Kaniyamma Immanual Cottage & Margret W.O. Japamani Chellamma Cottage v. Village Officer, Chinnakkanal Village; Special Tahsildar, Udumbanchola Taluk; District Collector, Idukki

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940** ## **WP(C).No. 18663 of 2017** ## **PETITIONER/S:** **1 KANIYAMMA IMMANUAL COTTAGE, 60 ACRE COLONY, CHINNAKKANAL P.O, UDUMBANCHOLA TALUK, DIST. IDUKKI. 2 MARGRET WO.JAPAMANI CHELLAMMA COTTAGE, CHINNAKKANAL P.O, UDUMBANCHOLA TALUK, DIST. IDUKKI. BY ADVS. SRI.K.REGHU KOTTAPPURAM SRI.M.MUKESH SRI.MURUKESH REGHU SRI.R.MAHESH (KOTTAPPURAM)** ## **RESPONDENT/S:** **1 THE VILLAGE OFFICER CHINNAKKANAL VILLAGE, UDUMBANCHOLA TALUK, DIST. IDUKKI - 685 554. 2 THE SPECIAL TAHASILDAR L.A RAJAKUMARI, RAJAKKAD P.O., UDUMBANCHOLA TALUK, DIST. IDUKKI - 685 554. 3 THE DISTRICT COLLECTOR IDUKKI DISTRICT, IDUKKI -685 553.** **SRI.JESTIN MATHEW, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2019, A/W. WPC 5383/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY ,THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940** ## **WP(C).No. 5383 of 2019** ## **PETITIONER/S:** **1 KANIYAMMA, AGED 65 YEARS W/O LATE GEORGE,IMMANUAL COTTAGE, 60 ACRE COLONY,CHINNAKKANAL.P.O, UDUMBANCHOLA TALUK,DIST.IDUKKI. 2 MARGARET, AGED 1 YEARS W/O JAPAMANI,CHELLAMMA COTTAGE, CHINNAKKANAL.P.O,UDUMBANCHOLA TALUK,DIST.IDUKKI.** **BY ADVS. SRI.K.REGHU KOTTAPPURAM SRI.M.MUKESH SRI.MURUKESH REGHU SRI.R.MAHESH (KOTTAPPURAM)** ## **RESPONDENT/S:** - **1 THE VILLAGE OFFICER,CHINNAKKANAL VILLAGE,UDUMBANCHOLA TALUK,DIST.IDUKKI,PIN-685554.** - **2 THE TAHSILDAR, UDUMBANCHOLA TALUK, NEDUMKANDAM.P.O,DIST.IDUKKI-685556.** - **3 THE DISTRICT COLLECTOR, IDUKKI DISTRICT,IDUKKI685553.** ## **OTHER PRESENT:** **SRI.JESTIN MATHEW, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2019, ALONG WITH WPC 18663/17 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ## ================== W.P.(C).Nos.18663/2017 & 5383/2019 ================== Dated this the 26[th] day of February, 2019 ## **J U D G M E N T** The petitioners in both the Writ Petitions are same persons. 2. The prayers in W.P.(C).No. 18663/2017 are as follows: - _“(i) Issue a Writ of Mandamus or any other appropriate Writ commanding 2[nd] respondent to make necessary endorsement in Exhibit P-1 and P-6 pattas submitted by the petitioners in order to remove the condition in the pattas barring alienation of land with retrospective effect in the light of Exhibit P-10 amended Rule as done in the identical cases forthwith._ - _(ii) Issue a Writ of Mandamus or any other appropriate Writ directing the 1[st] respondent to effect mutation of the land vide Exhibit P-1 and P-6 in the Village records by opening Thandaper account in the names of the petitioners followed by issuance of Land Tax receipt to the petitioners upon 2[nd] respondent making endorsement in Exhibit P-1 and P-6 patta removing the condition against alienation of land._ - _(iii) Issue any other appropriate Writ deemed fit and proper in the circumstances of the case._ - _(iv) Award cost of the petition.”_ 3. Subsequently, the petitioners in W.P.(C).No. 18663/2017 ## have filed W.P.(C).No. 5383/2019 with the following prayers: - _“(i) Issue a Writ of Mandamus directing the respondents 1 and 2 to effect mutation of 0.1530 Hector of land comprising in Re-survey No.33/10, 13 in Block No.VI of Chinnakkanal Village in Udumbanchola Taluk vide Exhibit P-1 Patta issued assigning the land in the name of husband of 1[st] petitioner namely deceased George, to the name of the 1[st] petitioner under Transfer of Registry Rules 1966 and to issue Land Tax Receipt in the name of 1[st] petitioner for the entire period in the past._ - _(ii) Issue a Writ of Mandamus directing respondents 1 and 2 to issue Land Tax receipt in respect of 0.0320 Hectors of land comprising in Sy.No. 33/12 in Block No. VI of Chinnakkanal Village in Udumbanchola Taluk vide Exhibit P-3 Patta issued to the 2[nd] petitioner covering the entire previous years._ - _(iii) Issue any other appropriate Writ deemed fit and proper in the circumstances of the case._ W.P.(C).18663/17 & 5383/19 - : 4 :- _(iv) Award cost of the petition.”_ 4. Heard Sri.K.Reghu Kottappuram, learned counsel appearing for the petitioners in these cases and Sri.M.R.Dhanil, learned Government Pleader appearing for the respondents in these matters. 5. The deceased husband of the 1[st] petitioner and the 2[nd] petitioner have been granted assignment of the subject properties as per Exts.P1 and P-3 pattas respectively issued under the provisions of the Kerala Land Assignment (Regularization of Occupation of Forests Lands prior to 1.1.1977) Special Rues, 1993, framed under the enabling provisions contained in the Kerala Government Land Assignment Act, 1960. The abovesaid rules were promulgated as per SRO 433/93 as per the Kerala Gazette notification dated 19.3.1993. Rule 15, as it originally stood in the abovesaid Rules as well as condition No.3 in the abovesaid pattas stipulated that the subject properties are not alienable. Rule 15 of the abovesaid Rules as it stood at the time of coming into force of the 1993 Rules, on 19.3.1993 reads as follows: _“15. Lands assigned to be heritable but not alienable except in certain cases.- (1) The lands assigned under these Rules shall be heritable but shall not, subject to sub rule (2) be alienable. (2) The assignee may mortgage the land to the Government, Co-_ W.P.(C).18663/17 & 5383/19 - : 5 :- _operative Institutions, Tea Board, Coffee Board or the Rubber Board or any other Institutional Credit Agencies as Security for obtaining loans for agricultural and land improvement purposes or constructions or repair of houses under any housing scheme sponsored by Government or for improvement of the business of the assignee._ _Explanation:- For the purpose of this clause “Institutional Credit Agencies” means Public Sector banks, Regional Rural Banks, State Co-operative Bank, Central Co-operative Bank, Primary Co-operative Society, Government owned or controlled Companies and Corporations and such other Institutions as the Government may specify in this behalf._ ” 6. Later the rule making authority has amended the provisions contained in abovesaid Rule 15 as per gazette notification dated 16.11.2011, but with retrospective effect from 19.3.1993 (original promulgation of the 1993 Rules), whereby it was mandated that the assigned lands under those rules are not only heritable but also alienable, subject to condition that the alienated land shall not be used for any purpose other than those specified in Rule 13. Rule 15 as amended with retrospective effect, provides as follows: _**“Rule 15: The lands assigned to be heritable and alienable.-** The lands assigned under these rules shall be heritable and alienable, subject to the condition that the alienated land shall not be used for any purpose other than those specified in Rule 3.”_ So the restriction against the alienation of the patta lands as per the Special Rules has been taken away with retrospective effect. But it appears that condition No.3 in the patta has not been effaced or deleted. This Court has held in a series of cases as in the judgment dated 28.7.2015 in W.P.(C).No. 19367/2015 and judgment dated W.P.(C).18663/17 & 5383/19 - : 6 :- 18.11.2013 in W.P.(C).No. 21203/2013 [produced as Exts.P-11 and P- 12 in W.P.(C).No.18663/2017], that in view of the abovesaid retrospective amendment the petitioners can seek substitution of the condition in the patta so as to be in tune with amended Rule 15. 7. Accordingly, it is only to be ordered that the abovesaid conditions in pattas have become rather redundant and it is patently against the amended provisions of Rule 15 and the respondents, more particularly the respondent Tahsildar (Land Acquisition) is bound to ensure that necessary endorsement is made in the original of the pattas so that the right of alienation of the said property is endorsed so as to be in tune with the provisions contained in Rule 15 of the Special Rules, 1993, as amended with retrospective effect. 8. Therefore, the abovesaid grievance of the petitioners regarding condition No.3 in the patta restricting the right to alienation will stand redressed as above, in view of the retrospective amendment of Rule 15 of the 1993 Rules. 9. The next complaint of the petitioners is that it has been endorsed in the said pattas that the same has been granted subject to the final decision of the Apex Court in the pending SLP, etc. The W.P.(C).18663/17 & 5383/19 - : 7 :- validity of 1993 Rules was challenged before this Court in the case in _**Nature Lovers Movement v. State of Kerala & Ors.**_ by filing O.P.No. 14276/1993] before this Court. A Full Bench of this Court of this Court in the judgment dated 7.10.1999 in the said case, reported in 2000 (1) ILR Ker. 677, has upheld the validity of such rules and certain directions have been issued therein. Being aggrieved by the said judgment of the Full Bench of this Court, the parties concerned had filed SLP (C). before the Apex Court, which led to the institution of Civil Appeal No.2116/2000, in which judgment was rendered by the Apex Court on 20.3.2000 in the case in _**Nature Lovers Movement v. State of Kerala & Ors**_ . [(2009) 5 SCC 373] and has substantially upheld the judgment of the Full Bench of this Court and has issued following directions in para 52 of the said judgment: _**“52.** In the result, the appeal is disposed of in the following terms:_ _(1) The policy decision taken by the Government of Kerala to assign 28,588.159 ha of forest land to unauthorised occupants/encroachers after seeking approval from the Central Government does not suffer from any legal infirmity and the High Court rightly declined to interfere with the said decision._ _(2) After the enforcement of the 1980 Act, neither the State Government nor any other authority can make an order or issue direction for dereservation of reserved forest or any portion thereof or permit use of any forest land or any portion thereof for any non-forest purpose or assign any forest land or any portion thereof by way of lease or otherwise to any private person or to any authority, corporation, agency or organisation not owned, managed or controlled by the Government except after obtaining prior approval of the Central Government._ W.P.(C).18663/17 & 5383/19 - : 8 :- _(3) Conclusion D recorded by the High Court in para 103 of the impugned judgment is legally unsustainable and is set aside._ _(4) As and when the State Government decides to assign 10,000 ha of forest land to unauthorised occupants/encroachers, it shall do so only after obtaining prior approval of the Central Government and the latter shall take appropriate decision keeping in view the object of the 1980 Act and the guidelines framed for regularisation of encroachments on forest land.”_ 10. Now that the S.L.P. /Civil Appeal, which is stated to be pending, as shown in the condition imposed in the pattas, has also been finally disposed by the Apex Court as early as on 20.3.2000. As per the abovesaid judgment, the said condition which only states about pendency, has lost relevance and the matters would be regulated by the abovesaid judgment of the Apex Court and therefore, no separate directions are to be issued by this Court for removal of any such conditions in view of the abovesaid aspects. 11. The substantial complaint of the petitioners is that the competent revenue officials like the 1[st] respondent Village Officer and the 2[nd] respondent Tahsildar have refused to accept basic land tax in respect of the subject properties covered by the abovesaid pattas. 12. Further it is seen that the husband of the 1[st] petitioner is no more. Further it is stated that the pattadhar of Ext.P-1 patta, Sri. George, who is the husband of the 1[st] petitioner Kaniyamma is now no more and the 1[st] petitioner seeks mutation, transfer of registry W.P.(C).18663/17 & 5383/19 **==> picture [30 x 9] intentionally omitted <==** of the subject property covered by Ext.P-1 patta in the name of all the legal heirs, for which they have produced Ext.P-10 [W.P.(C).No. 5383/2019] legal heir certificate dated 1.11.2017 issued by the respondent Tahsildar, which discloses the names and details of widow and children of the deceased George, who is the pattadhar of Ext.P-1. The 1[st] petitioner in W.P.(C).No. 5383/2019 seeks a direction from this Court to ensure that the subject property covered by Ext.P-1 patta is duly mutated in the name of the legal heirs of the deceased George and land tax should be accepted from them, etc. The 2[nd] petitioner also seeks directions from this Court to ensure that basic land tax is collected from her in respect of the subject property covered by her patta. 13. It is stated that after the issuance of the pattas, the properties have been duly mutated in the names of the respective pattadhars and the land tax was earlier accepted from them. Since the property has been mutated in the name of the 2[nd] petitioner and land tax was accepted from her, she is the registered land holder of the property in question as understood in Sec. 3(3)(d) of the Land Tax Act and therefore the 1[st] respondent Village Officer cannot refuse to accept basic land tax from her. So also, since the property covered by W.P.(C).18663/17 & 5383/19 - : 10 :- the other patta issued to the husband of the 1[st] petitioner was already mutated in his name and land tax has been accepted from the 1[st] petitioner and her children being the legal heirs of the deceased registered land holder, would fulfill the definition of “ _land holder_ ” as understood in Sec. 3(3)(d) of the Kerala Land Tax Act. ## 14. Accordingly following directions and orders are passed: - _(i) The 1[st] respondent Village Officer will take up the request of the 2[nd] petitioner Margret for acceptance of basic land tax in respect of the property covered by her patta and will grant the said request without any further delay and will issue basic land tax receipt to her for the arrear period in question without any further delay._ - _(ii) The 1[st] petitioner and other LRs of the deceased George will submit a proper application for grant of mutation, transfer of registry and acceptance of basic land tax in respect of the subject property covered by Ext.P-1 patta and the 1[st] respondent Village Officer will consider the said request for grant of mutation, transfer of registry and acceptance basic land tax of the 1[st] petitioner and other LRs of the deceased pattadhar and grant such request and will accept basic land tax from them for the arrear period in question and will issue land tax receipt to her forthwith._ - _(iii) Thereafter, the 1[st] petitioner and the 2[nd] petitioner may produce the original of the pattas before the 2[nd] respondent Tahsildar and necessary action may be made in those pattas to ensure that condition No.3 in the pattas may be struck off and necessary clarification may be made therein about the right of alienation of those pattadhars in view of the amended Rule 15. Necessary action should also be made by the 2[nd] respondent Tahsildar to ensure that the names of the LRs of the deceased pattadhar George are endorsed in his place in the patta granted to him_ W.P.(C).18663/17 & 5383/19 **==> picture [36 x 9] intentionally omitted <==** _(Ext.P-1)._ - _(iv) Orders and directions as per item Nos.(i) and (ii) should be duly complied with and completed by the 2[nd] respondent Tahsildar, without much delay, preferably within a period of 6 weeks from the date of submission of the application or request in that regard that may be made by the respective petitioners._ With these observations and directions, the Writ Petitions (Civil) stand finally disposed of. Sd/- sdk+ **ALEXANDER THOMAS, JUDGE** W.P.(C).18663/17 & 5383/19 - : 12 :- ## **WPC 18663/2017** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A PHOTOCOPY OF PATTA NO. LA 120/93(C) DATED 20.7.94 EXHIBIT P2 A PHOTOCOPY OF RECEIPT DATED 26.6.2004 ISSUED BY 1ST RESPONDENT EXHIBIT P3 A PHOTOCOPY OF DEATH CERTIFICATE DATED 19.6.2006 EXHIBIT P4 A PHOTOCOPY OF ELECTORAL I.D.CARD EXHIBIT P5 A PHOTOCOPY OF RECEIPT DATED 3.5.2017 EXHIBIT P6 A PHOTOCOPY OF PATTA NO. LA 121/93/C DATED 20.7.1994 EXHIBIT P7 A PHOTOCOPY OF LAND TAX RECEIPT DATED 14.5.2004 EXHIBIT P8 A PHOTOCOPY OF ELECTORAL I.D. CARD EXHIBIT P9 A PHOTOCOPY OF BUILDING TAX RECEIPT DATED 3.1.2013 EXHIBIT A PHOTOCOPY OF AMENDED RULE VIDE P10 G.O(P)NO.456/2010/RD DATED 16.11.2010 EXHIBIT A PHOTOCOPY OF JUDGMENT DATED 28.7.2015 IN WPC P11 NO.19367/2015 EXHIBIT A PHOTOCOPY OF ANOTHER JUDGMENT DATED 18.11.13 IN P12 WPC NO.21203/2013** W.P.(C).18663/17 & 5383/19 - : 13 :- WPC 5383/2019 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A PHOTOCOPY OF PATTA NO.LA 120/93(C)DATED 20.6.94. EXHIBIT P2 A PHOTOCOPY OF RECEIPT DATED 26-6-2004 ISSUED BY 1ST RESPONDENT. EXHIBIT P3 A PHOTOCOPY OF PATTA NO.LA 121/93/C DATED 207-1994 EXHIBIT P4 A PHOTOCOPY OF LAND TAX RECEIPT DATED 14-5-2004 EXHIBIT P5 A PHOTOCOPY OF BUILDING TAX RECEIPT NO.IV/103A. EXHIBIT P6 A PHOTOCOPY OF DEATH CERITIFICATE DATED 19-62006. EXHIBIT P7 A PHOTOCOPY OF AMENDED RULE VIDE G.O. (P)NO.456/2010/RD DATED 16-11-2010. EXHIBIT P8 A PHOTOCOPY OF CIRCULAR NO.C3-39059/17 DATED 5-12-2017 EXHIBIT P9 A PHOTOCOPY OF REPRESENTATION DATED 10-2-2019.**