Smt. Thulasi and Santosh George v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **MONDAY, THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940** ## **WP(C).No. 34377 of 2018** ## **PETITIONERS:** |**1**|**SMT.THULASI, AGED 76, W/O MADHAVAN,**| |---|---| ||**THEKKEVEETTIL, NOW RESING AT KALIYATHU HOUSE,**| ||**CHEMBU TALUK, PIN-686615.**| |**2**|**MR.SANTHOSH GEORGE, AGED 48 YEARS,**| ||**S/O.V.J.GEORGE, KULANGARA HOUSE, PALAKKATTU MALA,**| ||**MARANGATTUPPALLY P.O., PIN - 686 635.**| ||**BY ADV. SRI.P.MARTIN JOSE**| ## **RESPONDENTS:** - **1 STATE OF KERALA, REP. BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001** - **2 THE DISTRICT COLLECTOR, CIVIL STATION, KOTTAYAM, PIN - 686 001.** - **3 THE THAHASILDAR TALUK OFFICE, VAIKOM, PIN - 686 141.** - **4 THE VILLAGE OFFICER, CHEMBU, VAIKOM TALUK, PIN - 686 141.** - **ADDL. 5 N.M.TAHA, AGED 74 YEARS, S/O MOHAMMED, NEDUMCHIRAYIL, KARIPPADAM P.O., VAIKOM-686605.** - **ADDL. 6 P.A.MOHANAN, AGED 49 YEARS, S/O LATE AYYAPPAN, KANDATHIPARAMBU, CHEMBU P.O, VAIKOM-686608. ADDL.R5 AND R6 ARE IMPLEADED AS PER ORDER DATED 19/11/2018 IN IA.NO.01/2018)** **SRI.K.J.MOHAMMED ANZAR SPL.GOVT.PLEADER(REVENUE) FOR R1 TO R4, SMT.KAVERY. S .THAMPI FOR R5 AND R6** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ----------------------------------- ## W.P.(C)No. 34377 of 2018 ----------------------------------Dated this the 18[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 records leading to Exhibit P7 and quash the same by issue of a writ of certiorari or other appropriate writ order or direction._ - _ii. Issue such other writ, order or direction as may be necessary in the interest of justice."_ 2. Heard Sri.S.Sreekumar, learned Senior Counsel instructed by Sri.P.Martin Jose, learned counsel appearing for the petitioners, Sri.K.J.Mohammed Anzar, learned Special Government Pleader (Revenue) appearing for official respondents 1 to 4 and Smt.Kavery S.Thampi, learned counsel appearing for contesting respondents 5 & 6. 3. It is stated that the 1[st] petitioner was in occupation of 83.40 ares (2 acres and 6 cents) of Government land in Sy.No.282/IA of Chembu Village, Vaikom Taluk, Kottayam Revenue District, and was residing there since 1960 and was undertaking cultivation in the said property. The 1[st] petitioner had no other land other than the said land occupied by her and W.P.(C).No.34377/2018 **==> picture [19 x 9] intentionally omitted <==** restrained tax/provisional tax was also imposed on the 1[st] petitioner in 1964 for occupation of the said land. Later the 1[st] petitioner had applied for assignment of said land under the provisions of the Kerala Land Assignment Rules, 1964 and the 1[st] respondent State Government had issued GO.(MS) No.1044/1982 dated 6.11.1982 granting sanction to assign 2 acres and 6 cents of said property to the 1[st] petitioner.. The said GO.(MS) No.1044/1982 dated 6.11.1982 has been referred to as 1[st] paper in Ext.P-1. However due to the financial difficulty of the 1[st] petitioner, she could not pay the requisite land value amounts for formal issuance of patta and she had sought for application to condone the delay in paying the land value amount under 3[rd] proviso to sub Rule 7 of Rule 9 and the Commissioner for Land Revenue had recommended for granting delay condonation in that regard and the Revenue Secretary had later issued order dated 5.5.2016 directing the authorities concerned to assign the land to the 1[st] petitioner after accepting the land value. The 1[st] petitioner was permitted to pay the land value and Ext.P-1 G.O.(MS) W.P.(C).No.34377/2018 ..4.. No.335/06/R.D dated 27.11.2006 issued by the 1[st] respondent State Government, granting sanction to assign 45.36 ares of the said property to the 1[st] petitioner, etc. Pursuant to Ext.P-1 G.O. Dated 27.11.2006, the 3[rd] respondent Thahsildar had issued Ext.P-1 patta dated 16.1.2007 assigning the said land in the name of the 1[st] petitioner. Accordingly, she had remitted the entire land value and the mutation of the property was duly effected on her name and basic land tax has also been accepted from her in respect of the subject property covered by Exts.P-1 and P-2 as evident from Ext.P-3 land tax receipt dated 23.5.2007. Later the 1[st] petitioner had sold the said property covered by Ext.P-2 patta to the 2[nd] respondent as per Ext.P-4 registered sale deed No.2516 of 2008 dated 18.8.2008 of SRO Vaikom and the 2[nd] petitioner has been in possession of said property, etc. 4. Now it appears that the contesting respondents 5 & 6 had given a complaint to the 3[rd] respondent that the 1[st] petitioner had violated the terms and conditions of Ext.P-2 patta by assigning the said land to the 2[nd] petitioner as Ext.P-4 registered sale deed W.P.(C).No.34377/2018 **==> picture [18 x 9] intentionally omitted <==** No.2516 of 2008, as the property has been sold before the expiry of 3 year period. It appears that complaint of the respondents 5 and 6 on the premise that the Ext.P-2 patta dated 16.1.2007 has been granted under Rule 8(1A) of the Kerala Land Assignment Rules, 1964, which stipulates that the property covered by such pattas under Rule 8(1A) can be sold only after a period of 3 years from the date of the grant of patta and the instant sale as per Ext.P-4 deed dated 18.8.2008 would amount to violation of patta conditions inasmuch as the said sale is before the period of 3 years from the date of issuance of Ext.P-2 patta. Pursuant to the said complaint the 3[rd] respondent has now issued impugned Ext.P-5 notice dated 10.11.2017 directing the parties including the petitioners for personal hearing to consider the abovesaid complaint of respondents 5 and 6. The petitioners have submitted Exts.P-6 & P- 6(a) explanations to Ext.P-5 notice. 5. It is seen that the 2[nd] petitioner has filed OS.No.358/2015 as against the 6[th] respondent P.A.Mohanan and another person named P.A.Remanan in respect of certain other W.P.(C).No.34377/2018 ..6.. disputes which are not covered by the main issues raised in the petition. This Court is now apprised that the said suit was initially dismissed as default for non prosecution and later the said suit was recalled to file. The main contentions of the petitioners is that the Ext.P-2 patta has been issued under Rule 8(1) of the Kerala Land Assignment Rules, 1964, and the Rule 8(1) as it stood at the time of Ext.P-2 patta dated 16.1.2007 had stipulated that lands covered by pattas is not only heritable but also alienable and there is no restrictive period in exercise of right of alienation unlike the provisions in Rule 8(1A) which is applicable for unoccupied lands wherein such lands covered by such pattas could be alienated only after a period of 3 years. 6. It is not in dispute that Rule 8(1) of the Kerala Land Assignment Rules, 1964, that at the time of issuance of Ext.P-2 patta dated 16.1.2007 as stipulated that such lands covered by such pattas are not only heritable but also alienable without any restrictive period, whereas Rule 8(1A) at the time of issuance of Ext.P-2 patta stipulates that such pattas so issued under Rule W.P.(C).No.34377/2018 **==> picture [18 x 9] intentionally omitted <==** 8(1A) in respect of unoccupied lands could be sold only after a period of 3 years from the date of grant of the patta. Later the Rule making authority has amendments to Rule 8(1) by notification dated 24.1.2009 whereby prospectively it was stipulated that such pattas covered by Rule 8(1) are not alienable for a period of 25 years from the date of registering. This Court in the judgment in _**Bhaskaran P.R. v. State of Kerala**_ reported in _**2010 KHC 6210 = 2010 (2) KLT 908**_ has held that the abovesaid amendment of Rule 8(1) made as per SRO 59/2009 has only prospective effect from 24.1.2009 and will only regulate patta issued on or after 24.1.2009 and will not govern or regulate pattas issued prior to 24.1.2009, which will be regulated by the provisions of the earlier rules. The Government has also clarified the same position as per Government letter No.2184/PI/10/Rev dated 12.4.2010 that the amendment would have effect only from the date of amendment, viz, will have effect only from the date of amendment, 24.1.2009 and will not have retrospective effect and further that the patta issued before 24.1.2009 will be transferable, W.P.(C).No.34377/2018 ..8.. etc. Later amendments have been made in Rule 8(1) initially doing away with the restriction regarding alienation of Rule 8(1) and later reintroducing such restriction for a further period of 12 years. This case not in any manner concerned with those amendments made after the year 2009. The law on the subject is very clear as has been unequivocally declared by this Court in _**Bhaskaran P.R.**_ 's case supra that all such amendments which are prospective will not regulate pattas issued before such amendment notification and will regulate only pattas issued on or after the date of issuance of such prospective amendment notifications. Therefore it is now well settled that the patta has been issued as per Ext.P-2 on the basis of Rule 8(1) as it stood prior to 2009 and then such lands are not only heritable but also alienable without any other restriction. However Rule 8(1A) of the said Rule which is applicable to unoccupied lands has insisted that the though the lands are heritable the same can be alienated only after a period of 3 years from the date of grant of patta. So if the instant Ext.P-2 patta is in substance and essence issued under Rule 8(1) as it stood then, then W.P.(C).No.34377/2018 ..9.. the impugned sale as per Ext.P-4 dated 18.8.2008, is perfectly legal and valid and there is no question of cancelling Ext.P-2 patta on the ground of alleged violation of the said condition. 7. On the other hand in substance and essence if Ext.P-2 patta dated 16.1.2007 has been issued for unoccupied lands as envisaged in Rule 8(1A), the same can be alienated only after a period of 3 years in which case, Ext.P-4 sale deed would amount to contravention of the patta conditions. 8. There is yet another aspect in the matter which would also require clarification. In the case of many pattas issued under Rule 8, it has been stipulated by the patta granting authority that the lands are not alienable irrespective to the fact that Rule 8(1) or Rule 8(1A) had permitted alienation subject to the conditions in those Rules. This Court in the judgment dated 16.11.2008 in the WP(C).17443/2017, in the case in _**Joby Mathew v. State of Kerala and others (2019 (1) KHC 276)**_ has considered the question as to whether patta granting authority like the Tahsildar/Collector/Executive Government could invoke the W.P.(C).No.34377/2018 ..10.. provision in Section 8 of the Act that the lands in question are not alienable even the subordinate legislative instrument has per the Rules clearly provides that such lands shall not only be heritable but also alienable. This Court held in _**Joby Mathew**_ 's case supra that the right of alienation conferred on the assignee as per Rule 8 framed by the subordinate legislature under Sec.7(1)(j) of the Act, which is approved by the Legislature as per Sec.7(2) of the Act, cannot be taken away or abridged by the patta granting authority by stipulating a contra condition in terms of Section 8 of the Act. 9. Therefore it is now well settled that even if the patta granting authority has purportedly imposed the conditions under Section 8 of the Act so as to incorporate the condition in the patta that the lands are not alienable inspite of the specific provisions to the cotrary in Rule 8, then such patta conditions cannot abridge the statutory rights conferred on the assignee for alienation of the land as per Rule 8. The position in this regard is declared and ordered and it is ordered that even if there are any conditions in Ext.P-2 patta imposed by the patta granting authority that the W.P.(C).No.34377/2018 ..11.. lands are not alienable, then such conditions purportedly issued under Section 8 cannot abridge the statutory right of the assignee under Rule 8 to alienate the land. 10. The next factual issue to be considered is as to whether in substance and essence, the Ext.P-2 patta is issued under Rule 8(1) or whether is issued under Rule 8(1A) which is in respect of unoccupied land. That is a factual aspect which has to be properly determined by the 3[rd] respondent Thahsildar who has issued the impugned Ext.P-5 notice after hearing the parties. But this Court has to take note of certain factual aspects inorder to steer clear of certain unnecessary confusions which might arise in view of the pleadings in the statement dated 4.1.2019 filed on behalf of the 3[rd] respondent Thahsildar in this WP(C). 11. In paragraph No.4 of the said statement it is stated that “from the records it is seen that Rule quoted in Ext.P-2 patta is Rule 8(1A) and further that assessment order u/r 9(1) of the Kerala Land Assignment Rules has also been made on 12.1.2007 and that the assignment was subjected to the condition that the property is W.P.(C).No.34377/2018 **==> picture [24 x 7] intentionally omitted <==** not alienable within the time limit prescribed in the Kerala Land Assignment Rules 1964. Further it is stated that Rule 8(1A) stated that notwithstanding anything contained in the sub rule 1 unoccupied land assigned on registry shall not be alienable for a period of 25 years from the date of registry (as per SRO No.621/2017 this time limit was omitted and inserted 12 years) that means once assigned to the assignee should not change hands for at least 25 years, etc.” The said statement made in the paragraph No.4 of the statement of the 3[rd] respondent is absolutely untenable and misleading, to say the least. It is not in dispute that Ext.P-2 patta has been issued on 16.1.2007. Therefore the provision in Rule 8 as it stood at the time of Ext.P-2 patta dated 16.1.2007 is the one that regulate the present case. Reference to the 25 years period, etc are all in respect of amendments made in the year 2009 and thereafter. This Court has clearly and unequivocally declared the legal position in _**Bhaskaran P.R.**_ 's case supra that those amendments are all prospective and will not regulate and govern patta which are issued before such prospective amendment W.P.(C).No.34377/2018 ..13.. of notification and pattas issued before the amendment notification dated 24.1.2009 will not govern and regulate pattas issued before that date. And in the case of such pattas, the same is regulated by Rule 8 as it stood at the time of the grant of such pattas. Therefore the abovesaid averment that the land covered by Ext.P-2 patta are not alienable for a period of 25 years, etc is absolutely incorrect and wrong. 12. Sri.K.J.Mohammed Anzar, learned Special Government Pleader (Revenue) appearing for the official respondents, on the basis of instructions has fairly submitted that the said averments are factually wrong and that Ext.P-2 patta dated 16.1.2007 will be regulated by the provisions of Rule 8 as it stood at the time of grant of that patta. 13. Though it has been stated in the abovesaid statement filed on behalf of the 3[rd] respondent Tahsildar that the Rules quoted in patta is Rule 8(1A), it has also been clearly stated in the written instructions dated 12.10.2018 furnished by the 3[rd] respondent Tahsildar that prohibitory assessment order under W.P.(C).No.34377/2018 **==> picture [24 x 9] intentionally omitted <==** Rule 9(1) was duly issued on 12.1.2007 and it is thereafter Ext.P-2 patta dated 16.1.2007 was issued in favour of the petitioner. Further it is also stated in the written instructions dated 18.12.2018 issued by the 3[rd] respondent Thahsildar that in respect of the occupation of the 1[st] petitioner of the property of total extent of 2 acres and 6 cents comprised in Sy.No.282/IA, land conservancy proceedings were earlier issued against her as per LC No.35/67 and that prohibitory assessment/tax was also imposed on her till 2005-2006 which was remitted by her and that there are also records to show that she has paid prohibitory assessment tax (നനിരരരോധന കരര) in respect of the said occupation of the property till 1989-1990, in the records maintained by the 4[th] respondent Village Officer, Chempu. A reading of Ext.P-1 G.O.(MS) No.335/06/R.D dated 27.11.2006 would also refer to another GO.(MS) No.1044/1982 dated 6.11.1982 which is referred to as 1[st] paper in Ext.P-1 G.O., and that the respondent State Government had granted sanction for assigning the entire extent of 2 acres and 6 cents to the 1[st] petitioner as per the said G.O. Dated 6.11.1982 and W.P.(C).No.34377/2018 **==> picture [24 x 9] intentionally omitted <==** that later since he could not pay the land value, assignment proceedings could not be completed and that later the Government had issued Ext.P-1 G.O.(MS) No.335/06/R.D dated 27.11.2006 for assigning the reduced extent of land, etc. 14. On the basis of the abovesaid facts disclosed in the written instructions dated 12.10.2008 and 18.12.2018 as well as the contentions in Ext.P-1 G.O. Of 1982 referred to therein, Sri.S.Sreekumar, learned Senior Counsel instructed by Sri.P.Martin Jose, learned counsel appearing for the petitioners, would submit that these are all clear materials which would unerringly point out to the fact that the 1[st] petitioner was in occupation of the land at least since the year 1967 inasmuch as the 3[rd] respondent Thahsildar has admitted that land conservancy (LC) case has been registered in the year 1967 and further that the government has also admitted in Ext.P-1 that a G.O. Was issued in the year 1982 for assigning said property, etc. On the basis of these materials, learned Senior Counsel appearing for the petitioners would contend that though the 1[st] petitioner's case is W.P.(C).No.34377/2018 ..16.. that she has been in occupation of the said property since the year 1960, it can be seen that at least she was having unobstructed and unopposed possession of the said property atleast since 1967 onwards. Further that the prohibitory assessment tax (നനിരരരോധന കരര) is one envisaged under Rule 9 of the Kerala Land Assignment Rules and that the abovesaid factual statements of the 3[rd] respondent Thahsildar would also show that such prohibitory assessment tax was enforced on the 1[st] petitioner and paid by her from the year 1989-1990 and as well as 2005-2006,etc and that therefore it is urged by the Senior Counsel appearing for the petitioners that the 1[st] petitioner was in actual occupation and possession of the said property long prior to Ext.P-2 patta and that therefore irrespective as to the Rule quoted as per Ext.P-2, in essence and substance, she was having possession over the said property and therefore the patta that has been issued is only under Rule 8(1), which has permitted alienation at the time of issuance of Ext.P-2 patta, etc. 15. This Court is not proposing to make any final W.P.(C).No.34377/2018 **==> picture [23 x 9] intentionally omitted <==** pronouncement on the said issue, as the matter is now pending consideration before the 3[rd] respondent Thahsildar. The abovesaid aspects relating to the patta conditions was adverted to by this Court only to ensure that the correct Rules are followed by the 3[rd] respondent Thahsildar more so particularly, since patent mistakes have been disclosed in the statement filed on behalf of the 3[rd] respondent as stated herein above, which has also been acknowledged fairly by the learned Special Government Pleader (Revenue). 16. As regards the 2[nd] aspect now canvassed by the learned Senior Counsel appearing for the petitioners, it is only to be held by this Court that what is to be examined is not as to the exact Rule that is quoted in Ext.P-2 patta but as to under which substantive provision of the Rule that Ext.P-2 patta has been issued, that is as to whether the patta in substance is issued under Rule 8(1) or under Rule 8(1A) as it stood at the time of Ext.P-2 patta dated 16.1.2007. That is a factual aspect which should be carefully and duly evaluated and considered by the 3[rd] respondent, on the basis of the W.P.(C).No.34377/2018 ..18.. facts fairly disclosed in the abovesaid written instructions dated 12.10.2008 and 18.12.2018 furnished by the 3[rd] respondent Thahsildar as well as the factual aspects discernible from Ext.P-1 G.O. as well as the 1982 G.O., referred to therein. Even in paragraph 4 of the statement dated 4.1.2019 filed by the 3[rd] respondent Thahsildar, it has been stated assessment order under Rule 9 of the Kerala Land Assignment Rules has also been instituted against the 1[st] petitioner on 12.1.2007. Therefore the 3[rd] respondent would carefully evaluate the abovesaid factual aspect and should determine as to whether going by the available factual materials as to whether the 1[st] petitioner was in occupation of the said property prior to grant of patta dated 16.1.2007 and if it so held then not withstanding the fact that the Rule quoted in Ext.P-2 is one under Rule 8(1A), the grant would have been substantively only under Rule 8(1) which has permitted alienation as it stood at the time of Ext.P-2 patta dated 16.1.2007. 17. This Court would fully trust that the 3[rd] respondent Thahsildar will fairly and impartially assess those factual aspects W.P.(C).No.34377/2018 **==> picture [24 x 9] intentionally omitted <==** and reach at a proper factual conclusion in the matter. The 3[rd] respondent Thahsildar will afford reasonable opportunity of being heard to the petitoners as well as the respondents 5 and 6 either in person or through their authorised representative if any, and then will render a considered decision in the matter without much delay, preferably within a period of 2 months from the date of production of a certified copy of this judgment in the light of the abovesaid observations made by this Court herein above. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C).No.34377/2018 ..20.. ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1 A TRUE COPY OF ORDER DATED 27/11/2006 OF 1ST RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF PATTA DATED 16/01/2007 IN RESPECT OF LAND IN SY.NO.282/IA OF CHEMBU VILLAGE, TO THE 1ST PETITIONER.** - **EXHIBIT P3 A TRUE COPY OF BASIC TAX RECEIPT DATED 23/05/2007.** - **EXHIBIT P4 A TRUE COPY OF SALE DEED NO.2516 OF 2008 DATED 18/08/2008 OF VAIKOM SUB REGISTRY.** - **EXHIBIT P5 A TRUE COPY OF NOTICE DATED 10/11/2017 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS.** - **EXHIBIT P6 TRUE COPY OF EXPLANATION DATED 22/11/2017 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF ADDITIONAL EXPLANATION DATED 4/12/2017 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF NOTICE DATED 4/10/2018 ISSUED BY THE 3RD RESPONDENT.** W.P.(C).No.34377/2018 ..21.. ## **RESPONDENTS' EXHIBITS:** - **EXHIBIT R-5(A) TRUE COPY OF THE BUILDING TAX ASSESSMENT REGISTER MAINTAINED WITH THE CHEMPU GRAMA PANCHAYAT FOR THE YEAR 2006** - **EXHIBIT R-5(B) TRUE COPY OF THE ROUGH SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER IN OS.NO.133/2018** - **EXHIBIT R-5(C) TRUE COPY OF THE APPLICATION DATED 9.10.2017 SUBMITTED BY THE 5TH RESPONDENT TO THE CHEMPU GRAMA PANCHAYAT** - **EXHIBIT R-5(D) TRUE COPY OF THE REPLY NO.HC 5044/17 ISSUED BY THE PUBLIC INFORMATION OFFICER, CHEMPU GRAMA PANCHAYAT DATED 3.11.2017** - **EXHIBIT R-5(E) TRUE COPY OF THE INVITATION CARD CIRCULATED BY THE 2ND PETITIONER IN RELATION TO INAUGURATION OF KERALA PALACE.** - **EXHIBIT R-5(F) TRUE COPY OF EXT.P2 PATTA OBTAINED BY THE RESPONDENT UNDER THE RIGHT TO INFORMATION ACT.** **EXHIBIT R-5(G) TRUE COPY OF THE COMMUNICATION NO.B1.7/07 ISSUED BY THE TAHSILDAR, VAIKOM DATED 11.4.2007 TO THE 1ST PETITIONER.**