Siby Mathew @ Sibichan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY ,THE 05TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940** **WP(C).No. 3354 of 2019** ## **PETITIONER/S:** **SIBY MATHEW @ SIBICHAN, AGED 53 YEARS S/O MATHEW, CHEMPLAYIL, UPPUTHARA P.O.IDUKKI DISTRICT 685 505. BY ADV. SRI.BIJU .C. ABRAHAM** ## **RESPONDENT/S:** |**1**|**THE STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PRINCIPAL SECRETARY TO**| ||**GOVERNMENT, REVENUE DEPARTMENT,GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM 695 001.**| |**2**|**THE STATE SPECIAL OFFICER AND COLLECTOR,**| ||**GOVERNMENT LAND RESUMPTION, THIRUVANANTHAPURAM**| ||**695 001**| |**3**|**THE DISTRICT COLLECTOR,**| ||**IDUKKI DISTRICT, COLLECTORATE, IDUKKI 685 603.**| |**4**|**THE TAHSILDAR,**| ||**PEERMADE TALUK, IDUKKI DISTRICT 685 538**| |**5**|**THE VILLAGE OFFICER,**| ||**UPPUTHARA VILLAGE, PEERMADE TALUK,**| ||**IDUKKI DISTRICT 685 505**| |**6**|**UPPUTHARA PANCHAYAT,**| ||**UPPUTHARA REPRESENTED BY**| ||**ITS SECRETARY 685 505.**| ## **OTHER PRESENT:** **SRI.M.R.DHANIL, GOVT,PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **WP(C).No. 3354 of 2019** ## **ALEXANDER THOMAS, J** . ----------------------W.P(C).No.3354 Of 2019 ------------------------Dated this the 5[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)** To call for the records leading to Ext P3 and quash Ext P3._ _ii) To declare that the acceptance of land tax provisionally with condition is illegal and unsustainable and the Village Officer has no authority to make any condition on the basic tax receipt; iii) To issue a writ of mandamus or other appropriate writ or order directing the 5[th] respondent to remove the endorsement “provisionally acceptance of BT subject to court decision in WP(C) 40002/16” from Ext P3 and to issue regular fresh tax receipts in lieu of Ext P3; iv) To issue a writ of mandamus or other appropriate writ or order directing the 5[th] respondent to issue possession certificate, location sketch, ROR certificate etc. village records in respect of the petitioner's properties covered by Ext P2; and v) Grant such other reliefs as this Hon'ble Court may deem just and proper in the interest of justice,including costs._ **2. Heard Sri.Biju C.Abraham, learned** **counsel for the petitioner and Sri.M.R.Dhanil, learned Government Pleader appearing for the respondents 1 to 5. In the nature of the order that is proposed to be passed in this petition,** ::3:: **WP(C).No. 3354 of 2019** **notice to 6[th] respondent will stand dispensed with.** **3. The petitioner is the absolute owner in possession and enjoyment of the property covered by Ext.P-2 partition deed No.1947/2006 dated 7.7.2006 of S.R.O., Peermade and the said property has been mutated in his name and he has been paying basic land tax for the same as evident from Ext.P-2(a). Later, the 5[th] respondent -Village Officer has accepted the basic land tax from the petitioner with endorsement in Ext.P-3 receipt that the same is accepted provisionally subject to the decision of this Court in W.P.(C). No.40002/2016. The 5[th] respondent is also refusing to issue location sketch, possession certificate, ROR certificate and village records/revenue records in respect of the subject property citing the ground of pendency of Ext.P-4 proceedings dated 12.8.2016 of the Special Officer & Collector under the provisions of** ::4:: **WP(C).No. 3354 of 2019** **Kerala Land Tax Act and therefore such revenue certificate cannot be issued in respect of the land in Sy.No.338/57 of Upputhara Village, etc. Now, Ext.P-4 has already been set aside by this Court in the judgment dated 7.11.2018 in W.P(C).No.40002/2016 and connected cases and therefore the 5[th] respondent is not justified in refusing to issue location sketch, ROR certificate, etc, and also to remove the condition in Ext.P-3 regarding the conditional acceptance of basic land tax and in respect of the subject property on account of disposal of W.P.(C).No.40002/2016 and connected cases as per Ext.P-5 judgment. The matter is covered by a series of judgments of this Court as in the common judgment dated 31.1.2019 in W.P.(C). No.1783/2019 and connected cases. The abovesaid common judgment dated 31.1.2019 in W.P.(C). No.1783/2019 and connected cases reads as follows:** ::5:: **WP(C).No. 3354 of 2019** _**'** The issues raised in these eight Writ Petitions (Civil) are broadly similar and hence these cases are disposed of on the basis of a common judgment. But some of the minor prayers in some of the Writ Petitions vary to the extent that though the main prayer in all these Writ Petitions is for the directions for issuance of the Possession Certificate and for issuance of basic land tax receipt without any endorsement based on the referring to the pendency of Ext.P-8 W.P(C), without mentioning about the pendency of W.P(C)No.40002/2016, etc. Additional prayers are made out in several occasions in the matter of directions for issuance of Right Of Record (ROR Certificate), location sketch and Possession Certificate, etc. W.P(C)No.1783/2019 is taken as the lead case._ _2. The prayers in W.P(C)No.1783/2019 are as follows:_ _“i) To issue a writ of certiorari or other appropriate writ or order quashing Exts.P5 and P6;_ _ii) To issue a writ of mandamus or other appropriate writ or order directing the 5th respondent to remove the endorsement “basic tax accepted provisionally subjected to Hon'ble High Court Case No.WP(C) 40002/16” from Ext.P2 and P4 and to issue regular fresh tax receipts in lieu of Exts.P2 and P4;_ _iii) To issue a writ of mandamus or other appropriate writ or order directing the 5th respondent to issue possession certificate, location sketch, ROR certificate etc. village records in respect of the petitioner's properties covered by Exts.P1 to P4; and iv) Grant such other reliefs as this Hon'ble Court may deem just and proper in the interest, including costs.”_ _3. Heard Sri.Biju C.Abraham, learned counsel appearing for the petitioners in these eight cases and Sri.Y.Jaffar Khan, learned Government Pleader appearing for the official respondents in these matters._ _4. In most of these cases, it is averred that the petitioner concerned therein are the absolute owners in possession and enjoyment of the subject property covered by the sale deeds produced as exhibits therein and the properties have been duly mutated in the name of the respective petitioners and that they have also been paying basic land tax. Later, when the petitioners sought for issuance of Possession Certificate, ROR Certificate and for accepting basic land tax, etc., they were informed more particularly by the impugned communications, as_ ::6:: **WP(C).No. 3354 of 2019** _per Exts.P-5 & P-6 produced in W.P(C)No.1783/2019, etc. That such revenue certificates like Possession Certificate, Location Sketch, ROR Certificates, village records, etc. cannot be issued to them in view of the issuance of the impugned proceedings No.GLR(LR)210/15/PER-TCO dated 12.08.2016 of the Special Officer and Collector (produced as Ext.P-7 in W.P(C)No.1783/2019). The main contention raised by the petitioners in these cases is that the said ground, which is even otherwise unsustainable is now totally untenable inasmuch as the said impugned proceedings as per the abovesaid Ext.P-7 in W.P(C)No.1783/2019 has already been set aside and quashed by this Court in the judgment dated 07.11.2018 rendered by this Court in W.P(C)No.40002/2016 & connected cases (produced as Ext.P-8 in W.P(C)No.1783/2019), wherein this Court has held and declared in no uncertain terms that the said impugned proceedings under the Land Conservancy Act is totally incompetent and beyond the powers conferred under the Land Conservancy Act, inasmuch as the petitioners therein have made out a substantial case based on title and that therefore, the impugned proceedings under the Land Conservancy Act is totally incompetent and that in case, the respondent-State Government can also proceed any further, their remedy is of the respondent State Government is to institute appropriate civil suits before the competent civil suits before the competent civil courts in the matter of title, etc., and not by issuing the impugned proceedings under the Land Conservancy Act. Since the sole ground of rejection in all the impugned orders in these cases is citing the pendency of the abovesaid impugned proceedings dated 12.08.2016 of the Special Officer and Collector, issued under the Land Conservancy Act and as the same has already been set aside by this Court in the judgment dated 07.11.2018 in W.P(C)No.40002/2016 & connected cases, the impugned orders does not have any legs to stand and is liable to be set aside. So the petitioners are entitled to secure the reliefs sought for by them, etc._ _5. Counter affidavit has been filed by the respondent-State authorities in W.P(C)No.1783/2019 and the pleadings in the said counter affidavit in W.P(C)No.1783/2019 has been sought to be adopted by the respondents in three other among cases, this batch of writ petitions, etc. The prime contention taken by the respondent-State authorities is that the subject property of the petitioners are parts of larger extents of properties, which had earlier secured exemption under Sec.81(1) (e) of the Kerala Land Reforms Act, 1964 on the ground that it is plantation lands. That going by the averments of the petitioners, it appears that the subject properties are fragmented plots of land and that from the case_ ::7:: **WP(C).No. 3354 of 2019** _attempted by the petitioners, it appears that it is sought to be used for a non-exemption purposes, in terms of Sec.81(1) of the Act, etc., it is contended by the respondents. That therefore, it is illegal and hence, the petitioners are not entitled to seek the issuance of the abovesaid revenue certificates. Per contra, Sri.Biju C.Abraham, learned counsel appearing for the petitioners would submit that the subject properties involved in these cases are parts of the larger extent of land held by M/s Peermade Tea Company, who secured their full rights in respect of the larger extent of land from the erstwhile Government of the Princely State of Travancore, long prior to coming into force of KLR Act and that since then it has been plantation lands and that the said lands of the abovesaid predecessor company is does not in any manner have anything to do with exemption as conceived in Sec.81(1)(e) inasmuch as it never secured any such exemption from the ceiling proceedings whatsoever, etc. and that therefore the abovesaid contention raised by the respondents is based on totally untenable and wrong factual premises. This Court need not get into the vexed issue of resolving the factual controversy, as to whether or not subject properties were in fact being the beneficiaries of exemption under Sec.81(1) (e) of the KLR Act as projected by the respondents or whether rights have been secured by the predecessor company in respect of the subject property from the erstwhile Government of Travancore Princely State and that the said properties have not secured any exemption under Sec.81(1) (e), etc., as the predecessor company had secured their full rights and title in respect of the said properties, which are plantation lands even prior to the very enactment of the Kerala Land Reforms Act, 1964, etc._ _6. The Division Bench of this Court in the common judgment dated 04.04.2017 in W.A.Nos.564 & 612 of 2017 has dealt with cases, where the petitioners therein had sought for issuance of Possession Certificate and it was resisted by the respondent-State authorities on the ground that the subject properties involved therein were exempted lands under Sec.81(1) (e) of the Kerala Land Reforms Act, 1964 being plantation lands and that therefore since the said petitioners propose to use the Possession Certificate for carrying out an activity like quarrying, which is a non-exempted purpose, Possession Certificate and other revenue certificates could not be issued. A Division Bench of this Court in the abovesaid common judgment dated 04.04.2017 in W.A.Nos.564 & 612 of 2017 categorically held that the said approach of the respondents is legally faulty and is untenable, inasmuch as the question as to whether the petitioners-land owners therein would be actually_ ::8:: **WP(C).No. 3354 of 2019** _using the lands in question for non-exempted purposes and thus violating the exemption clause would arise only when they actually use of the land for quarrying purposes and not at the stage when they seek a Possession Certificate for any such prospective use and that those objections and contentions are not relevant and germane for refusal of issuance of such revenue certificates and that the respondent-State authorities are fully at liberty to raise all such contentions and such objections at the appropriate time, when a cause of action in that regard actually arises. In that view of the matter, the Division Bench of this Court, in the abovesaid judgments in W.A.Nos.564 & 612 of 2017 has directed the respondent-State authorities including the competent revenue officials concerned are obliged in law to consider the issue as to whether the petitioners are otherwise entitled for the issuance of Possession Certificate, based on the norms in that regard and if they are so eligible, then certainly such revenue certificates should be issued and cannot be refused on the ground that such revenue certificates may be used for submitting application for permission of quarrying activities, etc. The dictum laid down in the judgment of the Division Bench in W.A.Nos.564 & 612 of 2017 would certainly be applicable the facts and circumstances of this case. That apart, this Court in the judgment in Devassia v. Sub Registrar [2015(1) KLT 825] has held that the provisions of the KLR Act do not place any embargo on transfer and the transfer of registry is for fiscal purposes on transfer and that said Act also do not curtail fragmentation of exempted lands from the purview of ceiling, but that exempted category of land, to have continuity of the qualification of exemption, the alienee or the transferee shall use the land for any of the purposes, for which exemption would be granted and if the land is used for a non-exempted purpose, either before or after the purchase, then certainly the respondent-State authorities may have the competence to take appropriate action as is warranted on law and facts, in that regard._ _7. In the light of these aspects, the abovesaid contentions raised by the respondents in their endeavor to justify the refusal of the officials for the issuance of the said revenue certificates is certainly based on irrelevant and untenable grounds and it is accordingly, so declared._ _8. Accordingly, it is ordered that the respondent-Village Officer in all these cases will immediately take up the request made by the petitioners for issuance of revenue certificates like Possession Certificate, location sketch, ROR_ ::9:: **WP(C).No. 3354 of 2019** _certificate, etc. and will issue the same, to the petitioners. So also, it is ordered that the respondent-Village Officer will ensure that the land tax receipts are also issued to the respective petitioners therein, without making any endorsement about the pendency of W.P(C)No.40002/2016, inasmuch as the said W.P(C) has already been finally disposed of as per judgment dated 07.11.2018 by overruling the stand of respondent-State and also by quashing the impugned proceedings and deciding the matter in favour of the petitioners therein. 9. Further it is ordered that in case, the competent respondent authorities tentatively proceed as against all other or any of the petitioners on the purported ground that the land in question had secured exemption under Sec.81(1)(e) and that the land is being used for a non-exempted purpose, etc., then the competent respondent officials concerned should make meticulous and detailed enquiry and should get proper and objective materials, in order to be certain that the lands in question had in fact obtained Sec.81 (1) (e) exemption being plantation land and in that regard the specific case of the petitioners that the subject properties in question are forming part of a larger extent of land which owned by M/s.Peermade Tea Company, who in turn had got full rights of the said land from the erstwhile Government of the Travancore Princely State long prior to the coming into force of the Kerala Land Reforms Act, 1964 and that therefore, there is no question of claiming any exemption and therefore, the subject properties have not in any manner secured any exemption under Sec.81(1)(e) of the Kerala Land Reforms Act, 1964, etc. should be ascertained with precision. Subject to the said rider, the competent respondent authorities concerned will be at liberty to take any such appropriate steps but strictly in accordance with law, provided it is otherwise justified and warranted on facts and law and also provided that the strict rigor of the procedure is adhered to in that regard. With these observations and directions, this Writ Petition (Civil) will stand disposed of.'_ **Accordingly, it is ordered that the directions and orders already issued in the judgment dated 31.1.2019 in W.P.(C).No.1789/2019 and connected** **cases will regulate this case as well. Consequently, it is ordered that the** ::10:: **WP(C).No. 3354 of 2019** **5[th] respondent-Village Officer will issue revenue certificates like possession certificate, location sketch, ROR certificate in respect of the property covered by Exts.P-2 and the petitioner may also represent the original of Ext.P-2(a) land tax receipt dated 29.6.2018 before the 1[st] respondent-Village Officer, who will then issue fresh land tax receipt without any condition or qualification so as to accept it without any condition regarding the pendency of W.P.(C).No.40002/2016 and connected cases as the same has already been dismissed as per Ext.P-5 judgment.** **With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.** Sd/- **ALEXANDER THOMAS, Judge.** bkn/- ::11:: **WP(C).No. 3354 of 2019** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE SALE DEED NO 379/1985 DATED 11.3.1985 OF PEERMADE SRO.** **EXHIBIT P2** **TRUE COPY OF THE PARTITION DEED NO 1947/2006 DATED 7/7/2006 OF SRO PEERMADE** **EXHIBIT P2 A TRUE COPY OF THE TAX RECEIPT DATED 29.6.2018 EVIDENCING PAYMENT OF BASIC TAX FOR THE YEAR 2018-19** **EXHIBIT P3** **TRUE COPY OF THE ORDER DATED 2.2.2019 ISSUED BY THE 5TH RESPONDENT** **EXHIBIT P4** **TRUE COPY OF THE PROCEEDING NO GLR (LR) 210/15/PER-TCO DATED 12.9.2016 OF THE SPECIAL OFFICER & COLLECTOR.** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 7.11.2018 PASSED BY THIS HON'BLE COURT IN WPC NO 40002/2016 AND CONNECTED CASES**