WP(C) Nos.20526 of 2023 & 37083 of 2023

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945 ``` ``` WP(C) NO. 20526 OF 2023 ``` ## **`PETITIONER:`** ``` M. K. SOMASEKHARA PANICKER, AGED 76 YEARS S/O. KRISHNA KURUP, VILLA NO. 8, SOUPARNIKA GARDENS, MARKET ROAD, NEAR DAKSHINA UDAPI TEMPLE, TRIPUNITHURA, ERNAKULAM., PIN - 682301 ``` ``` BY ADVS.LEO LUKOSE ENOCH DAVID SIMON JOEL S.SREEDEV, RONY JOSE KAROL MATHEWS SEBASTIAN ALENCHERRY DERICK MATHAI SAJI ``` ## **`RESPONDENTS:`** |**`1`**|**`STATE OF KERALA`**| |---|---| ||**`REPRESENTED BY SECRETARY TO GOVERNMENT`**| ||**`REVENUE DEPARTMENT, GOVT. SECRETARIAT,`**| ||**`THIRUVANANTHAPURAM, PIN - 695001`**| |**`2`**|**`DISTRICT COLLECTOR, CIVIL STATION,`**| ||**`KAKKANADU, ERNAKULAM, PIN - 682021`**| |**`3`**|**`SUB-COLLECTOR (REVENUE DIVISIONAL OFFICER)`**| ||**`REVENUE DIVISIONAL OFFICE, FORT KOCHI,`**| ||**`ERNAKULAM DISTRICT, PIN - 682001`**| |**`4`**|**`TAHSILDAR, KANAYANNUR TALUK OFFICE`**| ||**`ERNAKULAM, PIN - 682011`**| |**`5`**|**`VILLAGE OFFICER`**| ||**`NADAMA THEKKUMBHAGAM VILLAGE OFFICE,`**| ||**`MARADU, ERNAKULAM., PIN - 682040`**| |**`6`**|**`LOCAL LEVEL MONITORING COMMITTEE`**| ||**`REPRESENTED BY ITS CONVENOR,`**| ||**`AGRICULTURAL OFFICER,`**| ||**`NADAMA THEKKUMBHAGAM VILLAGE,`**| ||**`KANAYANNUR TALUK, ERNAKULAM, PIN - 682040`**| WP(C) Nos.20526 of 2023 & 37083 of 2023 2 ## **`OTHER PRESENT:`** ``` GP - SYAMANTHAK B.S. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.12.2023, ALONG WITH WP(C).37083/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) Nos.20526 of 2023 & 37083 of 2023 3 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945 ``` ``` WP(C) NO. 37083 OF 2023 ``` ## **`PETITIONERS:`** ``` 1MONCY DANIEL,AGED 57 YEARS S/O MR. DANIEL C., FLAT NO.11C, GRAND MEDOW, KUNDANNOOR, MARADU PO, ERNAKULAM, PIN - 682304 2GODSEE MONCY, AGED 48 YEARS W/O MONCY DANIEL, FLAT NO.11C, GRAND MEDOW, KUNDANNOOR, MARADU PO, ERNAKULAM, PIN - 682304 ``` ``` BY ADVS. SAJI VARGHESE KAKKATTUMATTATHIL AMALENDU A. ``` ## **`RESPONDENTS:`** - **`1 THE REVENUE DIVISIONAL OFFICER FORT KOCHI, PIN - 682001`** - **`2 THE TAHSILDAR (LR). TALUK OFFICE, KANAYANNUR, ERNAKULAM-, PIN - 682011`** ``` 3THE VILLAGE OFFICER VILLAGE OFFICE, MARADU, ERNAKULAM, PIN – 682304 ``` ## **`BY GP RIYAL DEVASSY`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.12.2023, ALONG WITH WP(C).20526/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) Nos.20526 of 2023 & 37083 of 2023 4 ## **C.R.** **VIJU ABRAHAM, J. ................................................................. W.P (C) No. 20526 of 2023 and WP (C) No. 37083 of 2023 .................................................................** Dated this the 12[th] day of December, 2023 ## **JUDGMENT** ## **W.P (C) No. 20526 of 2023** The petitioner has approached this Court seeking a direction to the 3[rd] respondent to recall Ext.P3 order and pass fresh orders in his name without insisting on remitting any further conversion fee. Petitioner has sought for other consequential reliefs also. 2. Petitioner is the absolute owner and in possession of 2.02 Ares (4.99 cents) of property along with a residential building lying in resurvey no.104/2 of Nadama Thekkumbhagam Village in Ernakulam District obtained as per Ext.P1 sale deed executed on 08.07.2021. Petitioner purchased the above property from one Mr.Anoop R, who obtained the same extent of property as per sale deed No.2814 of 2012 of Tripunithura Sub Registrar Office. There is no fragmentation of property while executing Ext.P1 sale deed. Even though the entire neighbourhood is developed and nature of the land was lying as purayidam and the predecessor-in-interest of the vendor of the petitioner had WP(C) Nos.20526 of 2023 & 37083 of 2023 5 obtained building permit and had constructed a building in the abovementioned property in the year 2005, in the revenue records, the nature of the property has been shown as nilam instead of purayidam as is evident from Ext.P2 tax receipt. Petitioner contended that the property has remained as fallow for more than 20 years and there is a residential building in the said property which has been constructed based on a valid licence and permit issued by the Panchayat. While so, when Mr. Anoop R. from whom the petitioner purchased the above-mentioned property approached the Panchayat for the purpose of sale of the same, it was informed that the property was shown as nilam instead of purayidam in the revenue records and thereupon Mr.Anoop R. submitted an application in accordance with Section 27A of the Kerala Conservation of Paddy Land and Wet land Act 2008 (hereinafter referred to as Act of 2008) in Form 6 after paying requisite conversion fee. Petitioner was informed by the said Anoop at the time of execution of Ext.P1 sale deed that Form 6 application has already been submitted with respect to the above-mentioned property and it was also informed that he will intimate the concerned officials about the sale of the property. Since no communication was received from the respondents after the submission of the Form 6 application even after the purchase, the petitioner approached the 3[rd] respondent and enquired about the status of the same wherein he was informed that Ext.P3 order dated 24.03.2022 had already been issued by the 3[rd] respondent allowing the conversion of the WP(C) Nos.20526 of 2023 & 37083 of 2023 6 nature of petitioner’s property, but the same has been issued in the name of Mr. Anoop R. The contention of the petitioner is that the purchase was on 08.07.2021 and it is only thereafter that the order dated 24.03.2022 was issued allowing conversion of nature the petitioner’s property, Ext P3 order ought to have been issued in his name. Thereupon, he requested the 3[rd] respondent to recall Ext.P3 and pass fresh orders in his name. In turn, he was informed that since the petitioner purchased the property after 2017, he has to remit 10% of the fair value of the property for passing fresh orders and for further processing of the application for correction in the records of the 5[th] respondent. Subsequent to the request made by the petitioner to recall Ext.P3 and to pass fresh orders in his name, the 4[th] respondent submitted Ext.P4 letter before the 3[rd] respondent intimating that further action may be taken for issuing Ext.P3 order in the name of the petitioner. The 5[th] respondent also submitted a detailed report before the 3[rd] respondent as per Ext.P5 that the property mentioned in Ext.P3 belongs to the petitioner and further action may be taken to recall Ext.P3 order and pass fresh orders in the name of the petitioner. Petitioner submits that Exts.P4 and P5 have not been considered by the 3[rd] respondent. Thereafter petitioner again represented before the 3[rd] respondent as per Ext.P6 to expedite the request made by him to recall Ext.P3 and pass fresh orders in his name. Petitioner would further contend that demand for conversion fee is not sustainable in view of the amendment made to the schedule constituted as per Rule 12(9) WP(C) Nos.20526 of 2023 & 37083 of 2023 7 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 as there is no requirement for the payment of fees or charges for conversion upto and inclusive of 25 cents of paddy land, on and with effect from 25.02.2021. Petitioner submits that his property is less than 5 cents which falls within the limit prescribed under the amended schedule of the Rules and further that there is no fragmentation of property while executing Ext.P1 sale deed. 3. The learned Government Pleader brought to my notice a communication issued by the Government dated 08.06.2023 bearing no.REV-P1/91/2023-REV in connection with the issue regarding the transfer of the property while an application for removing the property from the data bank or for changing the nature of the land was pending consideration. In the said communication, the Government decided that the application could be considered on the basis of a no-objection certificate submitted by the person who has filed the application in this regard and based on the said noobjection certificate the purchaser of the property could submit a further application and the said application would be decided maintaining the seniority. 4. I have heard the learned counsel for the petitioner as well as the learned Government Pleader. 5. In the present case the issue is slightly different from the issue covered by the communication dated 08.06.2023 referred to by the learned Government Pleader inasmuch as after the purchase of the property Ext.P3 WP(C) Nos.20526 of 2023 & 37083 of 2023 8 order has already been issued allowing the application in Form 6 in the name of Mr.Anoop R. from whom the petitioner purchased the said property. Even the said circular was issued by the Government on being aware that there could be a transfer of property after submission of an application and the permission granted as per the said circular permitting the subsequent purchaser to proceed with the application on the strength of an NOC from the original applicant itself would show that the orders to be passed on the application is on the land and it is immaterial whether it is filed by the erstwhile owner or the subsequent purchaser. Therefore, the question to be considered is as to whether in the facts and circumstances of this case, Ext.P3 is to be recalled and a fresh order should be issued in the name of the petitioner. 6. Admittedly, the application in Form 6 was submitted by Mr.Anoop R., from whom the petitioner purchased the property as per Ext.P1 sale deed. It is an admitted fact that it is after the said purchase that the application in Form 6 has been allowed as per Ext.P3 in the name of Mr.Anoop R. Whatever that be, the application in Form 6 was submitted by the erstwhile owner of the property requesting for change of nature of land has been allowed and the natural consequence of which is that change of nature of land has been permitted in respect of the property in question which is now in the ownership of the petitioner as per Ext.P1 deed. Section 27A of the Act of 2008 provides that if any owner of an unnotified land desires to utilise such WP(C) Nos.20526 of 2023 & 37083 of 2023 9 land for residential or commercial or for other purposes, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed. Even though the application was filed by the then owner, the permission for change of nature of land was granted in respect of the property, which was subsequently purchased by the petitioner. Section 5 of the Transfer of Property Act, 1882 defines transfer of property and Section 6 deals with what could be transferred. Section 6 of the Transfer of Property Act, 1882 mandates that property of any kind may be transferred except as otherwise provided by this Act or by any other law for the time being in force. The right to file an application under Section 27A of the Act of 2008 is a statutory right that could be invoked by the owner of the property, which has admittedly been done in the present case. The said application was allowed taking into consideration the nature of the land and the order issued under Section 27A is an order in respect of the land. The only mandate of the Section is that the application could be made only by the owner of the property but the order passed on the said application is one affecting the land in question where a change of nature of land is sought. Therefore, the said right accrued on the land will not vanish due to a transfer of the said land to a third party while the application was pending consideration. The petitioner who is the subsequent purchaser of the property will be entitled to any right/benefit accrued on the property by way of Ext P3 order irrespective of whether the application was made by the erstwhile owner or the petitioner. WP(C) Nos.20526 of 2023 & 37083 of 2023 10 The Apex Court in **Union of India and Others v. Iqbal Singh, (1976) 1 SCC 570** had occasion to consider the effect of a statutory right in the light of Section 6 of the Transfer of Property Act, though while dealing with a claim for compensation, has held in paragraph 9 as follows: _“9. It is true that the Act is intended for payment of compensation for rehabilitation of displaced persons and matters connected therewith. There is, however, nothing in the Act to prevent a claimant from making a gift or a will in respect of the amount he may be entitled to get. No provision of the Act takes away rights of transfer of or inheritance to verified claims. Nothing like an abatement or extinction of a claim by the death of the claimant is provided for by the Act. Inheritance to and devolution of rights of claimants are clearly beyond the purview or scheme of the Act. They are untouched by the provisions of the Act and are governed by other provisions of law. The statutory rights of claimants to compensation, which crystallize on assessment and verification of claims, are separate rights to property of each claimant covered by the wide definition of “property” in Section 6 of the Transfer of Property Act. They cannot evaporate or vanish suddenly with the death of a claimant. Rules framed under Section 40 of the Act have to be and are those reasonably necessary for carrying out the purposes of the Act. They cannot go beyond the objects for which they can be framed. Those objects are confined to determination and payment of compensation for what was left in Pakistan and do not extend to deprivation of anything acquired in India in capacities other than those relevant for purposes of compensation.”_ _(underline supplied)_ 7. Section 54 of the Transfer of Property Act dealing with the sale of immovable property is also relevant for consideration of the issue involved in this case. Section 54 defines sale as a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. “Ownership” as WP(C) Nos.20526 of 2023 & 37083 of 2023 11 ## defined in the _**Advanced Law Lexicon**_ by _**P.Ramanatha Aiyar, 4[th] Edition**_ ## is as follows: _“_ _**Ownership** . The collection of rights allowing one to use and enjoy property, including the right to convey it to others. Ownership implies the right to possess a thing, regardless of any actual or constructive control. Ownership rights are general, permanent and inheritable._ _........... ........... ........_ _Ownership consists of innumerable rights over property, for example, the rights of exclusive enjoyment, of destruction, alteration and alienation, and of maintaining and recovering possession of the property from all other persons. Such rights are conceived not as separately existing, but as merged in one general right of ownership. HALSBURY, 3[rd] Edn., Vol.29, p.371._ _........ ... ............. ............_ _The term “ownership” is not merely as word of technical legal meaning but it is to be interpreted in its broadest possible meaning. It consists of a bundle of rights in respect of a property. Inder Sen v. Naubat Singh, (1885) ILR 7 All 553, 556.”_ Going by the said definitions, ownership is a collection of rights allowing one to use and enjoy the property, with the right to convey it to others. In the said circumstance since the effect of the order passed in an application under Section 27A of the Act of 2008 is on the land in question, even if the transfer of land is made pending consideration of the said application, the right whatsoever accrued on the land on the application made by the erstwhile owner will definitely get transferred to the benefit of the subsequent purchaser. 8. In view of the above, I am of the opinion that the petitioner who is the WP(C) Nos.20526 of 2023 & 37083 of 2023 12 subsequent purchaser should be granted the benefit of Ext P3 order without obliging him to undergo the procedure prescribed under Section 27A by filing a fresh application. Therefore, there is no requirement for passing a fresh order in the name of the petitioner after recalling Ext.P3. Whatever benefits that have been accrued on the property by the issuance of Ext P3 order should be extended to the petitioner who purchased the property as per Ext.P1, while the application leading to Ext P3 order was pending consideration. Therefore, it is ordered that Ext P3 order shall be deemed to have been passed in the name of the petitioner who has purchased the property as per Ext P1 deed and there will be a consequential direction to the 4[th] respondent/Tahsildar (LR), Kanayannur Taluk to issue further orders as contemplated in Section 27C regarding subdivision, re-assessment of land tax under Section 6A of the Kerala Land Tax Act, 1961 and making necessary entries in the Revenue Records relating to the land covered by Ext P1 and P3 within an outer limit of 45 days from the date of receipt of a copy of the judgment, treating that Ext P3 order has been issued in the name of the petitioner. ## **W.P (C) No. 37083 of 2023** 9. The issue raised in this writ petition is almost identical to the issue in W.P (C) No. 20526 of 2023. In this case, the property was purchased by the petitioners as per Exts.P1 and P2 deeds. Though the property is a garden land, the same was wrongly included as nilam in the revenue records and the WP(C) Nos.20526 of 2023 & 37083 of 2023 13 vendors in Exts.P1 and P2 submitted application in Form 6 to change the nature of land as purayidam in BTR and the said application was filed prior to execution of Exts.P1 and P2 deeds. The said application was allowed as per Ext.P4. Subsequently, by Ext.P5 order, the 2[nd] respondent directed the 3[rd] respondent to issue new subdivision numbers to the land and accept land tax provisionally by changing the nature of the land as converted land after collecting an affidavit from the applicant. The 3[rd] respondent was not ready to accept the affidavit of the petitioners and change the nature of land as per Ext.P4 order taking a stand that the application in Form 6 was filed by the previous owner and orders were also issued in favour of the previous owner and the petitioners cannot raise any claim on the basis of Ext.P4 order. A similar issue was considered in detail by this judgment and I am of the opinion that the direction issued in W.P(C) No.20526 of 2023 should also govern the case of the petitioners herein. Therefore, Ext.P4 order shall be deemed to have been issued in the name of the petitioners with a consequential direction to the 3[rd] respondent to comply with Ext.P5 order and take further steps as contemplated under Section 27C of the Act 2008 in the name of the petitioners at the earliest at any rate within an outer limit of 45 days from the date of receipt of a copy of the judgment. 10. Before parting with this case, this court deems it appropriate to remind the authorities that an untenable technical stand should not be taken while dealing with a request of this nature and every endeavour should be made so WP(C) Nos.20526 of 2023 & 37083 of 2023 14 as to minimise the procedural hurdles so that the applicants could enjoy the rights accrued on them without any delay. The Apex Court in **The Trustees of Port of Bombay v. The Premier Automobiles Ltd and Another, (1974) 4 SCC 710** has reminded the public authorities that they should resist the temptation to take technical pleas or even legally permissible contentions including narrow limitation so as to defeat an honest claim. The Apex Court in paragraph 65 of the judgment held as follows: _"65. We are of the view, in reiteration of earlier expression on the same lines, that public bodies should resist the temptation to take technical pleas or defeat honest claims by legally permissible but marginally unjust contentions, including narrow limitation. In this and similar cases, where a public carrier dissuades private parties from suing by its promises of search for lost articles and finally pleads helplessness, it is doubtful morality to non - suit solely on grounds of limitation, a plaintiff who is taken in by seemingly responsible representation only to find himself fooled by his credibility. Public institutions convict themselves of untrustworthiness out of their own mouth by resorting to such defences."_ _(underline supplied)_ With the above-said direction, the writ petitions are allowed. Sd/- **VIJU ABRAHAM** **JUDGE** cks WP(C) Nos.20526 of 2023 & 37083 of 2023 15 ## **`APPENDIX OF WP(C) 20526/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1A TRUE COPY OF THE SALE DEED NO. 1173/1/2021 OF S.R.O. TRIPUNITHURA DATED 08.07.2021. Exhibit P2A TRUE COPY OF THE TAX RECEIPT DATED 04.07.2022 ISSUED BY THE 5TH RESPONDENT. Exhibit P3A TRUE COPY OF THE ORDER DATED 24.03.2022 ISSUED BY THE 3RD RESPONDENT AGAINST THE PETITIONER. Exhibit P4A TRUE COPY OF THE LETTER DATED 11.08.2022 NUMBERED H3-14253/2022 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT . Exhibit P5A TRUE COPY OF THE REPORT DATED 27.02.2023 NUMBERED 257/23 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE SUB- COLLECTOR, FORT COCHIN Exhibit P6A TRUE COPY OF THE REPRESENTATION DATED 20.05.2023 SUBMITTED BEFORE THE 3RD RESPONDENT. ``` WP(C) Nos.20526 of 2023 & 37083 of 2023 16 ## **`APPENDIX OF WP(C) 37083/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` ``` A TRUE COPY OF THE SALE DEED NO.1756/2021 OF SRO, MARADU DATED 17/09/2021 ``` ``` Exhibit P2. A TRUE COPY OF THE SALE DEED NO.1757/2021 OF SRO, MARADU DATED 17/09/2021 ``` ``` Exhibit P3A TRUE COPY OF THE SETTLEMENT DEED NO.2465/2014 OF SRO, MARADU DATED 25/08/2014 ``` ``` Exhibit P4A TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 22.08.2023 ``` ``` Exhibit P5A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 17.10.2023 ```