Ilm Land Developers And Builders vs District Collector
2021 Latest Caselaw 15274 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
          THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
                        WP(C) NO. 8663 OF 2020
PETITIONERS:
    1     ILM LAND DEVELOPERS AND BUILDERS
          HOSPITAL ROAD, CHALAKUDY, THRISSUR DISTRICT
          REPRESENTED BY ITS MANAGING PARTNER, ITOOP,
          AGED 60 YEARS, S/O. OUSPEH, KONNUPARAMBAN HOUSE,
          EAST CHALAKUDY, THRISSUR DISTRICT.

    2          MITHUR AGRO OILS PVT. LTD.
               REPRESENTED BY ITS MANAGING PARTNER, ITOOP,
               AGED 60 YEARS, S/O. OUSEPH, KONNUPARAMBAN HOUSE,
               EAST CHALAKUDY, THRISSUR DISTRICT.

               BY ADV V.M.KRISHNAKUMAR
               SR.ADV.SRI.RANJITH THAMPAN


RESPONDENTS:

    1          DISTRICT COLLECTOR
               COLLECTORATE, THRISSUR, PIN-680 003.

    2          TALUK LAND BOARD CHALAKUDY
               REPRESENTED BY ITS CHAIRMAN,
               OFFICE OF THE TALUK LAND BOARD, COLLECTORATE,
               THRISSUR, PIN-680 003.

    3          TAHSILDAR
               TALUK OFFICE, CHALAKUDY, THRISSUR DISTRICT,
               PIN-680 307.

    4          VILLAGE OFFICER
               VELLIKULANGARA VILAGE, VELLIKULANGARA, THRISSUR,
               PIN-680 699.

            SMT.SHEEJA.C.S., GP


        THIS     WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION       ON   22.07.2021,     THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 8663 OF 2020
                                            -2-



                    P.V.KUNHIKRISHNAN,J.
             ===============================
                           W.P.(C) No.8663 of 2021
             ===============================
       Dated this the 22nd day of July, 2021


                                    JUDGMENT

Above writ petition is filed with following

prayers:-

i. Declare that property covered by Ext.P1 to P4 are not covered by any ceiling proceedings under Land Reforms Act at the instance of 2nd respondent since the 2nd respondent has not even intimated any ceiling proceedings against petitioner's properties.

ii. Issue a writ in the nature of mandamus commanding the respondents 2 and 3 to accept basic tax as regards properties of respective petitioners and issue possession certificate without any endorsement to the effect that there is a ceiling proceedings against properties covered by Ext.P1 and P4.

iii. Declare that respective petitioners are holding land within the ceiling limit prescribed under Sec.83 of Kerala Land WP(C) NO. 8663 OF 2020

Reforms Act;

iv. Issue such other orders, writs or directions as are deemed fit by this Hon'ble court v. award cost of this proceedings to the petitioners

2. According to the petitioners, they are

the absolute owners of 11.83 acres of land as per

Exts. P1 and P4 title deeds. The petitioners

produced tax receipt also to show that, they paid

basic tax. Ext.P5 is the tax receipt. Petitioners

want to avail a loan, for which they approached

the Village Officer for getting a possession

certificate. Ext.P12 is the possession

certificate issued by the Village Officer in

which it is stated like this:-

"The above said property is under scrutiny surplus land and its processing is going on as per file No.H2-13029/12, Thahsildar, Chalakudy."

3. The grievance of the petitioners is that

because of this endorsement, the petitioners are WP(C) NO. 8663 OF 2020

not in a position to get loan from banks.

4. Heard the learned counsel for the

petitioners and the learned Government Pleader.

5. The learned counsel for the petitioners

relied on an unreported judgment of this Court

dated 05.12.2016 in W.P.(C) No.7365/2016 and

judgment dated 04.04.2017 in W.A.No.564/2017. The

leaned senior counsel Adv.Renjith Thamban

submitted that the authorities are not justified

in issuing possession certificate with an

endorsement that some other proceedings are going

on. The Government is free to proceed against the

land in accordance with law, if there is any

violation of law. But the endorsement in

possession certificate will affect the right of

the petitioners.

6. The learned Government Pleader submitted

that, the proceedings are pending before the WP(C) NO. 8663 OF 2020

Taluk Land Board, Kothamangalam, and that is why

the endorsement is made in Ext.P12.

7. After hearing both sides, according to

me, the endorsement made by the Village Officer

in Ext.P12 possession certificate is not

justified. In the judgment dated 05.12.2016 in

W.P.(C) No.7365/2015, this Court observed like

this:-

"13. Apparently, Ext.P9 order issued by the 2nd respondent dated 17.06.2016 in W.P.(C) No.28877 of 2016 and Ext.P4 order passed by the 6 th respondent in W.P.(C) No.7365 of 2016 are without taking note of the order of the Principal Secretary to Government, Revenue Department, dated 03.02.2016, withdrawing the stipulations in paragraph 11 of the communication issued by the Secretary, Land Board dated 25.02.2015. In that view of the matter, I set aside Exts.P9 and P4 respectively in the said writ petitions. Moreover, petitioners have only sought for issuance of a possession certificate. The Village Officer will have to make necessary enquiry, and if it WP(C) NO. 8663 OF 2020

is found that petitioners are in actual possession of the property, in accordance with law, the Village Officer is duty bound to issue a certificate to the petitioners without making any adverse endorsements".

8. The above judgment was challenged before

the Division Bench and the Division Bench of this

Court in the judgment dated 04.04.2017 in

W.A.No.567/2017 observed like this:-

"5. Having heard learned counsel for the parties, we are of the view that the direction as given by the learned Single Judge requires no interference inasmuch as the possession certificate would disclose only the owner and the possession of the property. Whether the property is an exempted property or its user is restricted which cannot be changed would be a matter that would separately come up for consideration as the occasion may arise by its user, by the purchaser or by any other person. That would be an independent issue to be decided as and when it arises. Those proceedings would have to be initiated if at all in accordance with the provisions of the Kerala Land Reforms Act or any WP(C) NO. 8663 OF 2020

other law applicable to the situation. But the occasion would only arise later, when any other user in violation of exemption is alleged. The person will have his own defence to those. Those proceedings cannot be preempted by any adverse entry in the possession certificate. In other words, an unqualified certificate would not fetter the right of the Government in taking any action, if they are of the view that any law is being violated. That right is always reserved to the Government."

9. In the light of the above observation, I

think the second prayer in the writ petition can

be allowed. The learned senior counsel submitted

that he is not pressing the first prayer in the

writ petition at this stage.

Therefore, this writ petition is disposed in

the following manner:-

1) Respondent Nos. 3 and 4 are directed to

accept basic tax to the property covered by

Exts.P1 and P4 and issue a possession certificate

without any endorsement to the effect that there WP(C) NO. 8663 OF 2020

is ceiling proceedings against the properties

covered by Exts.P1 and P4.

2) The above exercise and issuance of

possession certificate should be completed as

expeditiously as possible, at any rate, within

one month from the date of receipt of a copy of

this judgment.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

hmh WP(C) NO. 8663 OF 2020

APPENDIX OF WP(C) 8663/2020

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.3066/1/2012 DATED 24.9.2012.

EXHIBIT P2 TRUE COPY OF THE BASIC TAX RECEIPT DATED 2.6.2016 ISSUED BY THE VILLAGE OFFICER, VELLIKULANGARA TO THE IST PETITIONER.

EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 1.12.2016 ISSUED BY THE VILLAGE OFFICER, VELLIKULANGARA TO THE IST PETITIONER.

EXHIBIT P4 TRUE COPY OF THE SALE DEED NO.3067/1/2012 DATED 24.9.2012.

EXHIBIT P5 TRUE COPY OF THE BASIC TAX RECEIPT DATED 2.6.2016 ISSUED IN FAVOUR OF 2ND PETITIONER.

EXHIBIT P6 TRUE COPY OF POSSESSION CERTIFICATE DATED 1.12.2016 ISSUED IN FAVOUR OF 2ND PETITIONER.

EXHIBIT P7 TRUE COPY OF THE RE-PLANTATION SUBSIDY ISSUED BY THE RUBBER BOARD OF 1.50 ACRES OF LAND IN SY.NO.1904 AND 1905 OF MATTATHUR VILLAGE DATED 21.1.1972 WHICH IS NOW IN VELLIKULANGARA VILLAGE.

WP(C) NO. 8663 OF 2020

EXHIBIT P8 TRUE COPY OF THE RUBBER DEVELOPMENT PERMIT ISSUED BY THE RUBBER BOARD AS REGARDS .06 HECTARES OF LAND IN SY.NO.1902 AND 1903 OF THE THEN MATTATHUR VILLAGE DATED 2.1.1982.

EXHIBIT P9 TRUE COPY OF THE RUBBER BOARD PERMIT TO 1.85 HECTARES OF AND IN SY.NO.1905, 1904, 1907, 1908 DATED 7.11.1996.

EXHIBIT P10 TRUE COPY OF THE RUBBER BOARD PERMIT DATED 7.11.1996 FOR 1.78 HECTARES OF LAND IN SY.NO.1902, 1903, 1905 AND 1907.

EXHIBIT P11 TRUE COPY OF PATTA ISSUED BY LAND TRIBUNAL DATED 25.3.1974.

EXHIBIT P12 TRUE COPY OF THE POSSESSION CERTIFICATE WITH THE ENDORSEMENT ISSUED BY THE VILLAGE OFFICER AS REGARDS 2ND PETITIONER'S PROPERTY.

EXHIBIT P13 TRUE COPY OF THE LETTER DATED 5.2.2019 ALONG WITH LETTER OF THE VILLAGE OFFIER TO THE TAHSILDAR.

RESPONDENT EXHIBITS            NIL