Shekkabba Beary vs State Of Kerala
2021 Latest Caselaw 19552 Ker

                                                                             CR
                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

         FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943

                             WP(C) NO. 8204 OF 2021

PETITIONER:

               SHEKKABBA BEARY
               AGED 68 YEARS
               S/O ABDULLA,
               BATTYA PADAVU HOUSE,
               MANJESHWAR P.O, MEENJA, MIYAPADAVU, KASARGOD DISTRICT, PIN-
               671323.

               BY ADVS.
               R.ANAS MUHAMMED SHAMNAD
               SRI.C.C.ANOOP
               SRI.BOBY THOMAS



RESPONDENTS:

     1         STATE OF KERALA,
               REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
               REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

     2         TAHSILDAR,
               TALUKM OFFICE,
               MANJESHWAR P.O,
               KASARGOD DISTRICT-671323.

     3         SUB REGISTRAR,
               MANJESHWAR SUB REGISTRY, MAJESWARAM P.O,
               KASARGOD DISTRICT-671323.




OTHER PRESENT:

               SRI ASHWIN SETHUMADHAVAN, SR GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.09.2021,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 8204 OF 2021

                                      2




                                                                         CR
                               JUDGMENT

The petitioner claims to be the owner in possession of 42.09

Ares of property, comprised of in Survey No.189/2A2 of Paivalikke

Village in Manjeshwar Taluk, Kasargod District; and he has

approached this Court being aggrieved by the fact that the 2 nd

respondent - Tahsildar, has refused permission to sell the said

property on the ground that, as per the terms of the assignment

under which he obtained it, he is prohibiting from selling it for a

period of 25 years from the date of assignment.

2. The petitioner says that even though his application,

namely Ext.P8, seeking such permission has not been formally

rejected, he has been told by the competent Authority that it will

not be allowed and asserts that this is indubitable because, in the

counter pleadings filed before this Court, this stand has been

reiterated.

3. The petitioner, therefore, prays that the 2 nd respondent

be directed to consider Ext.P8 and allow him to sell the property

covered by Ext.P1, since as per the Kerala Land Assignment Rules,

1964 (hereinafter referred to as 'the Rules' for short), prohibition WP(C) NO. 8204 OF 2021

from alienation continues only for a period of 25 years from the

date of Registry; while going by Ext.P1, it is evident that the said

date is in the year 1974.

4. I have heard Sri.R.Anas Muhammed Shamnad, learned

counsel for the petitioner and Sri.Ashwin Sethumadhavan, learned

Senior Government Pleader appearing for the respondents.

5. The learned Senior Government Pleader contested the

afore plea of the petitioner pointing out to Clause 13(A) of Ext.P1

Certificate of Assignment, arguing that the title with respect to the

land in question passed to the petitioner only when he had

remitted its land value and arrears of tax and therefore, that the

period of prohibition contained therein will require to be construed

to commence from that date. He submitted that even though the

date of Registry of the property was in the year 1974, Ext.P2

Purchase Certificate (Patta) was issued only on 29.12.2016, after

the petitioner had complied with the conditions in Ext.P1 order of

assignment. He prayed that, therefore, the plea of the petitioner

for permission to sell the property covered by Ext.P2 may not be

acceded to by this Court.

6. After saying as afore, the learned Senior Government WP(C) NO. 8204 OF 2021

Pleader explained that the conditions against inhibition of Transfer

of Property obtained by persons under the Rules, have been

stipulated for their benefit and to ensure that they are not lured by

confutative interests in parting with the property for meagre

amounts. The learned Senior Government Pleader submitted that

therefore, when conditions incorporated in Ext.P1 are for the

benefit of the petitioner, it does not stand to a reason that he

should approach this Court and seek permission to sell his

property, thereby prejudicing himself. He added that this is more

so why the prayers in this writ petition may not be acceded to by

this Court.

7. I have evaluated the afore submissions very carefully.

8. I must say upfront that whatever be the intent behind

the submissions made by the learned Senior Government Pleader,

this Court is enjoined to follow the provisions of law and to

evaluate the stipulations contained in the statutory Scheme.

9. The provisions applicable for consideration of the issues

in this case are contained in Rules 8 and 8(1)(A) of the Rules,

which are extracted as under for the purpose of easy reference:

 WP(C) NO. 8204 OF 2021





                                "8.    Conditions of assignment on
                         registry:-[(1)      Lands,     granted      on

registry shall be heritable and alienable.]

[(1A) Notwithstanding anything contained in sub-rule (1), unoccupied lands assigned on registry shall not be alienable for a period of three years from the date of registry:

Provided that the assignee may mortgage such lands-

[(a) to the Government or Co-operative Institutions or the Tea Board or the Rubber Board or any other financial institution recognized by the Government in this behalf, as security for obtaining loans for agricultural or land improvement purposes or for growing tea or rubber, and]

(b) to the Government or Co-operative Institutions as security for obtaining loans for house construction under the Village Housing Project Scheme or any other Housing Schemes Sponsored by the Government, if such house is required for the occupation of the assignee or his family].

10. As is ineluctable from the afore extracted provisions, the

prohibition against alienation of the property covered by the Rules

has been prescribed for a period of 25 years from the date of

registry. Thereafter, in 8(1)(A), it is limpidly provided that the

land assigned on Registry shall be heritable and alienable.

11. The conjoined effect of the afore provisions can only be WP(C) NO. 8204 OF 2021

that from the date of Registry, the beneficiary cannot sell the

property for a period of 25 years. The provisions do not, in any

manner, even refer to the issuance of Purchase Certificate or the

date on which it is done, but specifically and unequivocally only to

the date of Registry.

12. I am, therefore, without any doubt in my mind that

Ext.P8 application can be rejected by the competent Authority only

if it is found that the date of Registry with respect to the property,

covered by Ext.P2 Purchase Certificate, is within the umbra of 25

year period.

13. However, prima facie, Ext.P1 demonstrates that the

date of Registry was in the year 1974, though the Purchase

Certificate consequent to it was issued in the year 2016. In my firm

view, the date of Purchase Certificate is of no consequence at all,

when one examines the afore extracted provisions of Rule 8 of the

Rules.

Resultantly, I allow this writ petition and direct the 2 nd

respondent to take up Ext.P8 application of the petitioner and issue

appropriate orders thereon, implicitly in terms of my observations

above and after verifying whether the date of Registry with respect WP(C) NO. 8204 OF 2021

to the property falls beyond the period of 25 years.

The afore exercise shall be completed by the 2 nd respondent,

after affording an opportunity of being heard to the petitioner, as

expeditiously as is possible but not later than one month from the

date of receipt of a copy of this judgment.

Sd/-

DEVAN RAMACHANDRAN JUDGE rp WP(C) NO. 8204 OF 2021

APPENDIX OF WP(C) 8204/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE ORDER OF ASSIGNMENT OF REGISTRY BEARING L.A-104/74/PAIVALIKE DATED 23.05.1974 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE PATTA DATED 29.12.2016 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE FAMILY MEMBERSHIP CERTIFICATE, DATED 21.03.2019 OF MAMMADE BEARY ISSUED FROM THE VILLAGE OFFICER, PAIVALIKKAI.

EXHIBIT P4 TRUE COPY OF THE LAND RECEIPT DATED 3.11.2020 ISSUED FORM THE PAIVALIKKAI VILLAGE OFFICE.

EXHIBIT P5 TRUE COPY OF THE DEATH CERTIFICATE DATED 17.12.2019 ISSUED BY THE REGISTRAR OF DEATHS AND BIRTHS, MEENJA GRAMA PANCHAYATH.

EXHIBIT P6 TRUE COPY OF THE CERTIFICATE DATED 21.1.2021 ISSUED BY THE TAHSILDAR, MAJESHWARAM TALUK.

EXHIBIT P7 TRUE COPY OF THE SALE DEED EXECUTED ON 8/2/2021.

EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 9.11.2020 SUBMITTED BEFORE THE 2ND RESPONDENT.

Exhibit P9 TRUE COPY OF THE JUDGMENT DATED 27.11.2015 IN W.P(C) NO. 24412/2015 (K.R. APPU V. STATE OF KERALA)