High Court of KeralaSingle Judge2019-02-07Disposed of by allowing the petition; directing...

K.P. Rohini v. State of Kerala and Others

Case / Petition Number:WP(C).No. 3683 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: The Hon. Mr. Justice Alexander Thomas
Judgment Date: 2019-02-07
Court Decision / Holding: The impugned refusal to register the deed by the 3rd respondent-SRO is illegal and ultra vires. The petitioner may present the deed to the SRO for registration, and the SRO should register if otherwise in order. Ext. P4 cannot be invoked to deny registration or to override the pre-existing patta. The petition is allowed and disposed of with cost.
Final Disposition: Disposed of by allowing the petition; directing the SRO to register the deed if otherwise in order; Ext.P4 not to be used to deny registration; costs awarded to petitioner.

Parties to the Case

Appellants / Petitioners

K.P. Rohini

Respondents

State of Kerala (represented by the Secretary, Revenue Department)
District Collector, Kannur
Sub Registrar, Kannur
The Tahsildar, Thalassery

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Sherry J. Thomas
• Sri. E.K. Avinash

Counsels for Respondents

• Sri. Saigi Jacob Palatty, Senior Government Pleader

Case Synopsis & Summary

This writ petition (WP(C) No. 3683 of 2019) challenges Ext. P4 Government Order (dated 20.5.1997) restricting alienation by beneficiaries under the One Lakh Housing Scheme. The petitioner, an elderly widow, holds a patta (Ext. P1) for 1.62 ares issued under the Kerala Land Assignment Rules, 1964. Following her husband’s death, she became the sole legal heir and executed a Will in favor of her husband’s younger brother’s son. She sought to execute a settlement/deed conveying the property to that relative. When she approached the Sub Registrar for registration, she was told that Ext. P4 bars alienation, even though Ext. P1 contains no such restriction. The petitioner contends Ext. P4 was issued after the patta and cannot bind her rights, and that denial of registration would adversely affect her rights. Respondents contend that Ext. P4 is a valid policy measure and binding, and that patta holders must comply with statutory restrictions to implement public policy. The court cites Ext. P5 (2015) holding that post-patta conditions cannot bind pre-existing pattas, and relies on Bhaskaran v. State of Kerala (2010 (2) KLT 908), Joby Mathew v. State of Kerala, and Pushapangadan (Dr.) v. State of Kerala to uphold the petitioner’s rights. Ultimately, the court holds that the SRO’s refusal is illegal and ultra vires and directs registration if otherwise in order, disposing of the petition with costs.

Provisions of Law Cited

Rule 8(1) of the Kerala Land Assignment Rules, 1964Sec.7(1)(j) of the ActSec.8 of the ActS.R.O.No.59/2009Kerala Land Assignment Rules, 1964

Legal Doctrines & Maxims

Right of alienation conferred on the assignee cannot be curtailed by patta granting authority under Sec.8 of the Act.
Amendments to Rule 8(1) have prospective effect from 24.1.2009 and apply to fresh pattas issued after amendment, not to earlier pattas.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends Ext. P4 is not retrospective and cannot bind her rights under Ext. P1 patta. Since the patta preceded Ext. P4, she should be allowed to register a deed in favour of her husband’s younger brother’s son. Ext. P1 contained no alienation restriction; Ext. P5 (2015) confirms that post-patta restrictions cannot bind patta holders. The right of alienation under Rule 8(1) cannot be curtailed by patta granting authority in terms of Sec. 8, as clarified in Joby Mathew and related judgments.

Contentions of Respondents

The respondents argue Ext. P4 is a valid government order restricting alienation in certain schemes and is binding on patta holders. They contend that registration can be denied to uphold public policy; the Sub Registrar’s decision should be guided by the GO and the statutory framework, including Rule 8(1) and Sec. 7(1)(j)/Sec. 8 of the Act. They rely on precedents allowing conditions in patta grants to influence alienation rights.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Bhaskaran v. State of Kerala	2010 (2) KLT 908	Positive	Used to support the view that amendments to Rule 8(1) (via SR0 59/2009) have prospective effect from 24.01.2009 and apply to fresh pattas, not to those issued earlier.
Joby Mathew v. State of Kerala & ors.	2019 (1) KHC 276	Positive	Cited for the proposition that the right of alienation conferred on the assignee under Rule 8 cannot be curtailed by patta granting authority.
Pushapangadan (Dr.) v. State of Kerala & ors.	2018 (4) KHC 359	Positive	Referenced as upholding the principle that post-patta restrictions cannot bind patta holders, aligning with the current decision.
W.P.(C).No.26511/2015 (Ext.P5 Judgment)	Ext.P5	Positive	Judgment dated 30.9.2015 held that a similar condition to Ext.P4 cannot bind patta holders, supporting registration of the deed.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY ,THE 07TH DAY OF FEBRUARY 2019/ 18TH MAGHA, 1940** ## **WP(C).No. 3683 of 2019** ## **PETITIONER/S:** **K.P.ROHINI AGED 63 YEARS W/O LATE KUNJIKOROTH MADHAVAN ACHARY,KOROTH HOUSE, 8/428,KOLAKKAVU LAKSHAM VEEDU,KOTTAYAMPOIL.P.O, THALASSERY,KANNUR-670691.** **BY ADVS. SRI.SHERRY J. THOMAS SRI.E.K.AVINASH** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY,REVENUE**| ||**DEPARTMENT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**CIVIL STATION,KANNUR-682030.**| |**3**|**SUB REGISTRAR,**| ||**REGISTER OFFICE,KOTTAYAMPOIL.P.O,THALASSERY,**| ||**KANNUR-670691.**| |**4**|**THE TAHSILDAR,**| ||**TALUK OFFICE,THALASSERY.P.O,THALASSERY,**| ||**KANNUR-670101.**| ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **WP(C).No. 3683 of 2019** ## **ALEXANDER THOMAS, J** . -------------------- W.P(C).No.3683 Of 2019 ------------------------Dated this the 7[th] day of February, 2019. ## **J U D G M E N T** ## **The prayers in the above Writ Petition** ## **(Civil) are as follows:** _“i) Call for the entire records pertaining to the Exhibit P4 Government Order and Declare by way of any Writ or Order that, it will not affect the rights of the petitioner inherited by her vide Ext P1 Patta._ _ii) Issue a writ of mandamus, any other writ, or order to DECLARE that Ext P4 Government Order is not having any retrospective effect and it is not binding on the petitioner._ _iii) Issue a writ of mandamus, nay other writ, order or direction, Directing the 3[rd] Respondent to not to Refuse the registration of Document produces by the petitioner, on the ground of Ext P4 Government Order._ _iv) Such other relief's that this Honourable Court may deem fit and proper to grant, in the interest of justice._ _v) Provide cost of the proceedings.”_ ## **2. Heard Sri.Sherry J. Thomas, learned** **counsel for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader** ## **appearing for the respondents.** **3. The petitioner is an elderly senior citizen lady aged 63 years and she is living at the mercy of her husband's younger brother's son.** ::3:: **WP(C).No. 3683 of 2019** **The petitioner's husband was the patta holder of 1.62 ares of property as per Ext.P-1 patta No.H4.22507/89 dated 24.8.1990 issued by the respondent-Tahsildar under the provisions of the Kerala Land Assignment Rules, 1964. The petitioner's husband died intestate and being the sole surviving legal heir as his widow, the title and possession of the said property stood legally vests with the petitioner and she has now executed a Will in favour of her husband's younger brother's son bequeathing the said property. It is stated that as per the conditions of Ext.P-1 patta there was no restriction for alienation and that the property assigned is “purayidom” and the petitioner is residing there. Now the petitioner wants to execute a settlement deed so as to convey the said property in favour of her husband's younger brother's son. When the petitioner had approached the 3[rd] respondent-SRO for taking** ::4:: **WP(C).No. 3683 of 2019** **further steps for registration of the said deed, she was informed that though there are no conditions in Ext.P-1 order restricting alienation, the Government has subsequently issued Ext.P-4 Government Order dated 20.5.1997 whereby it was ordered that in case of persons who belongs to Schedules Caste and who are the beneficiaries of '** _**One Lakh Housing Scheme**_ **' cannot alienate the property, etc.** **4. The matter in issue is not longer res integra and it has been categorically held by this Court in Ext.P-5 judgment dated 30.9.2015 in W.P.(C).No.26511/2015 that such a condition similar to that in Ext.P-4 Government Order which has been incorporated subsequent to the patta cannot bind the patta holder and the respondentSRO has no power to deny registration of such** **deed. That apart, it is stated that in the instant case, Ext.P-1 patta dated 24.8.1990 was issued in a occupied land and therefore as per** ::5:: **WP(C).No. 3683 of 2019** **Rule 8(1) of the Kerala Land Assignment Rules, 1964, the said Rules had permitted alienation of the property and even Ext.P-1 patta does not contain any condition restricting the right of alienation. Further, this Court has held in cases as in** _**Bhaskaran v. State of Kerala, reported in 2010 (2) KLT 908**_ **, that Rule 8(1) of the Kerala Land Assignment Rules, 1964 were amended as per S.R.O.No.59/2009 with prospective effect only from 24.1.2009 and that this Court held that the said restriction as per the said amended notification dated 24.1.2009 to Rule 8(1) will be applicable only to fresh pattas issued after amendment and not to those issued earlier. Still further, this Court has held in the judgment dated 16.11.2018 in W.P.(C).No. 17443/2017 in the case in** _**Joby Mathew v. State of Kerala & ors.**_ **, reported in 2019 (1) KHC 276, that right of alienation conferred on assignee as per Rule 8** ::6:: **WP(C).No. 3683 of 2019** **framed by the Suboridnate Legislatue under Sec.7(1)(j) of the Act, which is approved by the Legislature a sper Sec.7(2) cannot be taken away by patta granting authority by stipulating a contra condition in terms of Sec.8 of the Act. The said legal position was so declared by this Court in** _**Joby Mathew's case (supra)**_ **that though the Rules permitted alienation by patta granting authority in purported exercise of the powers under Sec.8 had stipulated a contra condition of relaxing the resctricted right of alienation and this Court held that right conferred cannot be curtailed by the patta granting authority in purported exercise of the powers under Sec.8 of the Act. Therefore, the matter is beyond the pale of any controversy as far as the case of the petitioner is concerned. Moreover, it is not the business of the 3[rd] respondent to get into those aspects upheld by this Court in a series of judgments as in** _**Pushapangadan (Dr.) v. State of**_ ::7:: **WP(C).No. 3683 of 2019** _**Kerala & ors**_ **., reported in 2018 (4) KHC 359 = 2018 (3) KLT 711.** **5. Accordingly, it is ordered and declared that the impugned refusal on the part of the 3[rd] respondent-SRO in registering the deed in view of Ext.P-4 Government Order and such other related objections are illegal and ultra vires. The petitioner may present the deed before the 3[rd] respondent-SRO, who will register the same if it is otherwise in order. In other words, it is ordered and declared that registration of the deed cannot be denied by citing Ext.P-4 Government Order or some such other objections as detailed hereinabove.** **With these observations and diretions, the above Writ Petition (Civil) will stand finally disposed of.** Sd/- **ALEXANDER THOMAS, Judge.** bkn/- ::8:: **WP(C).No. 3683 of 2019** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE PATTA DATED 24.8.90.** **EXHIBIT P1 A THE TRUE COPY OF THE LAND TAX RECEIPT DATED 19.7.17** **EXHIBIT P2 COPY OF THE FAMILY MEMBERSHIP DATED 17.11.17.** **EXHIBIT P3 THE TRUE COPY OF THE WILL DEED DATED 31.1.17. EXHIBIT P4 THE TRUE COPY OF THE G.O.DATED 29.5.97. EXHIBIT P5 JUDGMENT DATED 30.9.2015 OF THIS HONOURABLE COURT IN WP(C)NO.26511/2015.**