Sadheesh v. District Collector, Malappuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940** ## **WP(C).No. 1953 of 2019** ## **PETITIONER:** **SADHEESH, AGED 35 YEARS S/O.VELUTHON SUBRAMANIAN, NATTUKALLINGAL HOUSE, CHIRAYIL P.O., NEDIYIRIPPU AMSOM, CHIRAYIL DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.RAKESH** ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR,**| |---|---| ||**MALAPPURAM, PIN-676505.**| |**2**|**THE TAHSILDAR,**| ||**ERNAD TALUK, MANJERI, MALAPPURAM DISTRICT,**| ||**PIN-676121.**| |**3**|**THE VILLAGE OFFICER,**| ||**NEDIYIRIPPU VILLAGE, MALAPPURAM DISTRICT, PIN-673638.**| |**4**|**THE SUB REGISTRAR,**| ||**KONDOTTY, MALAPPURAM DISTRICT, PIN-673638.**| **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C)No.1953 of 2019 2 ## **ALEXANDER THOMAS, J.** ## **=========================== W.P(C)No.1953 of 2019** **===========================** Dated this the 23[rd] day of January, 2019 ## **JUDGMENT** The prayers in the above Writ Petition (Civil) are as follows: - _i) Issue a writ of mandamus or any other appropriate writs, orders of directions directing the 4[th] respondent to delete the encumbrance noted on the property of the petitioner comprised in Re-Survey 278/1/4499;_ - _ii) Declare that the petitioner is legally entitled to convey the property as the land in question is assigned to his predecessor, by the original Pattayam holder after 10 years from the date of issue of Pattayam and therefore, valid in view of Section 8 of the Kerala Government Land Assignment Act;_ - _iii) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case._ 2. Heard Sri.K.Rakesh, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Sr.Government Pleader appearing for the respondents. 3. The subject property was assigned to the predecessor of the petitioner, as per Ext.P-3 pattayam No.136/1997, by the 2[nd] respondent-Tahsildar in the year 1997, as per the provisions contained in the Kerala Land Assignment Rules, 1964. It appears that the said pattayam was granted in respect of unoccupied land and therefore as per Rule 8 (1A) of the abovesaid Rules as it then stood, the subject property was heritable and was alienable after a W.P(C)No.1953 of 2019 3 period of three years from the grant of the patta. The said Rule has been framed under Sec.7(1) of the Kerala Government Land Assignment Act, 1960. However, another condition has been added in Ext.P-3 patta that the subject property shall not be sold for a period of ten years by purportedly invoking the powers of the patta granting authority, as per Sec.8 of the said Act. The property covered by Ext.P-3 patta was sold by the pattadhar concerned to the pattadhar’s sister, one Smt.Savithri as per Ext.P-2 registered sale deed dated 08.05.2009. Subsequently, the said property was sold by the title holder of Ext.P-2 to the petitioner and his wife as per registered sale deed dated 27.09.2012. It appears that the original pattadhar who was granted Ext.P-3 belongs to Scheduled Caste community. Now an encumbrance has been noted in respect of the abovesaid property, as per Ext.P-4 Encumbrance Certificate by the 4[th] respondentSub Registrar, as per entry Nos. 3 and 4 therein, that the original pattadhar as per Ext.P-3 pattadhar could have sold the property only to the family members and that if the patta is issued to a member of the scheduled caste community, the property could have been conveyed only to another member of the scheduled caste community, etc. and that the original pattadhar should not W.P(C)No.1953 of 2019 4 conveyed the property, if he does not have any other land. Further that the above property could have been sold only with the prior permission of the District Collector in such cases, etc. The abovesaid aspects have been noted as encumbrances, as per entries No.3 & 4 in Ext.P-4 Encumbrance Certificate issued in respect of the subject property. 4. The matter in issue is no longer _res integra_ and is covered by the judgment dated 03.10.2018 in W.P(C)No.31801/2018, this Court dealt with a case, where it was stipulated that the original pattadhar, who is a member of the Scheduled Caste community, cannot convey the property to a person other than a member of the scheduled caste community, etc. This Court noted that the main condition in the patta was that the property shall not be sold for the specified period in question. Accordingly, this Court held that the condition that property shall not be sold to a person, who does not belongs to the Scheduled Caste community, etc., cannot be justified, as it is violative of the rights conferred under Sec.10 of the Transfer of Property Act. Further it is also stated that the provisions contained in the enactments like the Kerala Scheduled Tribes Restriction on Transfer of Lands and Restoration of Alienated W.P(C)No.1953 of 2019 5 Lands Act, 1975, will not apply in the case of the petitioner’s land, in as much as the said person did not belong to Scheduled Tribe community. Accordingly, it was held therein that the said impugned condition is illegal and _ultra vires_ and had directed the Sub Registrar therein to register the sale deed concerned, etc. 5. This Court has also held in various decisions as in the judgment dated 13.11.2018 in W.P(C)No.36834/2018 that such conditions which are imposed on the basis of norms issued as per Government orders, etc., cannot bind a patta which has been issued prior to the issuance of Government orders, etc. 6. Further, it has also been held by this Court in the judgment dated 16.11.2018 in W.P(C)No.17443/2017 in the case in _**Joby Mathew v. State of Kerala and others**_ reported in 2019(1)KHC 276 that the right of alienation conferred as per Rule 8 framed by the Subordinate Legislature under Sec.7(1)(j) of the Act, which has been 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, etc. Accordingly, this Court held that when the Rules has prescribed restriction regarding the period within which the patta property can be alienated, the same cannot be curtailed and taken away by W.P(C)No.1953 of 2019 6 prescribing a more rigorous condition by the patta granting authority in purported exercise of the powers under Sec.8 of the Act and that the provisions in the statutory Rules will then override the patta conditions. In the instant case, as per the Rules, more particularly in terms of Rule 8(1A), the subject property could have been sold within a period of three years from the date of grant. Further even going by the conditions of patta, property could have been sold within ten years. Even if it is assumed that the ten year prescription is otherwise valid, it is to be noted that the said ten year period has elapsed long ago. Further, the property as per Ext.P-3 patta was initially conveyed by the pattadhar in favour of his sister as per Ext.P-2 sale deed dated 08.05.2009. The petitioner’s sister, also belongs to the Scheduled Caste community and Ext.P-2 sale is much after the 10 year waiting period. So in any view of he matter, there is no illegality in the sale. 7. In the light of these aspects, it cannot be said that the transfer of property as per Exts.P-2 & P-1 is vitiated by any illegality. Accordingly, it is only to be ordered that the impugned encumbrances noted as serial Nos.3 & 4 in Ext.P-4 Encumbrance Certificate are illegal and _ultra vires_ . The 4[th] respondent-Sub W.P(C)No.1953 of 2019 7 Registrar will immediately take necessary steps to make additional entries in book No.1 in respect of the subject property as envisaged in Sec.89(5) of the Registration Act, 1908, so as to efface and delete such encumbrances. The 4[th] respondent will thereafter issue a fresh Encumbrance Certificate to the petitioner, in respect of the subject property, after deleting such encumbrances, provided the petitioner should submit an application in that regard and necessary fee/cost in that regard is paid. Necessary steps in that regard should be duly completed by the 4[th] respondent-Sub Registrar, 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, this Writ Petition (Civil) will stand disposed of. ## **Sd/-** **ALEXANDER THOMAS JUDGE** vgd/25.01.19 W.P(C)No.1953 of 2019 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ASSIGNMENT DEED DATED, 27.9.2012 BY VIRTUE OF WHICH THE PETITIONER AND HIS WIFE HAVE ACQUIRED TITLE OF PROPERTY.** **EXHIBIT P2 TRUE COPY OF THE ASSIGNMENT DEED DATED, 8.5.2009 EXECUTED IN FAVOUR OF THE PETITIONER'S PREDECESSOR.** **EXHIBIT P3 TRUE COPY OF THE PATTAYAM WITH NO.136/1997 ISSUED BY THE TAHSILDAR, ERNAD IN FAVOUR OF ONE VELAYUDHAN.** **EXHIBIT P4 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE PERTAINING TO THE PETITIONER'S LAND ISSUED BY THE SUB REGISTRAR, KONDOTTY DATED, 18.12.2018.**