Kerala High Court
Kurian vs The State Of Kerala on 18 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942
WP(C).No.5053 OF 2021(F)
PETITIONER:
KURIAN,
AGED 66 YEARS,
S/O KURIAN, MECHERIL HOUSE, UPPUTHARA VILLAGE,
IDUKKI DISTRICT.
BY ADV. SRI.BIJU .C. ABRAHAM
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE STATE SPECIAL OFFICER AND COLLECTOR,
GOVERNMENT LAND RESUMPTION,
THIRUVANANTHAPURAM-695 001.
3 THE DISTRICT COLLECTOR,
IDUKKI DISTRICT, COLLECTORATE, IDUKKI-685 603.
4 THE TAHSILDAR,
PERMADE TALUK, IDUKKI DISTRICT-685 538.
5 THE VILLAGE OFFICER,
UPPUTHARA VILLAGE, PEERMADE TALUK,
IDUKKI DISTRICT-685 505.
BY SRI.Y.JAFAR KHAN, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.5053 OF 2021(F) 2
JUDGMENT
The petitioner is a senior citizen. He states that he acquired title and
possession of property having an extent of 60.70 Ares in survey No.338/32-1-1
of Upputhara Village on the cover of Ext.P1 sale deed executed and registered
on 9.9.1982. He has effected mutation in his favor and has been paying tax as
is evident from Exhibit P2 tax receipt. However, in Exhibit P2, an endorsement
has been made that the same is being accepted provisionally. It is contended
that the property covered under Exhibit P1 was originally owned by a certain
Joseph Parapurath and it was after changing several hands that the same was
purchased by the petitioner. To evidence the said fact, the petitioner relies on
Exhibit P1(a) encumbrance certificate.
2. The petitioner contends that the provisions of the Land Tax Act,
1961, would not enable the Village officer to issue a tax receipt with an
endorsement that the same is being accepted provisionally. It is contended
that the petitioner approached the revenue authorities and sought for issuance
of Record of Rights certificate, Location sketch, Possession certificate and other
revenue certificates in respect of the property covered under Ext.P1 deed.
However, his request was turned down by the 5th respondent by Ext.P3 order
on the ground that the issuance of revenue certificates have been interdicted
by the 3rd respondent by Ext.P4 proceedings. The petitioner contends that
Ext.P4 proceedings of the District Collector was challenged by several persons
and this Court by Ext.P5 judgment dated 7.11.2018 had held that the
proceedings under the Land Conservancy Act, 1957, can be invoked only for
the purpose of resumption or removal of encroachment from Government
lands and not in respect of property owned by individuals and obtained by
deeds which have been legally executed and registered in accordance with
law. The revenue authorities were ordered to accept basic tax from the
petitioners therein on the strength of the title deeds relied on by them subject
to adjudication of title in proceedings, if any, initiated by the Government.
The petitioner also relies on Ext.P6 and P7 judgments rendered by this Court
relying on the principles laid by this Court in Ext.P5 judgment. It is in the
above backdrop that the petitioner has approached this Court seeking to
quash Ext.P3 order and for a further direction to the 5th respondent to issue
revenue certificates such as Possession Certificate, Location Sketch, Record of
Rights etc. in respect of the property covered under Ext.P1 and to remove the
endorsement in Ext.P2 tax receipt .
3. I have heard Sri.Biju C. Abraham, the learned counsel appearing
for the petitioner, and the learned Government Pleader.
4. I have considered the submissions made across the Bar.
5. Ext.P1 deed shows that the petitioner has acquired title over the
property covered under the deed. He has produced records showing that
transfer of registry has been effected in his favour and he has been paying tax.
However, in the tax receipt, an endorsement has been made to the effect that
the tax is being received provisionally. His grievance is that when he sought for
issuance of Possession Certificate, ROR Certificate and other revenue records
and also for removing the endorsement in the tax receipt, he was informed
that the revenue records cannot be issued to him in view of Ext.P4
proceedings No.GLR(LR)210/15/PER-TCO dated 12.08.2016 of the Special
Officer and Collector. I find that the above proceeding has already been set
aside by this Court by Ext.P5 judgment dated 07.11.2018 wherein this Court
has held that the proceedings issued by the District Collector cannot be
sustained. It was further held that the remedy of the respondent-State
Government is to institute appropriate civil suits before the competent civil
court in the matter of title and not by issuing the impugned proceedings under
the Land Conservancy Act. In that view of the matter, there is no justification
on the part of the respondents in refusing to issue the certificates sought for
by the petitioner on that count.
6. The respondents have raised a contention that the property
owned by the petitioner is part of larger extents of properties, which had
earlier secured exemption under Sec.81(1) (e) of the Kerala Land Reforms Act,
1964, on the ground that it is plantation land. It is contended that the
fragmented plots of land are being used for non exempted purposes and
therefore illegal. A Division Bench of this Court in the common judgment dated
04.04.2017 in W.A.Nos.564 & 612 of 2017 has held that the question as to
whether the petitioners-landowners would be actually using the lands in
question for non-exempted purposes and thus violating the exemption clause
would arise only when they actually use the land for quarrying purposes and
not at the stage when they seek a Possession Certificate for any such
prospective use and that those objections and contentions are not relevant and
germane for refusal of issuance of such revenue certificates and that the
respondent-State authorities are fully at liberty to raise all such contentions
and such objections at the appropriate time, when a cause of action in that
regard actually arises. In view of the said judgment, the respondents are
obliged in law to consider the request of the petitioner without being burdened
down by the provisions of the Land Reforms Act. Furthermore, this Court in
Devassia v. Sub Registrar [2015(1) KLT 825] has held that the provisions of
the KLR Act do not place any embargo on transfer and the transfer of registry
is for fiscal purposes on transfer and that said Act also do not curtail
fragmentation of exempted lands from the purview of ceiling, but that
exempted category of land, to have continuity of the qualification of
exemption, the alienee or the transferee shall use the land for any of the
purposes, for which exemption would be granted and if the land is used for a
non-exempted purpose, either before or after the purchase, then certainly the
respondent-State authorities may have the competence to take appropriate
action as is warranted on law and facts, in that regard. In that view of the
matter, the contention forcefully advanced by the learned Government Pleader
cannot be sustained.
7. However, in view of the concern expressed by the State, it is
made clear that it would be open to the competent among respondents to
proceed against the petitioner under the Land Reforms Act, if a case is made
out and in that event, the same shall be strictly as per procedure and in
accordance with law with due notice to the petitioner.
Resultantly, this writ petition is disposed of directing the concerned
respondent to forthwith take up the request made by the petitioner for issuance
of revenue certificates like Possession Certificate, location sketch, ROR
certificate, etc. in respect of the properties covered under Ext.P1 and shall issue
the same to the petitioner. It is also made clear that the tax receipt, if any,
issued to the petitioner, shall not carry out any adverse endorsement. Before
parting, it is made clear that the directions issued as aforesaid will be subject to
the adjudication of the title in a Civil Suit, if any, instituted by the State.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
NS
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SALE DEED NO 1138/1982
DATED 9.9.1982 OF PEERMADE SRO.
EXHIBIT P1 (a) TRUE COPY OF ENCUMBRANCE CERTIFICATE DATED
6.1.2021.
EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT DATED
7.5.2020
EXHIBIT P3 TRUE COPY OF THE LETTER DATED 24.9.2020
ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS NO GLR(LR)
210/15/PER-TCO DATED 12.8.2016 OF THE
SPECIAL OFFICER & COLLECTOR.
EXHIBIT P4 (a) TRUE COPY OF THE GO NO 172/2019 ISSUED BY
THE 1ST RESPONDENT ON 6.6.2019.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 7.11.2018
PASSED BY THIS HON'BLE COURT IN WPC NO
40002/2016 AND CONNECTED CASES.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 18.2.2019
PASSED BY THIS HON'BLE COURT IN WPC NO
4647/2019.
EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 13.7.2020 IN
WPC NO 13736/2020 (N).
RESPONDENT'S/S EXHIBITS:
NIL
//TRUE COPY// P.A.TO JUDGE
