W.P.(C).No.36057 of 2023

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 6[TH] DAY OF JUNE 2024 / 16TH JYAISHTA, 1946** ## **WP(C) NO. 36057 OF 2023** ## **PETITIONERS:** **1 ABDUL NAZAR AGED 55 YEARS S/O MOIDEEN KUTTY, ERANHONA HOUSE, ADIVARAM P.O, PUTHUPPADY, KOZHIKODE DISTRICT,, PIN - 686582 2 SIDHIQUE U AGED 44 YEARS S/O K.M. YUSAF, THAIBA MANZIL, VYTHIRI P.O, KUNNATHIDAVAKA, WAYANADU DISTRICT, PIN - 673576 BY ADVS. T.N.SURESH DHANUJA VETTATHU YEDU KRISHNA S. P.SREEJITH** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, 2ND FLOOR NORTH BLOCK, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 DISTRICT COLLECTOR WAYANAD, CIVIL STATION, KAIRALI NAGAR, KALPETTA, PIN - 673122 3 SUB REGISTRAR SUB REGISTRAR OFFICE, KALPETTA, VYTHIRI, KUNNATHIDAVAKA, PIN - 673576** ## **OTHER PRESENT:** ## **SR.GP-DEEPA NARAYANAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).No.36057 of 2023 2** ## **VIJU ABRAHAM,J** **-----------------------** **W.P.(C).No.36057 of 2023 --------------------------------Dated this the 6[th] day of June, 2024** ## **JUDGMENT** The above writ petition is filed challenging Ext.P6 and for a direction to the 3[rd] respondent to execute the sale deed that may be submitted by the petitioner to transfer their property covered by Ext.P2. 2. The brief facts necessary for the disposal of the writ petition is as follows: M/S.Poddar Plantations Ltd., was the owner and in exclusive possession of a wide extent of 1501.500 Acres of land obtained as per sale deed No.50/1973 of SRO Kozhikode. Subsequently, as per Sale Deed No.422/2007 of SRO Vythiri one Mr.Densil Lopus purchased 5.66 Ares, ie., 14 cents of land comprised in old survey Nos.12,13,14 and Resurvey No.64/2 of Chundel Village in Vytghiri Taluk from M/S.Poddar Plantations Ltd. Thereafter, Densil Lopus effected mutation and tax was being remitted by him. Subsequently, petitioners jointly purchased ## **W.P.(C).No.36057 of 2023 3** the property covered by Ext.P1 as per Ext.P2 sale deed No.623/2008 of Vythiri SRO. Thereafter, mutation was effected in their name and tax was being paid, as is evident from Ext.P3 tax receipt. Later on, petitioners constructed a residential building on the western portion of the property for which the Panchayath allotted building number also. Thereafter, petitioners entered into Ext.P4 sale agreement dated 7.3.2017 with one Noorsha.A.M to sell a portion of the property covered by Ext.P2 including the residential building. Thereafter, Ext.P6 sale agreement was executed with the same person, Noorsha A.M for sale of the remaining property covered by Ext.P2. Petitioners approached the 3[rd] respondent to register the sale deed on the basis of Exts.P4 and P5 in favour of the purchaser Mr.Noorsha. The 3[rd] respondent informed that the sale deed in respect of the subject property cannot be registered as the transfer of the property covered by Ext.P2 has been prohibited by the 2[nd] respondent as per Ext.P6 order issued under Section 120A of the Kerala Land Reforms Act. Petitioners ## **W.P.(C).No.36057 of 2023 4** contend that no prohibition could be imposed as per Section 120A of the Kerala Land Reforms Act, even though the land is an exempted land under Chapter II of the Kerala Land Reforms Act, since the exempted land continued to be an exempted land even if it transferred, burdened with qualification of exemption and the only remedy is to initiate ceiling proceedings contemplated under Section 84 of the Kerala Land Reforms Act. 3. Petitioners rely on the judgment in **Safoora K.P v. State of Kerala and Others (2018 KHC 490)** and contend that issuance of Ext.P6 fully prohibiting the transfer of the property covered by Ext.P2 is absolutely arbitrary and there is no embargo in transferring the whole or part of the exempted land. Petitioners also rely on the judgment in **Selvam M and Others v. State of Kerala and Others (2010(1) KHC 581)** in support of their contentions. This Court in **Kinallur Rock Sand v. State of Kerala and Others (2021 (2) KLT 351)** has held that there is no prohibition in using an exempted land under Kerala Land Reforms Act for **W.P.(C).No.36057 of 2023 5** different purpose and if the land is utilized for any other purpose, it may fall within once ceiling area and authorities may be able to initiate ceiling proceedings but cannot decline the land for any other purpose. Petitioners further rely on **Devasia R.V and Another v. Sub Registrar Idukki and** **others (2015 (1) KHC 805)** and contended that though land is exempted from ceiling limit under the Act, there is no bar in change of ownership or embargo on transfer, even with respect to a portion of such land and the Revenue Officials cannot refuse to effect mutation of such property purchased by transferee, however, power of competent authority to reopen ceiling proceedings to include land exempted for the purpose of ceiling is not lost on account of effecting mutation. This Court in **Elias** ## **T.V and Others v. Sub Collector, Wayanad and Others** **(2019 (2) KHC 881)** has held that when an exempted land under Section 81 of the Kerala Land Reforms Act is used for the purpose other than for which it is exempted, the Government would not be justified in rejecting the request for revenue documents ## **W.P.(C).No.36057 of 2023 6** which is required for using the land for other purposes till the land is vested with the Government, after re-determination of ceiling. This Court in **Everest Stone Crusher and Granites (M/s) v. District Collector, Kannur and Others** **(2020 (6) KHC 289** ) while considering an order under Section 120A of the Kerala Land Reforms Act, has elaborated the condition for passing prohibitory orders and held that before issuing prohibitory orders under Section 120A, the District Collector or any other officer authorised by Government has to satisfy that any particular land is being transferred in order to defeat the provisions of the Act, that satisfaction has to be recorded having regard to the subject of each transfer. A perusal of Ext.P6 which has issued purportedly under Section 120A of the KLR Act, does not reveal that there is independent consideration of each land and a finding to the effect the transfer of any particular land is in order to defeat the provisions of the Act. 4. A counter affidavit has been filed by the 2[nd] ## **W.P.(C).No.36057 of 2023 7** respondent wherein it is admitted that the land possessed by the petitioners is an exempted land under Section 81(e) of the Kerala Land Reforms Act, 1963, and the land owner has no right to convert the exempted land under Section 81(e) of the Kerala Land Reforms Act, 1963 without prior permission. It is further stated that the Taluk Land Board has taken steps to reopen the ceiling case against the holders of property and that case is currently ongoing and the land purchased by the petitioners are also involved in the said case and in the said circumstances, Ext.P6 prohibitory order was issued. 5. Heard the learned counsel on both sides. 6. Going by the dictum laid down by this Court as stated above, before issuing proceedings under Section 120A of the Kerala Land Reforms Act, the District Collector or any other officer authorised by Government has to satisfy that any particular land is being transferred in order to defeat the provisions of the Act. Ext.P6 is nature of a general order, a perusal of Ext.P6 order does not revealed that the Government or officers authorised ## **W.P.(C).No.36057 of 2023 8** by the Government had subjective satisfaction of the fact that the transfer of a particular land is for the purpose of defeating the provisions of the Kerala Land Reforms Act. Admittedly, the land in question is an exempted land. Going by the judgment relied on by the petitioners it is settled that there is no prohibition in trnsferring an exempted land and further that there is no such prohibition in using an exempted land for a different purpose, and only prohibition is that in case of conversion of the said land, the competent authority is entitled to re-open the ceiling proceedings include land exempted for the purpose of ceiling. 7. In view of the above, I am of the opinion that the following directions could be issued: There will be a direction to the 3[rd] respondent to execute sale deed, if any, submitted by the petitioners to transfer that property covered by Ext.P2 untrammeled by the issuance of Ext.P6 order. The said order will not stand in the way to the authorities to initiate proceedings as per the provisions of the Kerala Land Reforms Act, in case, ## **W.P.(C).No.36057 of 2023 9** the authorities found that there is any violation of the provisions of the Act. The writ petition is disposed of as above. sd/- **VIJU ABRAHAM, JUDGE** pm **W.P.(C).No.36057 of 2023 10** ## **APPENDIX OF WP(C) 36057/2023** ## **PETITIONERS' EXHIBITS** **Exhibit P1 THE TRUE COPY OF THE SALE DEED NO: 422/2007 OF VYTHIRI SRO** **Exhibit P2 THE TRUE COPY OF THE SALE DEED NO: 623/2008 OF VYTHIRI SRO** **Exhibit P3 THE TRUE COPY OF THE TAX RECEIPT DATED 19/05/2023 ISSUED BY CHUNDEL VILLAGE OFFICE** **Exhibit P4 THE TRUE COPY OF THE SALE AGREEMENT DATED 07/03/2017 EXECUTED BETWEEN THE PETITIONERS AND MR. NOORSHA** **Exhibit P5 THE TRUE COPY OF THE SALE AGREEMENT DATED 02/06/2020 EXECUTED BETWEEN THE PETITIONERS AND MR. NOORSHA Exhibit 6 THE TRUE COPY OF THE ORDER ALONG WITH TABLE OF PROPERTIES DATED 10/11/2016 ISSUED BY 2ND RESPONDENT**