V. Madhava Bhatt; V. Padmanabha Bhhat; Faizal C.K. v. Local Level Monitoring Committee, Krishi Bhavan, Vyttila, Ernakulam; Revenue Divisional Officer, Fort Kochi; Tahsildar, Kochi Taluk; Village Officer, Rameswaram Village; Sub Registrar, Kochi

## **(C.R)** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 25TH DAY OF SEPTEMBER 2018 / 3RD ASWINA, 1940** ## **WP(C).No. 28258 of 2018** ## **PETITIONER/S:** - **1 V.MADHAVA BHATT C.C.IV/1078, VADAKKE CHERLAI, KOCHI** - **2 V.PADMANABHA BHAT C.C.IV/1078, VADAKKE CHERLAI, KOCHI** - **3 FAIZAL C.K., C.C.2/1006, KONCHERRY HOUSE, FORT KOCHI** **BY ADV. SRI.P.P.JACOB** ## **RESPONDENT/S:** - **1 THE LOCAL LEVEL MONITORING COMMITTEE KRISHI BHAVAN, VYTTILA, ERNAKULAM, REPRESENTED BY ITS CONVENER 682010** - **2 THE REVENUE DIVISIONAL OFFICER R.D.O.OFFICE, FORT KOCHI-682 001** - **3 THE TAHSILDAR KOCHI TALUK OFFICE, KOCHI-682 001** - **4 THE VILLAGE OFFICER RAMESWARAM VILLAGE, KOCHI-682 001** - **5 THE SUB REGISTRAR OFFICE OF THE SUB REGISTRY, KOCHI-682 002** **BY ADV. GOVERNMENT PLEADER** ## **OTHER PRESENT:** **SMT.A.C.VIDHYA,GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C)No.28258 of 2018 2 **ALEXANDER THOMAS, J. ================== W.P.(C).No. 28258 of 2018 ================== Dated this the 25[th] day of September, 2018 J U D G M E N T** **Petitioners 1 and 2 state that they are the title holders of 76.12 Ares of landed property situated in Sy.No.683/4 and 1.2 Ares of property in Sy.No.638/3 of Rameswaram village, Kochi Taluk, Ernakulam revenue district. That the said property had originally belonged to one Dr.J.Ananda Bhat and Smt.Rema Bhai Bhat, who had executed registered will bearing No.66/1989 of SRO, Kochi, wherein the said property has been clearly described as one with coconut plantation. That the said property has consistently been** _**purayidam**_ **(dry land). That however, earlier, some mistakes had crept in, whereby in the basic tax register (BTR) the said property was wrongly described as “** _**paddy land**_ **(nilam)”. That the said property has been clearly described as per serial No.250 of Ext.P-2 data bank prepared as per the provisions of the Kerala** W.P(C)No.28258 of 2018 3 **Conservation of Paddy Land and Wet Land Act, 2008 with the description, “** ന�ള�തവര� പ�യ�ടമ�യ� സ� ഥ�ത�ര�യന **” . That is, till date, the property is existing as “purayidam/dry land”. That later pursuant to the directions issued by this Court in Ext.P-7 judgment dated 20.12.2017 in W.P.(C).No.38215/2017, proceedings have now been issued as per Ext.P-8 by the competent authority concerned, whereby the said property has been excluded/deleted from the purview of the data bank prepared as per the abovesaid 2008 Act and on this basis, it is pointed out that the said property is clearly not a wet land or paddy land as on the date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act,2008, which came into force on 12.8.2008. That petitioners 1 and 2 are elderly senior citizens in their eighties and they were unable to take care of the said property and the Cochin Municipal Corporation had issued notice to them as per Ext.P-1 stating that the property is breeding ground of** W.P(C)No.28258 of 2018 4 **mosquitos, as a small area of that property is water logged and hence petitioners 1 and 2 were directed to take necessary steps to abate the said problem, etc. That complaint was also filed before the 2[nd] respondent R.D.O., who called for a report from the 4[th] respondent Village Officer, who filed report dated 6.11.2012, vide No.2382/12 that the property is dumped with waste and in rainy season, waste water is being collected, which is making water logged situation, causing difficulties of mosquitos, growing of wild shrub, etc. Hence, petitioners 1 and 2 had to take steps to remove such problems caused by water logging by filling up the property with old building materials and other substances and that they had entrusted the above task to a neighbouring person, who has agreed to take steps to avoid the water logging in order to remove the problem of breeding of mosquitos, etc. While so, the 4[th] respondent Village Officer had issued Ext.P-3 stop memo dated 10.11.2017 alleging that the attempt** W.P(C)No.28258 of 2018 5 **of petitioners 1 and 2 is to fill up the land, in violation of the provisions of the Kerala Land Utilization (KLU) Order as well as the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and that the said activity undertaken without prior permission of the authorities concerned should be stopped immediately. The 1[st] and 2[nd] petitioners had thereupon informed the 4[th] respondent Village Officer that the property does not come within the ambit of abovesaid 2008 Act and that the property is described as “** _**purayidam**_ **” in the data bank. Petitioners 1 and 2 had thereafter filed formal application as per Ext.P-4 before the 2[nd] respondent R.D.O., for issuance of formal orders under Rule 6(2) of the Kerala Land Utilization Order so as to remove the incorrect entry in the BTR as “** _**nilam/paddy land**_ **” and to correctly describe the said property as “purayidam”, etc. The 2[nd] respondent R.D.O. has rejected the request of petitioners 1 and 2 in Ext.P-4 as per Ext.P-11** W.P(C)No.28258 of 2018 6 **proceedings dated 28.6.2018, which has been** **challenged by the petitioners in W.P.(C).No. 24096/2018 and the same is now pending before this Court. Further according to the petitioners, the property in question is situated in a commercial area and in the midst of residential buildings. Pursuant to Ext.P-3 stop memo dated 10.11.2017 issued by the 4[th] respondent Village Officer, the 2[nd] respondent R.D.O/Sub Collector has also initiated proceedings dated 27.11.2017 in that regard.** **2. It is further stated that petitioners 1 and 2 have urgent need of money and therefore they have decided to sell a part of the abovesaid property to the 3[rd] petitioner, for which purpose 1[st] and 2[nd] petitioners have executed Ext.P-13 agreement for sale. For effectuating the sale transaction, petitioners 1 and 2 were told to obtain the record of rights (ROR) of the said property from the 4[th] respondent. Later it was learnt by petitioners 1 and 2 that the 5[th] respondent Sub Registrar has made an** W.P(C)No.28258 of 2018 7 **entry of encumbrance in respect of the 1[st] and 2[nd] petitioners' property based on the abovesaid proceedings initiated by the 2[nd] respondent in pursuance of Ext.P-3 stop memo and that the in view of the said encumbrance, the 4[th] respondent may not properly issue ROR in respect of 1[st] and 2[nd] petitioners' property.** **3. The petitioners have separately filed W.P. (C).No.20217/2018 for challenging Ext.P-9 proceedings herein as well as W.P.(C).No. 24096/2018 for challenging Ext.P-11 proceedings.** **4. The limited grievance raised in this Writ Petition is regarding the legality and correctness of the action taken by the 5[th] respondent-SRO in noting encumbrance against 1[st] and 2[nd] petitioners' property as per the impugned Ext.P-14 encumbrance certificate pased solely on the basis of the proceedings taken by the 4[th] respondent and 2[nd] respondent in pursuance of Ext.P-3 stop memo. Further 1[st] and 2[nd] petitioners also seek directions** W.P(C)No.28258 of 2018 8 **for issuance of proper encumbrance certificate without noting such encumbrance based on Ext.P-3 and also for directions to the 4[th] respondent Village Officer to issue the ROR in respect of 1[st] and 2[nd] petitioners' property without any such encumbrance so that 1[st] and 2[nd] petitioners can fulfill their obligations for sale of part of the property to the 3[rd] petitioner.** **5. It is in the light of these factual averments that 1[st] and 2[nd] petitioners have filed the instant Writ Petition (Civil) with the following prayers:** _**''i. Issue a writ of certiorari or any other writ order or direction calling for the records relating to the entries entered in the records of the sub registry office as liability pursuant to the stop memo issued by the respondents 2 to 4 as evidenced by Ext.P14 and quash the same.**_ _**ii. Issue a writ of mandamus or any other writ order or direction directing the fourth respondent to issue necessary proceeding relating to the rights of records of the property of the petitioners 1 & 2 covered by Ext.P13 agreement in order to furnish the same to the sub registry office, Kochi to register the document in terms of the provisions of the Registration Act.**_ W.P(C)No.28258 of 2018 9 _**iii. Issue such other reliefs which may be deem fit and proper in the facts and circumstances of the above writ petition.''**_ **6. Heard Sri.P.P.Jacob, learned counsel** **appearing for the petitioners and Smt.A.C.Vidhya, learned Govt. Pleader appearing for the respondents.** **7. This Court had earlier directed the competent authority among the respondents, more particularly, the 1[st] respondent to file an affidavit or statement to clearly state as to whether 1[st] and 2[nd] petitioners' land in question is a wet land or paddy land as on the coming into force of the Kerala Conservation of Paddy Land & Wet Land Act, 2008 and also the details regarding Exts.P2 and P-8. Pursuant thereto, the 1[st] respondent has filed a statement dated 24.9.2018, through the learned** ## **Government Pleader, which reads as follows:** _**''1. The above statement is filed without prejudice to the right of the respondent to file a detailed counter affidavit as and when required.**_ _**2. It is submitted that the 76.12 Ares of landed property situated in Sy.No.638/4 as well**_ W.P(C)No.28258 of 2018 10 _**as 1.21 Ares of property in Sy.No.638/3 of the Rameswaram Village belonging to the petitioner are converted into dry land prior to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act 2008. As such the land is shown as converted land in Draft Data Bank and the same is produced by the petitioner as Exhibit P2.**_ _**3. It is submitted that the Exhibit P2 is the Draft Data Bank in which the property of the petitioner in Sy.Nos.683/3,4 is shown as converted land. As per the direction of this Hon'ble Court in W.P(C) No.38215/2017 LLMC convened meeting and decided to remove the said property from the Data Bank and the same was informed to the Revenue Divisional Officer as per Exhibit P8 letter for taking further proceedings.**_ _**4. It is submitted that there are more than 15 coconut trees in the said property aged 25 years. It is further submitted that the properties are surrounded by buildings on all four sides.”**_ **8. From a reading of the abovesaid statement filed on behalf of the respondents, it is crystal clear that 1[st] and 2[nd] petitioners' property covered by Exts.P-2 and P-8 is not a wet land or paddy land as on the coming into force of the abovesaid 2008 Act.** **9. Though it is stated in the abovesaid statement dated 24.9.2018 that the said property is converted into dry land, it is clearly discernible from serial No.250 of Ext.P-2 issued under Ext.P-2** W.P(C)No.28258 of 2018 11 **data bank that the property of petitioners 1 and 2 is described as “** ന�ള�തവര� പ�യ�ടമ�യ� സ� ഥ�ത�ര�യന **, i.e. till date, the property of the petitioners 1 and 2 has existed as “purayidam”. Now proceedings have also been issued by the competent authorities under the 2008 Act, as per Ext.P-8 that 1[st] and 2[nd] petitioners' land has been totally excluded from the purview of the data bank prepared in accordance with the said 2008 Act and this is because the said property is not wet land or paddy land as on the coming into force of the 2008 Act. Therefore, it is clear like the day light that 1[st] and 2[nd] petitioners' property in question mentioned in Exts.P-2 and P-8 is not a wet land or paddy land as on the date of coming into force of the abovesaid 2008 Act. The provisions contained in Secs.3, 13 and 23 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 provide as follows:** _**“Sec.3: Prohibition on conversion or reclamation of paddy land. (1) On and from the date of commencement of this Act, the owner, occupier or the person in custody of any paddy land shall not**_ W.P(C)No.28258 of 2018 12 _**undertake any activity for the conversion or reclamation of such paddy land except in accordance with the provisions of this Act.**_ _**(2) Nothing contained in sub-section (1) shall apply to the cultivation of any intermediary crops that are cultivated without changing the ecological nature of that paddy land or the strengthening of the outer bunds for protecting the cultivation.**_ ## _**xxx xxx xxx**_ _**Sec. 13: Power of the District Collector.Notwithstanding anything contained in this Act, the Collector may take such action, as he deems fit, without prejudice to the prosecution proceedings taken under the Act, to restore the original position of any paddy land or wetland reclaimed violating the provisions of this Act, and realize the cost incurred in this regard from the holder or occupier of the said paddy land or wetland, as the case may be, so reclaimed after giving him a reasonable opportunity of being heard.**_ ## _**xxx xxx xxx**_ _**Sec. 23: Penalty.- Any person who in violation of the provisions of this Act converts or reclaims any paddy land or wetland notified under sub-section (4) of Section 5, shall on conviction be punishable with imprisonment for a term which may extend to two years but shall not be less than six months and with fine which may extend to one lakh rupees but shall not be less than fifty thousand rupees.”**_ **10. As 1[st] and 2[nd] petitioners' property is not a wet land or paddy land as on the coming into force of the 2008 Act, the said property stands excluded from the purview of the provisions as in Secs.3, 13 and 23 of the abovesaid Act. Though it is stated in Ext.P-3 stop memo that 1[st] and 2[nd] petitioners have** W.P(C)No.28258 of 2018 13 **violated, not only the provisions of the Kerala Land Utilization Order, but also the provisions of the 2008 Act, it is clear that the said provisions in the 2008 Act as in Secs.3, 13 and 23 cannot be pressed into service as against 1[st] and 2[nd] petitioners' property. So the impugned entry of encumbrance in Ext.P-14 encumbrance certificate therefore can at best be pressed into service only on the alleged violation of the provisions of the Kerala Land Utilization Order. Even though going by the case of the respondents as projected in the abovesaid statement dated 24.9.2018, 1[st] and 2[nd] petitioners' land has been converted into dry land long prior to coming into force of the 2008 Act. Serial No.250 of Ext.P-2 data bank would show that the land has consistently been existing as purayidam. “(** ന�ള�തവര� പ�യ�ടമ�യ� സ� ഥ�ത�ര�യന **)”. Even if it is assumed that 1[st] and 2[nd] petitioners' land was converted as dry land prior to the coming into force of 2008 Act, the question then arises whether action** W.P(C)No.28258 of 2018 14 **could be taken against 1[st] and 2[nd] petitioners' land under the Kerala Land Utilization Order for the alleged filling up of the water logged area of the land and whether any adverse orders could be issued against petitioners 1 and 2 under the provisions of the Kerala Land Utilization Order. It is the specific case of the petitioners that the property situated in a commercial area and in the midst of residential buildings and commercial buildings and further that the entry in the basic tax register showing it as** _**“paddy land” “(nilam)”**_ **is a mistake, etc. It is admitted in the statement dt.24.9.2018 of the respondents that the property is surrounded by buildings on all four sides. So the properties adjacent to the above property are not paddy lands.** **11. The 1[st] and 2[nd] petitioners had submitted Ext.P-4 application under Rule 6(2) of the Kerala Land Utilization Order so as to remove the entry in the BTR showing it as “** _**nilam/paddy land**_ **” and in order to show it as “** _**purayidam/dry land”**_ **and the** W.P(C)No.28258 of 2018 15 **said request has been rejected by Ext.P-11, which has now been impugned in W.P.(C).No.24096/2018 which is pending. The operative portion of Ext.P-11 order reads as follows:** _**"**_ ഉത�വ� ര��ച� ത�ലക�ൽ ��മമശ��� വ�മ ജ�ൽ ഉൾര#ട സർമ& നമർ _**638/4**_ ഇൽ ര)ടത� ബ� _**.**_ ട� _**.**_ ആർ _**.**_ പ���� ന�ലമ�യ� മ�ഖര#ടത�യതമ�യ വസ രവളരകട�യ� സ�ത� ര�യ� രനത� �മട�ക�ട� ന�ലന�ന�രനതമ�യ സലമ�ര7ന� എന�ൽ ട� വസ അനധ�കതമ�യ� )��വർതനര#ട ത�യ�ടളത�യ� മബ�ധ>ര#ട�ടളത�7� _**.**_ )��ത� വസവ�ൽ ര� _**.**_ എൽ _**.**_ യ _**.**_ ഉത�വ�ര?യ� മ��ള _**.**_ രനൽവയൽ തണAർതട സ��ക7 ന�യമത�ര?യ� ല�ഘന� നടനത�യ� മബ�ധ>ര#ട�ടണ� ഇക��7ത�ൽ ര� _**.**_ എൽ _**.**_ യ _**.**_ ഉത� വ�ന�യ� വസ ഉടമയ�യ ശA _**.**_ മ�ധവ ഭട� _**,**_ ശA _**.**_ )തന�ഭ ഭട� എന�വർ സമർ#�ച അമ)ക ഇത�ന�ൽ ന��സ�ച ഉത�വ�കന _**.**_ ബഹമ�നര#ട മ��ള ഹLമക�ടത�യരട _**20/12/17**_ തAയത�യ�രല _**WP(C) 38215/17**_ നമർ ഉത�വ� ഇത�ന�ൽ )�ല�ച���കന _**.**_ **==> picture [365 x 36] intentionally omitted <==** **Though Ext.P-11 order has been issued rejecting the request of petitioners 1 and 2 in Ext.P-4, the respondents have no case that any final adverse orders have been issued in respect of 1[st] and 2[nd] petitioners' property under Rule 7 of the Kerala Land Utilization Order for the allegations raised in Ext.P-3 stop memo. Ext.P-3 stop memo dt.10.11.2017 reads as follows:** W.P(C)No.28258 of 2018 16 ## _**"**_ മU�# രമമമ�� ��മമശ��� വ�മ ജ�ൽ )ളരത� ധന�ന�� മറ�ഡ�രല _**S. N.**_ ജ�ഗഷന�ൽ ന�ന� )ട�ഞ�മറ�ട� _**DLB**_ ���ർമടഴ� സ� മറ�ഡ�ൽ ഉമ[ശ� _**200**_ )ട�ഞ�റ� മ�റ� വടമക�ടള വഴ� എതന�ടത സ�ത� ര�യന സർരവ നമർ _**638/4**_ ഇൽ ര#ട ഉമ[ശ� _**02**_ ഏകർ _**42**_ രസ?� _**250 sq. links**_ ന�ലത�ൽ _**(**_ വ� ജ� റ�ക�ർഡ�ൾ പ���� _**)**_ ഉമ[ശ� _**30**_ രസ?� ത�ങൾ മ��ള� ല�ൻഡ� യട�ഹലമസഷൻ ഓർഡർ _**1967,**_ മ��ള� രനൽവയൽ _**-**_ തണAർതട സ��ക7 ന�യമ� _**2008**_ എന�വയ�രല വ>വസ�ൾ ല�ഘ�ച ര��ണ� ര�ട�ട�വശ�ഷങൾ ഉ)മയ�ഗ�ച� ന��ത� )��വർതന� ര�യനത�ന�യ� അറ�വ�യ�ടളത�7� _**.**_ ഏരതങ�ല� അധ����സ�നങള�ൽ ന�ന� ന�യമ�നസ�7� അനവ�ദ� വ�ങ�രത ര�യന ട� പവർത� അട�യന��മ�യ� ന�ർത�വയവ�ൻ ഇത�ന�ൽ ത�ങരള അറ�യ�ച ര��ളന _**.”**_ **12. The petitioners would contend that no adverse final orders could be passed against the abovesaid property solely on the basis of the allegation in Ext.P-3 memo by taking recourse to the provisions contained in Rule 7 of the KLU Order as it is indisputable fact that the said property, which is “** _**purayidam/converted land**_ **” is situated in the commercial area and in the midst of residential buildings and commercial buildings. That it is further pointed out that it is admitted in para 4 of the abovesaid statement dated 24.9.2018 filed on behalf of the respondents that the property is surrounded by buildings on all four sides and having coconut trees aged more than 25 years.** W.P(C)No.28258 of 2018 17 **13. The main issue to be determined in this case is as to whether the 5[th] respondent Sub Registrar has jurisdiction and competence to note the encumbrance in the impugned Ext.P-14 encumbrance certificate solely on the basis of the allegations in Ext.P-3 stop memo. The impugned entry in Ext.P-14 encumbrance certificate in respect of the abovesaid property reads as follows:** ബ�ദ>ത� വ�വ�ങൾ തAയത�: 09/04/2018 സർട�ഫ�കറ� ന�: 8789/18 Lർജ� നമർ: 7687/18 ഐ.ഡ�. : P8793474 അമ)ക�ര? മ)�� :FAIZAL, 2/980, FORTKOCHI വസ വ�വ�� : ��മമശ��� വ�മ ജ� Sy.638/4 Area: 76 Ar 12.00 Sqm, Blk-000 Re.Sy.638/3Area: 1Ar 21.00 Sqm, Blk-000, Re.Sy. ത **�** ച�ൽ നടത�യ ��ല� : 01/01/1985 മതൽ 23/03/2018 വര� സർട�ഫ�കറ�ര? ആവശ>�ത : GENERAL എഴത� ആധ�� എഴത� വ�ങ�യ കമ നമർ വസ വ�വ�� ആധ��� �ജ�Uർ ത�ര? രക�ടത ആൾ ആധ��� �ജ�Uർ .ര�യ� ത ര�യ തAയത� സലയ� ആൾ സ�ഭ� വവ� വ�ല>� മ)ജ� നമർ 1 ��മമശ��� വ�മ ജ�, Sch.20/12 മ��ടത� /സബ� �ളകർ, ര��ച�, ര� 1. - 2293 38788 F204/2017 No.1/1 Sy.638/4, Area:/2017 റവനp ഉത�വ� 7429/17 തAയത� 27/11/17 BLK-000 ന�ല� ന�ല� ന��ർതൽ ന **�** ർതൽ വ�. മ�ധവഭട�. സ�.സ�. v/1078 വടരക ര�റള�യ� )ദമന�ഭഭട�. സ�.സ�. v/1078 വടരക ര�റള�യ� **12. As the abovesaid property is not a wet land** **or paddy land as on the coming into force of the 2008 Act, the main issue in that regard to be** W.P(C)No.28258 of 2018 18 **determined is as to whether the 5[th] respondent could note an encumbrance as in Ext.P-14 encumbrance certificate solely on the basis of the allegation in Ext.P-3 regarding the alleged violation of the KLU Order due to the incidents of filling up of some of the water logged area therein.** **14. The matters relating to the issuance of the encumbrance certificate are regulated by the provisions contained in Rules 168 to 171 of the Kerala Registration Rules framed under the enabling provisions contained in the Kerala Registration Act, 1908. Rules 168 to 171 of the Kerala Registration Act, 1908, which deal with “Certificate of encumbrance” provide as follows:** _**''168. When an application is made for a search for encumbrances in respect of any immovable property or properties, belonging to a single individual or family or for a list of documents executed, by or in favour of, a single individual or family, and the applicant desires that a certificate of encumbrance or a list of documents found in the course of such search should be furnished to him by the Registering Officer, the request shall be complied with. The certificate or list shall be in the form prescribed in Appendix-VII.**_ W.P(C)No.28258 of 2018 19 _**169. In the case of searches for a list of documents executed by, or in favour of a particular individual or family, the list shall show the number, date, nature and value, of the several documents found, as well as the names of the parties and the village in which property affected, if any, is situated; but no description of the properties affected by the documents should be given as in the case of encumbrance certificates on properties. The list shall not include particulars of documents registered in Register Books 3 and 4 unless the applicant is entitled to copies of the entries (Section 57 of the Act).**_ _**170. A certificate of encumbrance shall be in Malayalam. If the party requires the certificate to be prepared in English the request may be complied with.**_ _**171. A certificate of encumbrance shall contain a complete list of all acts and encumbrances affecting the property in question.''**_ **15. It has been held by the Apex Court in the case in** _**State of H.P. v. Tarsem Singh & Ors.**_ **[(2001) 8 SCC 104], para.7, that the word “** _**Encumber**_ **” means burden of legal liability on the property. P.Ramanatha Aiyar's Advanced Law Lexicon (4[th] edition, published by Lexis Nexis, Butterworths), deals with the definition of encumbrance and therein** **it is stated that the Encumbrance is “an infringement of another's right or intrusion on another's property or a right or interest in** W.P(C)No.28258 of 2018 20 **property owned by a person other than the owner of the property and examples are a mortgage or charge. Such property is called “encumbered property.” The judgment of the Apex Court in** _**A.I Champadany Industries Limited v. Official Liquidator and Anr.**_ **[(2009)4 SCC 486], p.490, para.13, it has been held that “the word 'encumbrance' means a burden or charge upon property or a claim or lien upon an estate or on the land.” It will be profitable to refer to para 13 of the abovesaid judgment of the Apex Court in** _**A.I Champadany Industries Limited v. O.L. & Anr. [(2009)4 SCC 486], p.490-491, which reads as follows:**_ _**'13. We may, however, notice some dictionary meanings of the said word as reliance thereupon has been placed by Mr Sibaji Sen. In Stroud’s Judicial Dictionary of Words and Phrases, 5th Edn., encumbrance is defined as:**_ _**“being, ‘a claim, lien, or liability, attached to property’; and this definition is wide enough to cover the plaintiff’s claim, which was, as assignee for value of a reversionary interest, against a person coming in under a subsequent title”.**_ _**In Supreme Court on Words and Phrases it is stated that**_ _**“the word ‘encumbrance’ means a burden or charge**_ W.P(C)No.28258 of 2018 21 _**upon property or a claim or lien upon an estate or on the land”.**_ ## _**In Advanced Law Lexicon, encumbrance is defined as:**_ _**“An infringement of another’s right or intrusion on another’s property.”**_ _**In Black’s Law Dictionary encumbrance is defined as:**_ _**“Any right to, or interest in, land which may subsist in another to diminution of its value, but consistent with the passing of the fee….”**_ _**Encumbrance, therefore, must be capable of being found out either on inspection of the land or the office of the Registrar or a statutory authority. A charge, burden or any other thing which impairs the use of the land or depreciates in its value may be a mortgage or a deed of trust or a lien or an easement. Encumbrance, thus, must be a charge on the property. It must run with the property. If by reason of the statute no such burden on the title which diminishes the value of the land is created, it shall not constitute any encumbrance.”**_ **16. Generally encumbrance means a right other** **than ownership interest in real property and the term includes a mortgage or other lien on real property. It has been held by the Apex Court in the case in** _**Mange Ram v. Financial Commissioner & Ors.**_ **[(2003) 2 SCC 1], para 2 = [AIR(2003) SC 807] that “** _**a lease or a mortgage**_ **” comes within the meaning of the word ‘** _**encumbrances**_ **’. As held** W.P(C)No.28258 of 2018 22 **in the above referred decision of the Apex Court in the case in** _**Mange Ram's case supra**_ **that the word “** _**encumbrance**_ **” has to be read in the sense of a legal encumbrance like a lease or a mortgage. As held in** _**A.I Champadany Industries Limited v. O.L. and another**_ **[(2009) 4 SCC 486], para.13, encumbrance must be a charge on the property and it must run with the property and if by reason of the statute no burden on the title which diminishes the value of the land is created, it shall not constitute any encumbrance. In the decision in** _**Collector of Bombay v. Nusserwanji Rattanji Mistri & Ors.**_ **reported in AIR 1955 SC 298, a 3-Judge Bench of the Apex Court therein has held in para 13 thereof that “encumbrance” cannot include the right of the Government to levy assessment on the lands.** **17. Coming to the facts of this case, it is** W.P(C)No.28258 of 2018 23 **beyond dispute that the property in question is not a paddy land or wet land as on the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. Therefore, the question as to whether the liability, if any, conceived in the provisions as in Secs.3, 13 and 23 of the abovesaid 2008 Act could be the basis for the impugned encumbrance entry in Ext.P-14 does not actually arise for consideration in the facts of this case. The only question is as to whether the alleged violation of the KLU Order as stated in Ext.P-3 could be the legal basis for entering the encumbrance in Ext.P-14 encumbrance certificate. Orders 6 and 7 of the Kerala Land Utilization Order, stipulate as follows:** _**“6: Land cultivated with any food crop not to be cultivated with any other food crop. (1) No holder of any land, which has been under cultivation with any food crop for a continuous period of three years immediately before the commencement of this Order, shall convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other**_ W.P(C)No.28258 of 2018 24 _**purpose except under and in accordance with the terms of a written permission given by the Collector.**_ _**Explanation.- For the purpose of this sub-clause and sub-clause (2), removal of tree-growth, whether partial or total, on any land cultivated with cardamom shall be deemed to be an attempt to convert or utilise such land for a purpose other than cultivation of cardamom.**_ _**(2) No holder of any land who cultivates any land with any food crop for a continuous period of three years at any time after the commencement of this Order shall, after the said period of three years, convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector:**_ _**Provided that except in the case of lands under cardamom cultivation, no permission under sub-clause (1) or sub-clause (2), shall be necessary where the cultivation for which the land is converted or attempted to be converted or attempted to be converted or utilised or attempted to be utilised is paddy cultivation or fish culture:**_ _**Provided further that the lands under cultivation of paddy should not be converted or attempted to be converted or utilised or attempted to be utilised for fish culture permanently, but only seasonally.**_ _**7: Power of Collector to direct cultivation of land with the food crop which was being cultivated.- (1) If it appears to the Collector that any person is attempting to contravene the provisions of sub-clause (1) or sub-clause (2) of clause 6, then, notwithstanding anything contained in any law, order, custom or practice for the time being in force, and without prejudice to any other action that may be taken against such person, the Collector may, by notice in writing in Form E, call upon such person to cultivate such land with those food crops which were under cultivation in the land in the three years referred to in sub-clause (1) or sub-clause (2) as the case may be, of clause 6, either personally or through any other person, within the period specified in the notice:**_ _**Provided that no such notice shall be issued unless such person has been given an opportunity of being heard:**_ _**Provided further that no such notice shall be issued**_ W.P(C)No.28258 of 2018 25 _**to the holder of any land if the cultivation attempted to be made in that land is paddy cultivation.**_ _**(2) Every notice issued under sub-clause (1) shall be served in the manner provided in sub-clause (2) of clause 4.**_ _**(3) If the person to whom a notice under subclause (1) has been served does not comply with the notice within the time specified in the notice or within such further time as may be allowed by the Collector, the Collector may, without prejudice to any other action that may be taken against him, by order direct and arrange for the sale by public auction of the right to cultivate the land as provided for in Clause 5, subject to such conditions as may be specified in the order.**_ _**(4) Every order made under sub-clause (3) shall be in Form F.**_ _**(5) Out of the amount realised by sale as provided in sub-clause (3), the revenue due on the land and other dues to the Government, if any, shall first be adjusted and the balance made over to the holder of the land by way of compensation.**_ _**Note.- Twenty five per cent of the bid amount shall be collected immediately after the sale and the balance within ten days. The sale will be confirmed only after the realisation of the entire amount. Failure to remit the balance amount within the said period of ten days will entail forfeiture of the initial deposit.**_ _**(6) Every successful bidder, on confirmation of the sale mentioned in this clause shall be given a certificate of sale in Form D, incorporating the conditions of such sale.”**_ ## **18. If, a as a matter of fact, the property** **is consistently a** _**purayidam**_ **as shown in Ext.P-2 or it is converted land prior to coming into force of the 2008 Act as now averred in the** W.P(C)No.28258 of 2018 26 **statement of the respondents and the property is in the midst of a commercial area surrounded on all four sides by commercial and residential buildings as conceded by both sides, then prima facie, it is highly doubtful whether the competent authority could pass final orders as per Rule 7 of the KLU Order so as to direct the property owner to recommence paddy cultivation. Indisputably, no such final orders under Rule 7 of the KLU Order directing recommencement of paddy cultivation have been issued by the competent respondent authority in this case, in the manner known to law. So it cannot be contended even for a moment that as of now, the mere allegations in Exts.P3, P-14, etc. has fastened a legal burden or liability on the title of the property owners, which creates the diminishing of the value of land, in the manner known to law for justifying the impugned entry** W.P(C)No.28258 of 2018 27 **of the encumbrance in Ext.P-14. Going by the admitted facts and circumstances of the case, this Court is of the considered view that the allegations raised in Ext.P-3 stop memo dated 10.11.2017 and the consequential proceedings of the 2[nd] respondent referred to in Ext.P-14, cannot be the legal basis for noting an encumbrance as in the impugned Ext.P-14 encumbrance certificate issued by the 5[th] respondent.** **19. Hence, it is ordered that the impugned entry in Ext.P-14 encumbrance certificate indicating encumbrance against the said property is illegal and** _**ultra vires**_ **and will accordingly stand set aside. Consequently, it is ordered that the 5[th] respondent-SRO will issue a fresh encumbrance certificate in respect of the abovesaid property, without noting the abovesaid impugned encumbrance. The 5[th] respondent-Sub** W.P(C)No.28258 of 2018 28 **Registrar will issue fresh encumbrance certificate as aforestated, within 1 week from the date of production of a certified copy of this judgment.** **20. All what remains for consideration is directions in the matter of issuance of Record of Rights (ROR) in respect of the abovesaid property by the 4[th] respondent Village Officer. Petitioners 1 and 2 have not produced copy of the application to show that they have submitted any formal application before the 4[th] respondent Village Officer for grant of Record of Rights (ROR). So it is for petitioners 1 and 2 to submit requisite application in that regard before the 4[th] respondent-Village Officer for the grant of ROR (Record of Rights)in respect of the property in question. The petitioners may also produce the attested copies of the title deeds and also the originals of the title deeds before** W.P(C)No.28258 of 2018 29 **the 4[th] respondent for perusal and verification. The originals of the title deeds will be returned back to the petitioners after such verification by the 4[th] respondent. Petitioners 1 and 2 will also produce an attested copy of the fresh encumbrance certificate to be issued by the 5[th] respondent Sub Registrar, as aforestated. Thereupon, the 4[th] respondent will ensure that the record of rights (ROR) in respect of the abovesaid property in question is issued to petitioners 1 and 2, without showing the abovesaid impugned encumbrance as in Ext.P-14. The record of rights in that regard should be issued by the 4[th] respondent within 10 days from the date of submission of the application by petitioners 1 and 2 in that regard along with requisite materials as aforestated.** **21. This Court has issued abovesaid directions in this judgment is only for** W.P(C)No.28258 of 2018 30 **determination of the limited issue as to the legality and correctness of the impugned encumbrance entry in Ext.P-14 certificate as well as the matters in relation to the issuance of the ROR of the abovesaid property.** **With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.** **Sd/-** **vgd/sdk+** **ALEXANDER THOMAS, JUDGE** W.P(C)No.28258 of 2018 31 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE NOTICE ISSUED BY THE CORPORATION OF KOCHI DATED 29.1.2013 TO THE PETITIONERS EXHIBIT P2 TRUE PHOTOCOPY OF THE RELEVANT PORTION OF THE DATA BANK REFERABLE TO THE PROPERTY OF THE PETITIONERS DATED NIL** **EXHIBIT P3 TRUE PHOTOCOPY OF THE STOP MEMO ISSUED BY THE FOURTH RESPONDENT DATED 10.11.2017 EXHIBIT P4 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 22.11.2017 FILED BY THE PETITIONER BEFORE THE RESPONDENTS 1 AND 2 EXHIBIT P5 TRUE PHOTOCOPY OF THE APPLICATION FILED BY THE PETITIONERS BEFORE THE FIRST RESPONDENT DATED NIL EXHIBIT P6 TRUE PHOTOCOPY OF THE TAX RECEIPT DATED 5.10.2016 EXHIBIT P7 TRUE PHOTOCOPY OF THE JUDGMENT IN W.P(C) 38215/2017 DATED 20.12.2017 EXHIBIT P8 TRUE PHOTOCOPY OF THE ORDER ISSUED BY AGRICULTURAL OFFICER/ FIRST RESPONDENT DATED NIL EXHIBIT P9 TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT 8.6.2014 EXHIBIT P10 TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE AGRICULTURAL OFFICER TO THE DIRECTOR KSRSEC, THIRUVANANTHAPURAM DATED 19.6.18 EXHIBIT P11 TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT DATED 28.6.18 EXHIBIT P12 TRUE PHOTOCOPY OF THE LETTER ISSUED BY SABU ATHIMALAPARAMBU TO THE PETITIONERS DATED NIL** W.P(C)No.28258 of 2018 32 **EXHIBIT P13 TRUE PHOTOCOPY OF THE AGREEMENT EXECUTED BY THE PETITIONERS 1 & 2 WITH THE THIRD PETITIONER DATED 10.12.17 EXHIBIT P14 TRUE PHOTOCOPY OF THE ENCUMBRANCE CERTIFICATE SHOWING LIABILITY EXHIBIT P15 TRUE PHOTOCOPY OF THE COMMUNICATION ISSUED BY THE FIRST RESPONDENT DATED 6.8.2018**