K.M.Mathai vs The State Of Kerala
2022 Latest Caselaw 6863 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                         WP(C) NO. 4952 OF 2022
PETITIONER:

          K.M.MATHAI
          AGED 67 YEARS
          S/O. LATE MATHAI, RESIDING AT KIZHUKAYIL HOUSE,
          VAZHARMANGALAM P.O., MANGALAM MURI, CHENGANNUR,
          ALAPPUZHA DISTRICT, PIN-689121.
          BY ADV K.N.RADHAKRISHNAN(THIRUVALLA)


RESPONDENTS:

    1     THE STATE OF KERALA
          REP. BY THE SECRETARY TO THE GOVERNMENT, REVENUE
          DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
          PIN-695001.
    2     REVENUE DIVISIONAL OFFICER,
          OFFICE OF THE REVENUE DIVISIONAL OFFICE, CHENGANNUR,
          CHENGANNUR P.O., ALAPPUZHA DISTRICT, PIN-689121.
    3     THE SUB REGISTRAR,
          OFFICE OF SUB REGISTRAR, CHENGANNUR, CHENGANNUR P.O.,
          ALAPPUZHA DISTRICT, PIN-689121.
          SMT.DEEPA NARAYANAN, SENIOR GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 4952 OF 2022
                                   2


                P.V.KUNHIKRISHNAN, J.
               ------------------------------
               W.P.(C).No. 4952 of 2022
       ----------------------------------------------
        Dated this the 14th day of June, 2022

                            JUDGMENT

The above writ petition is filed with the following prayers:

"(1) Call for the records leading to the entry of attachment/injunction in Ext.P4 and may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing the said entry in the interest of justice.

(2) Issue a Writ of mandamus or any other appropriate writ, order or direction commanding the second respondent to vacate the order of attachment/injunction in respect of property covered by Exhibit P1 and P2 and communicate the same to the Sub Registrar for the interest of justice.

(3) Declare that the revenue authorities have no jurisdiction or competence to impose any restriction in alienation/transfer or encumber property alleging that the petitioner landowner has violated any provisions of Kerala Conservation of Paddyland and wetland Act, 2008.

(4) To pass any such or further orders as the petitioner may seek and this Hon'ble Court deem fit to grant."[SIC] WP(C) NO. 4952 OF 2022

2. The petitioner is aggrieved by the order of

attachment/injunction passed by the Revenue Divisional

Officer, restraining the transfer of his property alleging

violation of the provisions of Kerala Conservation of

Paddyland and Wet land Act, 2008 (for short 'the Act').

The petitioner intends to transfer his property and for

that purpose, he took encumbrance certificate from the

SRO concerned. The petitioner received, Ext.P4

encumbrance certificate. In Ext.P4, the serial No.3 says

that there is attachment/injunction. According to the

petitioner, the Revenue Divisional Officer has no

jurisdiction to pass such orders and the same should be

removed from Ext.P4. Hence this writ petition is filed.

3. Heard counsel appearing for the petitioner and

the learned Government Pleader.

4. The counsel appearing for the petitioner

reiterated his contentions in the writ petition. The

Government Pleader submitted that the jurisdiction of

the Revenue Divisional Officer is mentioned in Section 23

of the Act. The Government Pleader submitted that the WP(C) NO. 4952 OF 2022

proceedings under Section 11 was initiated against the

petitioner. The order that can be passed is stated in

Section 23 of the Act, which says that penalty can be

imposed.

5. This Court considered the contentions of the

petitioner and the Government Pleader. After going

through the contentions raised by both sides, I am of the

considered opinion that the 2nd respondent has no

authority to pass attachment/injunction while invoking

the powers under Section 23 of the Act. Moreover, this

Court in Ansy Rajan v. District Collector Ernakulam

and others [2020 (4) KHC 403] clearly stated that the

authorities either under Kerala Land Utilization or under

the Paddy land Act does not have any jurisdiction or

competence to put a condition that the land owner can

not alienate, encumber or transfer the land while dealing

with alleged cases of violation as per those provision.

Therefore, according to me, the entry in Ext.P4 to the

effect that there is attachment/injunction is to be lifted

by the authority concerned.

WP(C) NO. 4952 OF 2022

Therefore this writ petition is disposed of in the

following manner:

i. The 3rd respondent is directed to remove

the attachment/injunction mentioned in Serial

No.3 of Ext.P4.

ii. The 3rd respondent will issue a fresh

encumbrance certificate, if any application is filed

after making correction as stated above.

iii. The 2nd respondent is free to proceed in

accordance to law as per the Act.

Sd/-

P.V.KUNHIKRISHNAN DM JUDGE WP(C) NO. 4952 OF 2022

APPENDIX OF WP(C) 4952/2022

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF SETTLEMENT DEED NO.1268/2004 OF SRO, CHENGANNUR EXECUTED IN FAVOUR OF PETITIONER DATED 19.5.2004.

EXHIBIT P2 THE TRUE COPY OF GIFT DEED NO.3123/1984 OF SRO, CHENGANNUR EXECUTED IN FAVOUR OF PETITIONER DATED 26.11.1984.

EXHIBIT P3 THE COPY OF TAX RECEIPT DATED 26.7.2021 ISSUED FROM VILLAGE OFFICE, CHENGANNUR.

EXHIBIT P4 THE COPY OF ENCUMBRANCE CERTIFICATE ISSUED FROM THE OFFICE OF SRO, CHENGANNUR DATED 9.9.2021.

EXHIBIT P5 THE COPY OF JUDGMENT ANSY RAJAN V DISTRICT COLLECTOR ERNAKULAM AND OTHERS (2020 (4) KHC 403).

RESPONDENTS EXHIBITS : NIL

//TRUE COPY//

PA TO JUDGE