M. Kunhamu v. District Collector, Kasaragod; Tahsildar, Hosdurg Taluk; Village Officer, Periya Village; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY ,THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940** ## **WP(C).No. 30781 of 2018** ## **PETITIONER/S:** **M.KUNHAMU, AGED 61 YEARS, S/O ABDUL RAHIMAN, BUSINESS, RESIDING AT PERYA BAZAR, P.O PERYA, KASARAGOD-671 316.** **BY ADV.SRI.MAHESH V RAMAKRISHNAN** ## **RESPONDENT/S:** |**1**|**THE DISTRICT COLLECTOR,**| |---|---| ||**CIVIL STATION,**| ||**VIDYA NAGAR,**| ||**KASARAGOD-671 001.**| |**2**|**THE TAHSILDAR,**| ||**TALUK OFFICE, HOSDURG,**| ||**KASARAGOD – 671 513.**| |**3**|**THE VILLAGE OFFICER,**| ||**PERIYA VILLAGE,**| ||**KASARAGOD – 671 316.**| |**4**|**STATE OF KERALA,**| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**REVENUE DEPARTMENT,**| ||**SECRETARIAT,**| ||**THIRUVANANTHAPURAM – 695 001.**| ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** -----------------------------------------------------------------W.P.(C).No.30781 of 2018 ---------------------------------------------Dated this the 31[st] day of January, 2019 ## **J U D G M E N T** The prayers in this writ petition are as follows: _“ (i) To issue a writ of Mandamus or any other appropriate Writ, order or direction, directing the 2[nd] Respondent to correct the condition No.1 in Ext.P1 Order of Assignment by correcting the period of restriction for alienation shown as '10 years' as '3 years' as prescribed by the Kerala Land Assignment Rules, 1964 (as in force as on 12.04.2007);_ _(ii) To award the cost of these proceedings to the petitioner; and_ _(iii) To grant such other and further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case._ 2. Heard Sri.Mahesh V.Ramakrishnan, learned counsel for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. Petitioner claims absolute ownership, possession and W.P.C.No30781/2018 3 enjoyment of 15 cents of property in Resurvey No.286/1.1A2 of Periya Village of Hosdurg Taluk, Kasaragod District. The subject property was originally assigned to one Smt.K.Prameela as per Ext.P1 order of assignment dated 12.04.2007 issued by the 2[nd] respondent Tahsildar under the Kerala Land Assignment Rules, 1964. Pursuant to Ext.P1 order of assignment dated 12.04.2007, the 2[nd] respondent Tahsildar has issued Ext.P2 Patta dated 14.06.2007 in respect of the said subject property in favour of Smt.K.Prameela. Later, the said assignee, Smt.K.Prameela in turn had sold the said property to the petitioner as per Ext.P3 registered sale deed No.3922 of 2011 dated 14.09.2011 of S.R.O, Hosdurg. It appears that the grants as per Exts.P1 and P2 to the original assignee Smt.K.Prameela was in respect of an unoccupied land and as per the provisions contained in Rule -8(1A) of the Kerala Land Assignment Rules, 1964, as it stood at the time of Ext.P2 patta dated 14.06.2007, though the land was heritable, it could have been sold only after a period of three years. However, there was a condition that is imposed by the 2[nd] respondent Tahsildar as the patta granting authority in Ext.P1 order of assignment that the subject property shall not be alienated for a W.P.C.No30781/2018 4 period of ten years by the assignee. In the instant case the subject property has been transferred in favour of the petitioner by the original assignee as per Ext.P3 sale deed 14.09.2011, much after the outer time limit of three years statutorily prescribed in Rule 8(1A) of the Rule. But however, the sale was before the expiry of the period of ten years stipulated in Ext.P1 order of assignment by the patta granting authority. Only recently the petitioner had noted that the condition imposed in Ext.P1 order of assignment that the subject property covered by Ext.P2 shall not be sold for a period of ten years is against the statutory prescription in Rule-8(1A) which permitted alienation after a period of ten years and that therefore, approached the 2[nd] respondent Tahsildar to ensure that corrections are made in Ext.P1 so as to ensure that the restrictions in the period of alienation is limited to three years as per Rule-8(1A) and not ten years as stated in Ext.P1. Petitioners would also reliably learn from the 2[nd] respondent that if petitioner makes any such formal application for alteration of the period within which the property should be alienated as three years in the place of ten years, there is all likelihood, proceedings would be initiated by the respondents for cancellation of W.P.C.No30781/2018 5 patta as the property has been transferred to the petitioner as per Ext.P3 before the expiry of ten year period mentioned in Ext.P1 by the Patta granting authority. Accordingly, the learned counsel for the petitioner submits that the issue is squarely covered in his favour by the judgment dated 16.11.2018 rendered by this Court in W.P. (C).No.17443 of 2017 in the case **Joby Mathew v. State of Kerala and others [2019(1) KHC 276].** This Court had earlier requested the learned Government Pleader to get instructions and to ensure the filing of a statement on behalf of the respondents if they so choose. Now a statement dated 28.01.2019 has been filed on behalf of the 1[st] respondent District Collector, the prime contention taken in the said statement of 1[st] respondent as disclosed in paragraph 2 thereof is that the first condition mentioned in Ext.P1 order of assignment is that the subject property cannot be alienated for a period of ten years and that the second condition is that the land has to be utilized by the assignee or member of her family and that when the assignment was in such conditions issued by the patta granting authority, the transfer of property made in favour of the petitioner by the original assignee as per Ext.P3 sale deed dated 14.09.2011 is in patent violation of the W.P.C.No30781/2018 6 conditions in Ext.P1 assignment that the subject property shall not be sold for a period of ten years from the date of grant of patta (Ext.P2 patta dated 14.06.2007). Further that, the original assignee is necessary a proper party to the proceedings. 4. After hearing both sides this Court is of the considered view that matter in issue is fully covered in favour of the petitioner and against the respondents as per the dictum laid down by this Court in judgment dated 16.11.2018 rendered in W.P.(C).17443 of 2017 in the **Joby Mathew's case (supra)** . In that case, the patta granting authority had stipulated a condition in purported exercise under Rule 8(1) of the Kerala Government Land Assignment Act, 1960 that the subject property shall not be sold without stipulating any period of alienation. However, Rule 8(1) of the Kerala Land Assignment Rules framed under Section 7(1)(j) of the Kerala Government Land Assignment Act, 1960 has specifically mandated that the property shall not only be heritable but shall also be alienable. It was much after the date of grant of patta in that case that the Government as a Rule making authority has issued amendment notification so as to amend Rule-8(1), whereby it was stipulated that though the lands are W.P.C.No30781/2018 7 heritable it shall not be alienated for a period of 25 years. This Court is already held in the judgment in **Bhaskaran P.R v. State of Kerala, reported in [2010(10) KHC 6210=2010(2) KLT 908]** that the above said amendment made to Rule-8(1) of the Kerala Land Assignment Rules, made as per SRO No.59/2009 has only prospective effect from 24.01.2009 (date of issuance of that amendment notification) and regulate only pattas issued on or after 24.01.2009 and will not govern and regulate pattas issued prior to 24.01.2009, which will be regulated by the provisions of the Rules as it stood at the time of issuance of the patta. So, in the instant case the applicable Rule is not Rule-8(1) but Rule 8(1A) since it appears that the assignments as per Exts.P1 and P2 have been made in respect of the unoccupied land and therefore as to the prescription in Rule8(1A) as it stood at the time of issuance of Ext.P2 patta dated 14.06.2007, the subject property though heritable could have been alienated only after a period of three years. This Court in the aforesaid judgment in **Joby Mathew's case (supra)** held that the right of alienation conferred on one assignee as per Rule-8 framed under the subordinate legislation under Section 7(1)(j) of the Act, W.P.C.No30781/2018 8 which is approved by the Legislature under Section 7(2) cannot be taken away or abridged in any manner by the patta granting authority by stipulating a contra condition in terms of Section 8 of the said Act. Hence, it is only to be held that the original assignee was entitled to alienate the land after expiry of three years from the date of issuance of Ext.P2 patta dated 14.06.2007, which has expired on 13.06.2010. It is also not under dispute that in the instant case the subject property was transferred in favour of the petitioner as per Ext.P3 sale deed on 14.09.2011, which is much after the period of restriction stipulated in the Rules. The contra condition in Ext.P1 that the land covered by Ext.P2 patta cannot be alienated for a period of ten years, cannot in any manner abridged the right conferred on the original assignee as per Rule-8(1A) as it stood at the time of issuance of Ext.P2 patta dated 14.06.2007. Moreover, the other condition in the Patta that the land has to be utilized by the original assignee or the member of his/her family will have no efficacy on the original assignee after they sell the property after the period permitted by Rule 8 and in case of such permitted sale, then the new assignee or his family will have to so utilize the land for the purposes of the assignment. Hence, it is W.P.C.No30781/2018 9 only to be ordered and declared that the transfer of the property by the original assignee as per Ext.P3 registered sale deed dated 14.09.2011 in favour of the petitioner does not involve any violation of the provisions contained in Kerala Government Land Assignment Act, 1960 and the Rules framed there-under, in view of the specific right conferred on the original assignee as per Rule-8(1A) of the above said Rules. Since the law has been declared in such uncertain terms there is no necessity for the petitioner to get Ext.P1 formally corrected to show that the period of alienation mentioned therein should be three years and not ten years as per Rule-8(1A). In view of the said declaration of law and the orders and directions issued herein above, no further orders are required. No other issues are decided in this case. With these observations and directions, this writ petition is disposed of. ## **Sd/-** ## **ALEXANDER THOMAS** ## **JUDGE** DG W.P.C.No30781/2018 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE ORDER OF ASSIGNMENT IN PROCEEDINGS NO. LA-165/06/PERIYA/J2 DATED 12/04/2007 ISSUED BY THE 2ND RESPONDENT TO SMT. K.PRAMEELA.** - **EXHIBIT P2** - **TRUE COPY OF PATTAYAM NO. LA165/06/PERIA/J2 DATED 14/06/2007 ISSUED BY THE 2ND RESPONDENT TO SMT. K.PRAMEELA.** - **EXHIBIT P3** - **TRUE COPY OF REGD SALE DEED NO. 3922/2011 S R O HOSDURG EXECUTED BY SMT. K. PRAMEELA TO IN THE PETITIONER.** - **EXHIBIT P4** - **TRUE COPY OF THE LAND TAX RECEIPT DATED 12/07/2016 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P5** - **TRUE COPY OF THE POSSESSION CERTIFICATE DATED 01/10/2015 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P6** **TRUE COPY OF THE REGD GAHAN RELEASE DEED NO. G-1227/2006, S.R.O., HOSDURG.**