Thomaskutty vs State Of Kerala
2022 Latest Caselaw 128 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943
                       WP(C) NO. 28779 OF 2018
PETITIONER:

          THOMASKUTTY,
          DEEPA SADANAM,
          KARUNAGAPALLY,
          KOLLAM-690518.

          BY ADVS.
          PAUL JACOB (P)
          ENOCH DAVID SIMON JOEL



RESPONDENTS:

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

    2     DISTRICT COLLECTOR,
          KOLLAM-691001.

          BY ADV.SMT.M.ANIMA, G.P.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 28779 OF 2018
                                 -2-

                           JUDGMENT

The controversy projected in this writ

petition has a chequered history.

      2.    The      petitioner         is      the        son     of

Smt.Chinnamma,       who   had    made    an    application        for

assignment of land in question under a 'Subsidized

Rental Housing Scheme', brought into effect by the

Government.

3. The afore said application was allowed and

Smt.Chinnamma was directed to pay an amount of

Rs.8,40,478/-, being the value of the land,

through Government Order dated 07.09.2007; but

since she was unable to raise the said figure, she

and the petitioner appear to have made

representations before the Government, which led

to several litigations thereafter. It finally

concluded through Ext.P1 judgment in W.P.(C)

No.38373 of 2015, wherein, after considering all WP(C) NO. 28779 OF 2018

the factual factors involved, a learned Judge of

this Court found that since the Government had

agreed to assignment of land in favour of the

petitioner's mother, through their order dated

07.09.2007 for the aforementioned figure, the

petitioner and his siblings - by then

Smt.Chinnamma had died - must be given the

benefits of obtaining assignment, by paying the

afore said amount, along with interest at the rate

of 6% per annum from 15.03.2010.

4. The afore said judgment was appealed

against by the petitioner, both on the question of

the quantum of amount fixed and also because of

the assignment was ordered to be made in favour of

his siblings along with himself, which led to

Ext.P2 judgment and Ext.P3 order being issued,

whereby, Ext.P1 judgment was modified partially by

fixing the amount payable to the Government as

being a total of Rs.12,15,478/-; with a direction WP(C) NO. 28779 OF 2018

that assignment will be made in favour of the

petitioner alone, noticing a Will left by his

mother, which had already been probated.

5. The afore judgments and orders of this

Court were complied with by the Government, by

issuing Ext.P4 order dated 21.11.2017, directing

the District Collector to issue an appropriate

assignment order in favour of the petitioner.

6. It transpires that the District Collector

thereupon invoked the provisions of the Assignment

of Land within Municipal and Corporation Areas

Rules, 1995 (hereinafter referred to as 'the

Rules', for short) and issued Ext.P5 order of

assignment, leading to Ext.P6 "Patta" being

granted; however, with a condition that the

property is not alienable for a period of 12 years

from the date of assignment.

7. It is this condition in Exts.P5 and P6, WP(C) NO. 28779 OF 2018

which has been challenged by the petitioner

through this writ petition.

8. I have heard Smt.Susan Kurian - learned

counsel for the petitioner and Smt.M.Anima -

learned Government Pleader, appearing for the

official respondents.

9. Smt.Susan Kurian - learned counsel for the

petitioner, argued that the impugned condition in

Ext.P5 order of assignment and in Ext.P6 "Patta "

is illegal because, assignment has not been made

under the provisions of 'the Rules', but strictly

as per the directions of this Court in Exts.P1 to

P3 judgments and order, respectively, She further

pointed out that, in Ext.P1 judgment, the

assignment was ordered to be done based on the

Government Order dated 07.09.2007, adopting the

value mentioned therein and therefore, that the

statutory or legal provisions which were

applicable at that time, alone could have been WP(C) NO. 28779 OF 2018

made effective as regards her client. She thus

reiteratingly prayed that this writ petition be

allowed as prayed for.

10. In response to the afore submissions,

Smt.M.Anima - learned Government Pleader,

submitted that, after Exts.P1 to P3 judgments and

order were issued, Government directed the

District Collector to implement the directions

therein by issuing Ext.P4 order dated 21.11.2017.

She submitted that, by this time, 'the Rules' had

come into force and therefore, that the District

Collector thought it necessary to issue Ext.P5

order and consequential Ext.P6 "Patta", in strict

compliance of its terms, particularly Rule 11

thereof, which makes the property assigned

thereunder not alienable for a period of 12 years.

She concluded her submissions saying that this

writ petition is not maintainable because the

petitioner has accepted Exts.P5 and P6 order of WP(C) NO. 28779 OF 2018

assignment and "Patta", respectively; and thus

prayed that this writ petition be dismissed.

11. I have carefully evaluated the afore rival

submissions and have also gone through the

materials available on record in detail.

12. There is no doubt that assignment of the

property in question was ordered in favour of the

petitioner through Exts.P1 and P2 judgments and

Ext.P3 order of this Court. In Ext.P1 judgment,

after assessing the entire factual factors

involved, a learned Judge of this Court directed

the Government to implement the Government Order

dated 07.09.2007, with the modification that the

petitioner and his siblings were directed to pay

interest on the amount of Rs.8,40,478/- mentioned

therein, from 15.03.2010, because the delay in

remitting the same was found to be only on account

of their inability. These directions were not

interdicted by Ext.P2 judgment or Ext.P3 order in WP(C) NO. 28779 OF 2018

Writ Appeal, except that the component of interest

was limited to Rs.3,75,000/-, and the petitioner

was allowed to obtain the assignment in his own

favour, on paying the total amount of

Rs.12,15,478/-.

13. It is thus luculent that this Court did

not order assignment of land in favour of the

petitioner under the provisions of 'the Rules',

but on the basis of the order of the Government

dated 07.09.2007, produced on record as Ext.P5 in

W.P.(C) No.38373 of 2015; which was, in turn,

issued edificed on the 'Subsidized Rental Housing

Scheme' of the year 1972.

14. In such manner, this Court directed the

competent Authority to assign the land based on

the Government Order dated 27.07.2011, on the

petitioner remitting the amounts mentioned

therein, along with interest. Axiomatically, the

Authorities could not have brought in the rigour WP(C) NO. 28779 OF 2018

of 'the Rules' and to have imposed the impugned

condition in the "Patta", which was not

permissible at the time when the said Government

Order was issued. If any such action was found

imperative, the competent Authorities ought to

have approached this Court and sought orders

either for the review of the judgments, or for

permission to invoke the provisions of the

'Rules'. This, not having been done admittedly, I

fail to understand how Ext.P5 order of assignment

or Ext.P6 "Patta" could have been issued with the

impugned condition, though it may have been

justified for the Collector in having invoked the

'Rules' for other procedural purposes, because

that was the only manner in which the assignment

could have been made in favour of the petitioner,

at the relevant time.

15. In the afore perspective, I am left

without doubt that the impugned condition in WP(C) NO. 28779 OF 2018

Exts.P5 order and Ext.P6 "Patta" - though within

the ambit of 'the Rules' - could not have been

imposed in the case at hand, for the reasons that

I have already indited above, particularly that

assignment was ordered to be made by this Court

through Ext.P1 judgment, based on the Government

Order dated 07.09.2007, which was, in turn, issued

under the aegis of the 'Subsidized Rental Housing

Scheme' of the year 1972.

Resultantly, I order this writ petition, to

the limited extent of declaring that the restraint

of alienation, mentioned in Ext.P5 order and

Ext.P6 "Patta", will not apply to the petitioner

and that he will be free to deal with his

property, in any manner, which he may choose.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C) NO. 28779 OF 2018

APPENDIX OF WP(C) 28779/2018

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 20.6.2016 IN WPC.NO.38373/2015 ON THE FILES OF THIS HON'BLE COURT.

EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 23.5.2017 IN W.A.1867/2016 ON THE FILES OF THIS HON'BLE COURT.

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 31.10.2017 IN I.A.1212/2017 IN W.A.1867/2016 ON THE FILES OF THIS HON'BLE COURT.

EXHIBIT P4 TRUE COPY OF GO.(MS)NO.390/2017/REV DATED 21.11.2017 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P5 TRUE COY OF THE ORDER OF ASSIGNMENT ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE PATTA ISSUED BY THE 2ND RESPONDENT.

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE