 2017** ..10.. any law for the time being in force or any custom or contract to the contrary. It has been held by this Court in the judgment in _**Gopi v. District Collector**_ , reported in 1992 (2) KLT 605 = 1992 (2) KHC 406 that in view of the non abstante clause in Sec.8 restrictions contained in the assignment should prevail notwithstanding anything in the Transfer of Property Act. However, the said decision has been rendered by this Court considering the impact of Sec. 8 of the Kerala Land Assignment Act, 1960, vis-a-vis the Transfer of Property Act. However, it has to be noted that Sec. 7(1)(j) of the Kerala Govt. Land Assignment Act, 1960 expressly enables the Government to make rules prescribing restrictions, limitations and conditions subject to which an assignment can be made in any case or class of cases. So the subordinate legislation framing authority has been expressly empowered as per Sec.7(1)(j) to make subordinate legislative provisions as per statutory rules for prescribing the restrictions, limitations and conditions subject to which an assignment can be made in any case or class of cases. Whereas Sec. 8 of the same Act also provides that all the provisions, restrictions, conditions and limitations contained in any Pattah or other document evidencing **W.P.(C)No.17443 of 2017** ..11.. the assignment of Government land or of any interest therein shall be valid and take effect according to their tenor, notwithstanding any law for the time being in force or any custom or contract to the contrary. Once the subordinate legislation framing authority enters the field and makes subordinate legislative instrument as per the statutory rules, as in the Kerala Land Assignment Rules, 1964 and it is expressly provided in Rule 8(1) thereof that such lands are, not only heritable but also alienable, can the patta granting authority like the Tahsildar/collector/executive Government invoke the provision in Rule 8 and stipulate in the patta by way of conditions as per Sec. 8 of the Act that the land in question shall not be alienable even if the subordinate legislative instrument clearly provides that such lands shall, not only be heritable but also alienable? The answer to this question is dependent on the expression “any law” appearing in Sec. 8 of the Kerala Government Land Assignment Act, 1960. If it is held that such conditions imposed by the patta granting authority as per Sec. 8 would even override the explicit provisions contained in the Kerala Land Assignment Rules, 1964, framed under Sec. 7(1)(j) of the very same Act, then the contention raised by the 3[rd] respondent in his **W.P.(C)No.17443 of 2017** **==> picture [22 x 6] intentionally omitted <==** counter statement could be tenable, etc. Where the subordinate legislation framing authority enters the field and frames a subordinate legislative instrument by way of statutory rules under Sec.7(1)(j) and provides a stipulation in Rule 8(1) of the Kerala Land Assignment Rules, 1964 that the land in question shall, not only be heritable but also alienable, then the discretion of the patta granting authority under Sec.8 to provide for a condition in the patta to override the said statutory rule, will vanish. If the interpretation placed by the 3[rd] respondent that the patta condition as per Sec. 8 could be invoked by the patta granting authority even in violation of the provisions contained in Rule 8(1) of the Kerala Land Assignment Rules, 1964 is accepted, then it will amount to permitting the patta granting authority to abridge and violate the said legislative instrument contained in Rule 8(1) of the Kerala Land Assignment Rules. Such an interpretation would be against the basic cannons of interpretation and it has to be only held that the expression, “ _any law_ ” appearing in Sec. 8 should be any law other than the Kerala Government Land Assignment Act, 1960 and the statutory rules framed thereunder. 9. It is also to be noted that sub section (3) of Sec. 7 **W.P.(C)No.17443 of 2017** ..13.. mandates that all rules made under the act shall be laid for not less than 14 days before the Legislative Assembly, as soon as possible as they are made and shall be subject to such modifications as the Legislative Assembly may make during the session in which they are so laid or in the immediately following session. So the statutory rules framed under Sec. 7(1) will certainly have the character and quality of a Legislative instrument and such legislative norms prescribed by that instrument will certainly override the discretionary powers to be exercised by the executive patta granting authority while laying down patta conditions as per Sec. 8. The legislative nature of the norms framed under Sec. 7(1) is all the more fortified by the provisions in Sec. 7(2) which mandate that rules made thereunder when published in the Gazette, will have the force of law, ie. legislative norms. The upshot of the above discussion is that the right of alienation conferred on the assignee as per Rule 8 framed by the subordinate legislature under Sec. 7(1) (j) of the Act, which is approved by the Legislature as per Sec. 7(2), cannot be taken away by the patta granting authority by stipulating a contra condition in terms of Sec. 8 of the Act. ..14.. ## **W.P.(C)No.17443 of 2017** 10. To sum up the question and the answer to the main issue are as follows: - **Qn:** _Can the patta granting authority like the Tahsildar/ collector/ executive Government invoke the provision in Rule 8 and stipulate in the patta by way of conditions as per Sec. 8 of the Act that the land in question shall not be alienable even if the subordinate legislative instrument clearly provides that such lands shall, not only be heritable but also alienable?_ - _**Ans:** The right of alienation conferred on the assignee as per Rule 8 framed by the subordinate legislature under Sec. 7(1)(j) of the Act, which is approved by the Legislature as per Sec. 7(2), cannot be taken away by the patta granting authority by stipulating a contra condition in terms of Sec. 8 of the Act._ 11. So the net effect is that so long as the statutory rules are silent about alienability, then the patta granting authority could exercise its power under Sec. 8 and provide for a suitable condition in the matter of alienation. However, when a statutory prescription is made as per Rule 8(1) that the patta is heritable and alienable, then no contra prescription can be made by the patta granting authority in terms of Sec. 8. The patta granting authority cannot impose any conditions by invoking the power under Sec.8, which would amount to abridgment or violation of the specific provisions contained in the Kerala Land Assignment Rules. Accordingly, it is only to be held that the contention raised by the 3[rd] respondent **W.P.(C)No.17443 of 2017** **==> picture [22 x 8] intentionally omitted <==** that even though the patta was alienable going by the provisions contained in the Kerala Land Assignment Rules, 1964, as per Rule 8(1) as it stood at the time of issuance of Ext.P-3 patta dated 26.10.1983, the pattadhar cannot be alienate the property in view of the contra prescription made by the patta granting authority as an additional condition by way of written endorsement shown as condition No.6 of Ext.P-3, etc. is untenable and unsustainable. It is beyond dispute that at the time of issuance of Ext.P-3 patta dated 26.10.1983, the land in question was, not only heritable but also alienable by the express prescription in Rule 8(1). Rule 8(1A) provides that where the land in question pertains to unassessed lands, then it shall not be alienated for a period of 3 years therefrom. The respondents have no case that the land covered by Ext.P-3 patta is pertaining to unassessed land as envisaged in Rule 8(1A). Even if it is so assumed, the period of restriction against alienation for 3 years has expired from 3 years from 26.10.1983. The instant transfer of property as per Ext.P-3 registered sale deed has been effected only on 7.5.2015. So the transfer of the property covered by Ext.P-3 patta dated 26.10.1983 as per Ext.P-1 registered sale deed dated 7.5.2015 in favour of the petitioner is **W.P.(C)No.17443 of 2017** **==> picture [22 x 8] intentionally omitted <==** lawful and proper, going by the prescription in the abovesaid statutory provisions. Hence the contention of the 3[rd] respondent that the property was transferred as per Ext.P-1 in violation of Ext.P-3 patta condition, etc. is legally untenable and wrong. 12. Accordingly, it is ordered that the impugned refusal of the requests on the part of the 3[rd] respondent to mutate the property covered by Ext.P-1 sale deed in favour of the petitioner and for acceptance of basic land tax from the petitioner, etc. are illegal and ultra vires. The request of the petitioner will stand remitted to the 3[rd] respondent for consideration afresh, in the light of the abovesaid findings and observations made by this Court hereinabove. The 3[rd] respondent will afford a reasonable opportunity of being heard to the petitioner and consider the requests of the petitioner for grant of mutation and acceptance of basic land tax and grant such request if it is otherwise in order. It is made clear that the 3[rd] respondent cannot refuse the said request on the ground that property has been transferred to the petitioner as per Ext.P-1 in violation Ext.P-3 patta condition, which stand has already been held to be illegal and ultra vires. The 3[rd] respondent will also take into account that the petitioner having obtained the ..17.. ## **W.P.(C)No.17443 of 2017** property on the basis of Ext.P-1 sale deed, is the assignee of the land owner concerned and that the competent Revenue officials are statutorily obliged as per Sec. 5(2) of the Kerala Land Tax Act, to accept basis land tax from the land holder as understood in Sec. 3(3) of the Kerala Land Tax Act, 1961. It has to be borne in mind that the petitioner is the assignee of the previous title holder and therefore he would fulfill the definition of “ _land holder_ ” as understood in Sec. 3(3)(d) of the Kerala Land Tax Act. The decision on the abovesaid request of the petitioner should be duly rendered by the 3[rd] respondent without much delay, preferably within a period of one month from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** PR/16.11.2018 sdk+ ..18.. ## **W.P.(C)No.17443 of 2017** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE SALE DEED DATED 7.05.2015.** - **EXHIBIT P2 TRUE COPY OF THE BASIC TAX RECEIPT DATED 3.10.2016 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE PATTA ISSUED TO THE PETITIONER'S PREDECESSOR IN THE YEAR 1983. EXHIBIT P4 TRUE COPY OF THE ORDER IN WPC NO. 6594/2016 PASSED BY THIS HONOURABLE COURT.**