NOORUNNIZA and ABIDA UVAIS v. LOCAL LEVEL COMMITTEE (UNDER THE NATIONAL TRUST ACT), KOLLAM and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 30[TH] DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945** **WP(C) NO. 30875 OF 2023** ## **PETITIONER/S:** 1 NOORUNNIZA AGED 56 YEARS W/O LATE MUHAMMEDKUNJU, RESIDING AT PANTHA PLAVIL HOUSE, SRP MARKET PO, THAZHAVA, KARUNAGAPILLY, KOLLAM, PIN - 690539 2 ABIDA UVAIS AGED 39 YEARS W/O UVAIS M RESIDING AT PANTHA PLAVIL HOUSE, SRP MARKET PO, THAZHAVA, KARUNAGAPILLY, KOLLAM, PIN - 690539 BY ADVS. G.HARIKUMAR (GOPINATHAN NAIR) AKHIL SURESH ## **RESPONDENT/S:** 1 THE LOCAL LEVEL COMMITTEE (UNDER THE NATIONAL TRUST ACT) KOLLAM REPRESENTED BY ITS CHAIRMAN- DISTRICT COLLECTOR, COLLECTORATE, KOLLAM, PIN - 691013 2 THE CHAIRMAN LOCAL LEVEL COMMITTEE (UNDER THE NATIONAL TRUST ACT), KOLLAM, COLLECTORATE, KOLLAM, PIN - 691013 3 THE SUB REGISTRAR ADDITIONAL SUB REGISTRY OFFICE, NEAR CIVIL STATION, KARUNAGAPPALLI, PO, KOLLAM, PIN - 690518 BY ADVS. PUBLIC PROSECUTOR K.R.RANJITH, GOVERNMENT PLEADER WITH STATE ATTORNEY() SRI.V.RAMKUMAR NAMBIAR, AMICUS CURIAE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 30875 OF 2023 2 ## **JUDGMENT** The writ petition is filed, inter-alia, to direct the 3[rd] respondent to register the sale deed executed by the 1[st] petitioner for and on behalf of her son Uvais M. 2. The petitioners' case in the writ petition is that, the 1[st] petitioner is the widow of late Mohammed Kunju. They have three children born in their wedlock, a daughter and two sons. Their youngest son Uvais M., is a differently abled person, having 80% disability of mental retardation of severe condition as reflected in Ext.P1 certificate issued by the Medical Board. The differently abled person is married to the 2[nd] petitioner and they have two children born in their wedlock. 2.1. The 1[st] petitioner's husband died on 26.05.2020. As the 1[st] petitioner has been looking after to the welfare of Uvais M., she filed an application to appoint her as the legal guardian before the Local Level Committee - the 1[st] respondent under Section 14 of the National Trust for Welfare of Persons with Autism, WP(C) NO. 30875 OF 2023 3 Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 ('Act', for short). The 1[st] respondent, by Ext.P3 order, has appointed the 1[st] petitioner as the legal guardian of Uvais M. 2.2. The 1[st] petitioner's husband, prior to his death, had entered into an agreement of sale with a third party to sell his properties. On his death, the obligation to execute the sale deed fell on the shoulders of the 1[st] petitioner and her children including Uvais M. 2.3. Since the 1[st] petitioner being the legal guardian of Uvais M., she filed an application before the 1[st] respondent, seeking permission to execute the sale deed for and on behalf of Uvais M. The 1[st] respondent called for a report from the Village Officer, Thodiyur and allowed the application, by Ext.P5 order, permitting the 1[st] petitioner to sell the property, subject to the condition that the 1[st] petitioner deposits 2/6[th] of the sale consideration or Rs.35/- lakh, whichever is higher, in a fixed deposit in a Nationalised bank in the joint names of WP(C) NO. 30875 OF 2023 4 Uvais M. and the 1[st] petitioner. 2.4. Aggrieved by the onerous condition in Ext.P5 order, the 1[st] petitioner filed Ext.P6 review petition. 2.5. During the pendency of the review petition, the 1[st] petitioner filed WP(C) No.26932/2021 before this Court. By Ext.P8 judgment, this Court directed the 1[st] respondent to consider Ext.P6 application in accordance with law. 2.6 In the meantime, the 1[st] respondent passed Ext.P9 order modifying the impugned condition and directed the 1[st] petitioner to deposit Rs.29,16,666/instead of Rs.35/- lakh. Thereafter, by Ext.P12 order, the 1[st] respondent rejected Ext.P6 review petition. 3. Exts.P5, P9 and P12 orders are patently illegal, arbitrary and wrong. Hence the writ petition. 4. The 1[st] respondent has filed a statement, interalia, stating that the Village Officer, Thodiyur had submitted a report dated 05.08.2021 stating that the fair WP(C) NO. 30875 OF 2023 5 value of the property in question is Rs.18,000/- per cent and market value is Rs.3,00,000/- per cent. Subsequently, the Village Officer conduced a site inspection and, by report dated 25.01.2023, found that the property has a market value of Rs.2,50,000/- per cent. There is no error in Exts.P5, P9 and P12 orders. Hence, the writ petition may be dismissed. 5. Heard; Sri. G.Harikumar, the learned Counsel appearing for the petitioners; Sri.Renjith, the learned Government Pleader appearing for the respondents and Sri.V.Ramkumar Nambiar, the learned Amicus Curiae. 6. The learned Counsel appearing for the petitioner argued that Exts.P5, P9 and P12 orders are arbitrary and illegal and are liable to be set aside for more reasons than one. He contended that it was late husband of the 1[st] petitioner who had entered into the agreement of sale with a third party during his life time. The sale consideration was bilaterally agreed by the parties, i.e., @ Rs.40,000/- per cent, which is much above the fair WP(C) NO. 30875 OF 2023 6 value fixed by the Government. The market value assessed by the Village Officer is fanciful and without any foundation or basis. Although this Court, by Ext.P8 judgment, had directed the 1[st] respondent to consider Ext.P6 review petition, the 1[st] respondent has summarily rejected the review petition by a cryptic order (Ext.P12), without any application of mind on the ground that Ext.P5 order was passed on the basis of the report of the Village Officer. He placed reliance on two unreported judgments of this Court in **Jessy Jose vs. Local Level Committee and another** (WP(C) No.32235/2017) and **Bindu K.P. vs. District Collector and another** (WP(C) No.38293/2022) to fortify his submission that the Village Officer cannot assume a market value especially when the fair value has been fixed at a far lower rate by the Government. Hence the impugned orders are erroneous and illegal. 7. The learned Government Pleader supported the impugned orders and submitted that the 1[st] respondent WP(C) NO. 30875 OF 2023 7 has fixed the condition in Ext.P5 order only to secure the paramount welfare and best interest of the differently abled person. In the enquiry conducted by the Village Officer, it was found that the properties in the locality were sold for Rs.3,00,000/-, per cent, which was the basis for fixing the market value of the property at the said rate. The writ petition is merit less and is only liable to be dismissed. 8. The petitioners have produced and marked Exts.P15 to P23 documents on record as per the order in I.A.No.1/2023. 9. The 1[st] petitioner was appointed as the legal guardian of her son Uvais M., as per Ext.P3 order dated 05.09.2020, as per the provisions of the Act. 10. Subsequent to Ext.P3 order, the 1[st] petitioner had filed an application seeking permission to sell the property belonging to her husband late Mohammed Kunju on the assertion that her late husband had entered into an agreement of sale with the third party, but her WP(C) NO. 30875 OF 2023 8 husband died before the execution of the deed of conveyance. 11. The 1[st] respondent allowed the application, subject to the following conditions: (i) 2/6[th] of the sale consideration or Rs.35/- lakh, whichever is higher, has to be deposited in a monthly interest bearing fixed deposit in a nationalised bank in the joint names of Uvais M and the 1[st] petitioner and the lien of the 1[st] respondent has to be noted on the fixed deposit; (ii) To submit a copy of the fixed deposit in the office of the 1[st] respondent; and (iii) Draft of the agreement for transfer has to be approved by the 1[st] respondent and only thereafter the sale deed is to be executed. 12. Aggrieved by Ext.P5 order, the 1[st] petitioner filed Ext.P6 review petition. 13. Subsequently, the 1[st] petitioner also filed W.P©No.26932/2021 before this Court challenging Ext.P5 order. WP(C) NO. 30875 OF 2023 9 14. By Ext.P8 judgment, this Court directed the 1[st] respondent to reconsider Ext.P5 order, in the light of Ext.P6 review petition. 15. During the pendency of the writ petition, the 1[st] respondent again based on the revised report of the Village Officer, by Ext.P9 order, modified condition No.(i) in Ext.P5 order and directed the 1[st] petitioner to deposit 2/6[th] of the sale consideration or Rs.29,16,666/-, whichever is higher, instead of Rs.35/- lakh that was originally ordered. Thereafter, the 1[st] respondent, by Ext.P12 order, dismissed Ext.P6 application on the ground that there is no ground to review Ext.P5 order. 16. Admittedly, the agreement of sale was executed by the 1[st] petitioner's husband and father of Uvais M. – late Mohammed Kunju - prior to his death, whereby, he agreed to sell his property to a third party for Rs.40,000/- per cent. 17. After the death of Mohammed Kunju, the 1[st] petitioner got herself appointed as the legal guardian of Uvais M. under the provisions of the Act. WP(C) NO. 30875 OF 2023 10 18. Subsequently, the 1[st] petitioner filed an application seeking permission to sell the property on behalf of Uvais M., who inherited a share in his father's property. The said application was conditionally allowed by the 1[st] respondent as mentioned above. 19. A perusal of the materials on record establish that the 1[st] respondent has arrived at the above conclusion, on the basis of the report of the Village Officer, who conducted a site inspection and reported that the market value of the property is Rs.2,50,000/-. There is no material to corroborate the reason for fixing the market value at the said rate. 20. Indisputably, the fair value of the property in question is only Rs.18,000/-, as per the report of the Village Officer dated 05.08.2021. 21. Exts.P15 to P22 are sale deeds executed by different vendors before the Sub Registry Office, Karunagappally, during the period from 05.01.2019 to 28.01.2023, which have been produced by the petitioners to substantiate the land value of properties in the WP(C) NO. 30875 OF 2023 11 locality. 22. Ext.P15 sale deed dated 28.01.2023 shows that the property covered by the sale deed was sold for Rs.15,531/- per cent, Ext.P16 sale deed dated 25.07.2022 shows that the property was sold for Rs.11,500/- per cent, Ext.P18 sale deed dated 05.01.2019 shows that the property was sold for Rs.24,691/- per cent, Ext.P19 sale deed dated 26.08.2021 shows that the property was sold for Rs.14,986/- per cent, Ext.P20 sale deed dated 29.11.2022 shows that the property was sold for Rs.18,536/- per cent, Ext.P21 sale deed dated 29.12.2021 shows that the property was sold for Rs.15,909/- per cent and Ext.P22 sale deed dated 06.01.2023 shows that the property was sold for Rs.37,335/- per cent. Thus, the above transactions give a fair estimate of the value of the properties in the locality where the present property is situated. 23. The 1[st] petitioner's husband had entered into an agreement of sale with the third party to sell his property WP(C) NO. 30875 OF 2023 12 for Rs.40,000/- per cent, which is much higher than the fair value fixed by the Government. Therefore, I am of the definite view that the condition imposed by the 1[st] respondent that the 1[st] petitioner has to deposit 2/6[th] of the total sale consideration or Rs.29,16,666/-, whichever is higher, is onerous and without any legal foundation. 24. It is the constitutional right of a person under Article 300A of the Constitution of India to deal with their property. Therefore, any person has a legal right to deal with his property as the various enactments that are in vogue. The 1[st] respondent has no implicit power to stipulate that a property has to be sold as per the market value fixed by him. The market value fixed by the 1[st] respondent is prohibitively higher than the fair value fixed by the Government. 25. It may be true that the 1[st] respondent has passed the impugned order to secure the paramount welfare and the best interest of the differently abled person, but the same cannot be on the basis of the report of the Village Officer or against the established principles of law based WP(C) NO. 30875 OF 2023 13 on assumptions and surmises. 26. It is to be remembered that the agreement was executed by differently abled person's father during his life time and if he had sold the property while he was alive, all that could be looked into is whether the stamp duty for registration of sale deed was paid as per the fair value fixed by the Government. 27. Viewed in the above conspectus, I am of the view that the condition No.(i) in Ext.P5 order, which was subsequently modified by Ext.P9 order, is unreasonable and arbitrary and is liable to be quashed and set aside and consequentially Ext. P12 order is also to be set aside. 28. Following the principles laid down in the decisions in **Jessy Jose and Bindu K.P** (supra) and for the reasons stated above, the writ petition is to be allowed and the 1[st] petitioner be permitted to sell the property of her husband and deposit 2/6 of the total sale consideration as reflected in the sale deed, and the differently abled person's share be deposited in fixed WP(C) NO. 30875 OF 2023 14 deposit, which would secure the paramount welfare and best interest of Uvais M. In the result, - (i) The writ petition is allowed; - (ii) The condition Nos.(i) and (iii) in Ext.P5 and P9 orders are quashed; - (iii) The 1[st] petitioner is permitted to sell the property belonging to late Mohammed Kunju, for and on behalf of Uvais M. by executing the sale deed on his behalf for an amount of Rs.40,000/- per cent and thereafter deposit 2/6 of the total sale consideration in the joint names of Uvais M. and the 1[st] petitioner in a monthly interest bearing fixed deposit in a nationalised bank with the lien of the 1[st] respondent being noted on the fixed deposit - (iv) The 1[st] petitioner shall submit a copy of the fixed deposit before the 1[st] respondent. - (v) The Registering Authority is directed to accept the sale deed presented by the 1[st] petitioner, for and on behalf of Uvais M., on the basis of the directions in WP(C) NO. 30875 OF 2023 15 the judgment. - (vi) The 1[st] petitioner shall submit annual statement of accounts to the 1[st] respondent, as provided under Section 16 of the Act. - (vii) The 1[st] petitioner shall also be at liberty to move the 1[st] respondent in case she requires to withdraw any amount from the fixed deposit, for the medical expenses of Uvais M. - (viii) If any such application is filed, the same shall be considered by the 1[st] respondent, in accordance with law. **Sd/- C.S.DIAS JUDGE** rkc/30.10.23 WP(C) NO. 30875 OF 2023 16 ## **APPENDIX OF WP(C) 30875/2023** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE CERTIFICATE FOR PERSONS WITH DISABILITIES DATED 26.11.2016 Exhibit P2 TRUE COPY OF THE CERTIFICATE OF MARRIAGE DATED 28.10.2016 Exhibit P3 A TRUE COPY OF THE CERTIFICATE OF APPOINTMENT OF LEGAL GUARDIAN DATED 05.09.2020 Exhibit P4 TRUE COPY OF THE INTIMATION DATED 27.07.2021 FROM 1 ST RESPONDENT TO VILLAGE OFFICER Exhibit P5 A TRUE COPY OF THE ORDER DATED 04.09.2021 OF THE 1 ST RESPONDENT Exhibit P6 TRUE COPY OF THE PETITION FOR REVIEW DATED 06.07.2022 Exhibit P7 TRUE COPY OF APPLICATION FOR GUARDIANSHIP SUBMITTED BY 2 ND PETITIONER DATED 22.12.2022 Exhibit P8 TRUE COPY OF JUDGEMENT IN WP (C) NO. 26932/2021 DATED 15.02.2023 OF THIS HON'BLE COURT Exhibit P9 TRUE COPY OF THE ORDER DATED 07.02.2023 OF THE 1 ST RESPONDENT Exhibit P10 TRUE COPY OF NOTICE OF HEARING DATED 21.03.2023 Exhibit P11 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONERS TO THE 1 ST RESPONDENT Exhibit P12 A TRUE COPY OF THE ORDER DATED 02.06.2023 OF THE 1 ST RESPONDENT Exhibit P13 TRUE COPY OF THE DRAFT SALE DEED WP(C) NO. 30875 OF 2023 17 SUBMITTED TO THE 1 ST RESPONDENT Exhibit P14 TRUE COPY OF THE GAZETTE NOTIFICATION SRO NO. 420/2023 DATED 25.03.2023 Exhibit P15 A TRUE COPY OF THE SALE DEED NO. 281/2023 DATED 28.01.2023 OF SRO KARUNAGAPPALLY Exhibit P16 A TRUE COPY OF THE SALE DEED NO.1900/2022 DATED 25.07.2022 OF SRO KARUNAGAPPALLY Exhibit P17 A TRUE COPY OF SALE DEED NO. 1600/2022 DATED 17.06.2022 OF SRO KARUNAGAPPALLY Exhibit P18 A TRUE COPY OF SALE DEED NO. 31/2019 DATED 05.01.2019 OF SRO KARUNAGAPPALLY Exhibit P19 A TRUE COPY OF SALE DEED NO.1756/2021 DATED 26.08.2021 OF SRO KARUNAGAPPALLY Exhibit P20 A TRUE COPY OF SALE DEED NO. 2941/2022 DATED 29.11.2022 OF SRO KARUNAGAPPALLY Exhibit P21 A TRUE COPY OF SALE DEED NO. 2822/2021 DATED 29.12.2021 OF SRO KARUNAGAPPALLY Exhibit P22 A TRUE COPY OF THE SALE DEED NO. 59/2023 DATED 06.01.2023 OF SRO KARUNAGAPPALLY