Kerala High Court
Subramanyan vs State Of Kerala on 24 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943
WP(C).No.27035 OF 2020(D)
PETITIONER:
SUBRAMANYAN
AGED 52 YEARS
S/O. POTTODATHY CHERIYAN,
KOODAPUZHA DESOM, CHALAKUDY, PIN-680307.
BY ADVS.
SRI.SHEEJO CHACKO
SMT.LAYA SIMON
RESPONDENTS:
1 STATE OF KERALA
REP. BY ITS SECRETARY TO GOVERNMENT,
LOCAL ADMINISTRATION DEPARTMENT,
TRIVANDRUM, PIN-695001.
2 PRINCIPAL SECRETARY TO GOVERNMENT OF KERALA
SCHEDULE CASTE & SCHEDULE TRIBE DEVELOPMENT
DEPARTMENT, SECRETARIAT, TRIVANDRUM, PIN-695001.
3 DISTRICT COLLECTOR,
THRISSUR, PIN-680003.
4 THE SUB REGISTRAR,
SUB REGISTRY OFFICE,
CHALAKUDY, PIN-680 307.
BY SPECIAL GOVERNMENT PLEADER SRI K.V PRAKASH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.27035 OF 2020(D)
2
JUDGMENT
The petitioner, who is the owner in possession of 3 cents of
land in Sy.No.7/3 of Potta Village in Thrissur District, covered by
Ext.P1 Sale Deed bearing No.2649/2017 of Sub Registrar Office,
Chalakkudy, has filed this writ petition under Article 226 of the
Constitution of India, seeking a declaration that condition
restraining alienation or mortgage of the property covered under
Ext.P1 is null and void or in the alternative to declare that
petitioner is having every right to alienate or mortgage the
property covered under Ext.P1. The petitioner has also sought for a
writ of mandamus commanding the 4 th respondent to register the
sale deed or mortgage deed executed by the petitioner in favour of
any person for valuable consideration, without taking into account
of the condition restraining alienation or mortgage in respect of
property covered under Ext.P1 document. The petitioner owns 3
cents of land in Sy.No.7/3 of Potta Village covered by Ext.P1 Sale
Deed bearing No.2649/2017 of Sub Registrar Office, Chalakkudy,
which is one purchased after obtaining exemption from payment of
stamp duty in terms of G.O.(P) No.97/97/TD dated 23.10.2013
applicable to persons belonging to Scheduled Caste/Scheduled
WP(C).No.27035 OF 2020(D)
Tribe communities. As per Ext.P1 Sale Deed there is prohibition in
alienating the property to others. The petitioner, relying on the
judgment of this Court in Ullas P.S. v. State of Kerala and
Others [2018 (4) KHC 533], would contend that the restriction
imposed in Ext.P1 Sale Deed is legally unsustainable.
2. On 12.02.2021, the learned Special Government Pleader
has filed a statement on behalf of the 1 st respondent State, wherein
it is stated that the petitioner never approached the 1 st respondent
for redressal of his grievance. The Government of Kerala
formulated 'Life Mission' to provide dwelling units/individual
houses/ housing complexes to the marginalized houseless in the
State. An amount of Rs.4 lakhs is given as assistance for
construction of individual houses for general and Scheduled Caste
communities. Giving permission for alienating the land will defeat
the very intention of the Government in providing assistance to
landless persons.
3. The petitioner has filed a reply affidavit, producing
therewith Ext.P5 representation dated 08.02.2021 submitted
before the 2nd respondent.
4. Heard the learned counsel for the petitioner and also the
WP(C).No.27035 OF 2020(D)
learned Special Government Pleader for the respondents.
5. During the course of arguments, the learned counsel for
the petitioner confined the relief sought for in this writ petition as
one for consideration of Ext.P5 representation.
6. The learned Special Government Pleader would submit
that the 2nd respondent will consider and pass appropriate orders
on Ext.P5 representation made by the petitioner, if the same is
pending consideration, within a time limit to be fixed by this Court.
7. Having considered the submissions made by the learned
counsel on both sides, this writ petition is disposed of by directing
the 2nd respondent to consider and pass appropriate orders on
Ext.P5 representation made by the petitioner, if the same is
pending consideration, as expeditiously as possible, at any rate,
within a period of two months from the date of receipt of a certified
copy of this judgment with notice to the petitioner and after
affording him an opportunity of being heard.
8. In State of U.P. v. Harish Chandra [(1996) 9 SCC
309] the Apex Court held that no mandamus can be issued to
direct the Government to refrain from enforcing the provisions of
law or to do something which is contrary to law. In Bhaskara Rao
WP(C).No.27035 OF 2020(D)
A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated that,
generally, no Court has competence to issue a direction contrary to
law nor can the Court direct an authority to act in contravention of
the statutory provisions. The courts are meant to enforce the rule
of law and not to pass the orders or directions which are contrary
to what has been injected by law.
9. Therefore, in terms of the direction contained in this
judgment, the 2nd respondent shall take an appropriate decision in
the matter, strictly in accordance with law, taking note of the
relevant provisions and also the law on the point.
10. The legal contentions raised by the petitioner are left
open to be raised before the 2 nd respondent at the time of
consideration of Ext.P5 representation.
No order as to costs.
Sd/-
ANIL K.NARENDRAN
JV JUDGE
WP(C).No.27035 OF 2020(D)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE SALE DEED BEARING
NO.2649/2017 DATED 9.10.2017.
EXHIBIT P2 THE BUILDING PERMIT DATED 20.12.2019.
EXHIBIT P3 THE APPROVED PLAN.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT REPORTED IN
2018 (4) KHC 533.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED
8/2/2021 FILED BEFORE 2ND RESPONDENT
