Kerala High Court
Moncy Daniel vs The Revenue Divisional Officer on 12 December, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
TUESDAY, THE 12TH DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945
WP(C) NO. 20526 OF 2023
PETITIONER:
M. K. SOMASEKHARA PANICKER,
AGED 76 YEARS
S/O. KRISHNA KURUP, VILLA NO. 8,
SOUPARNIKA GARDENS, MARKET ROAD,
NEAR DAKSHINA UDAPI TEMPLE,
TRIPUNITHURA, ERNAKULAM., PIN - 682301
BY ADVS.LEO LUKOSE
ENOCH DAVID SIMON JOEL
S.SREEDEV, RONY JOSE
KAROL MATHEWS SEBASTIAN ALENCHERRY
DERICK MATHAI SAJI
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT
REVENUE DEPARTMENT, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 DISTRICT COLLECTOR, CIVIL STATION,
KAKKANADU, ERNAKULAM, PIN - 682021
3 SUB-COLLECTOR (REVENUE DIVISIONAL OFFICER)
REVENUE DIVISIONAL OFFICE, FORT KOCHI,
ERNAKULAM DISTRICT, PIN - 682001
4 TAHSILDAR, KANAYANNUR TALUK OFFICE
ERNAKULAM, PIN - 682011
5 VILLAGE OFFICER
NADAMA THEKKUMBHAGAM VILLAGE OFFICE,
MARADU, ERNAKULAM., PIN - 682040
6 LOCAL LEVEL MONITORING COMMITTEE
REPRESENTED BY ITS CONVENOR,
AGRICULTURAL OFFICER,
NADAMA THEKKUMBHAGAM VILLAGE,
KANAYANNUR TALUK, ERNAKULAM, PIN - 682040
WP(C) Nos.20526 of 2023
&
37083 of 2023 2
OTHER PRESENT:
GP - SYAMANTHAK B.S.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.12.2023, ALONG WITH WP(C).37083/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) Nos.20526 of 2023
&
37083 of 2023 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
TUESDAY, THE 12TH DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945
WP(C) NO. 37083 OF 2023
PETITIONERS:
1 MONCY DANIEL,AGED 57 YEARS
S/O MR. DANIEL C., FLAT NO.11C,
GRAND MEDOW, KUNDANNOOR, MARADU PO,
ERNAKULAM, PIN - 682304
2 GODSEE MONCY, AGED 48 YEARS
W/O MONCY DANIEL, FLAT NO.11C,
GRAND MEDOW, KUNDANNOOR, MARADU PO,
ERNAKULAM, PIN - 682304
BY ADVS.
SAJI VARGHESE KAKKATTUMATTATHIL
AMALENDU A.
RESPONDENTS:
1 THE REVENUE DIVISIONAL OFFICER
FORT KOCHI, PIN - 682001
2 THE TAHSILDAR (LR).
TALUK OFFICE, KANAYANNUR,
ERNAKULAM-, PIN - 682011
3 THE VILLAGE OFFICER
VILLAGE OFFICE, MARADU, ERNAKULAM,
PIN - 682304
BY GP RIYAL DEVASSY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.12.2023, ALONG WITH WP(C).20526/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) Nos.20526 of 2023
&
37083 of 2023 4
C.R.
VIJU ABRAHAM, J.
.................................................................
W.P (C) No. 20526 of 2023
and
WP (C) No. 37083 of 2023
.................................................................
Dated this the 12th day of December, 2023
JUDGMENT
The petitioner has approached this Court seeking a direction to the 3 rd
respondent to recall Ext.P3 order and pass fresh orders in his name without
insisting on remitting any further conversion fee. Petitioner has sought for
other consequential reliefs also.
2. Petitioner is the absolute owner and in possession of 2.02 Ares (4.99
cents) of property along with a residential building lying in resurvey no.104/2
of Nadama Thekkumbhagam Village in Ernakulam District obtained as per
Ext.P1 sale deed executed on 08.07.2021. Petitioner purchased the above
property from one Mr.Anoop R, who obtained the same extent of property as
per sale deed No.2814 of 2012 of Tripunithura Sub Registrar Office. There is
no fragmentation of property while executing Ext.P1 sale deed. Even though
the entire neighbourhood is developed and nature of the land was lying as
purayidam and the predecessor-in-interest of the vendor of the petitioner had
&
obtained building permit and had constructed a building in the above-
mentioned property in the year 2005, in the revenue records, the nature of
the property has been shown as nilam instead of purayidam as is evident
from Ext.P2 tax receipt. Petitioner contended that the property has remained
as fallow for more than 20 years and there is a residential building in the said
property which has been constructed based on a valid licence and permit
issued by the Panchayat. While so, when Mr. Anoop R. from whom the
petitioner purchased the above-mentioned property approached the
Panchayat for the purpose of sale of the same, it was informed that the
property was shown as nilam instead of purayidam in the revenue records
and thereupon Mr.Anoop R. submitted an application in accordance with
Section 27A of the Kerala Conservation of Paddy Land and Wet land Act
2008 (hereinafter referred to as Act of 2008) in Form 6 after paying requisite
conversion fee. Petitioner was informed by the said Anoop at the time of
execution of Ext.P1 sale deed that Form 6 application has already been
submitted with respect to the above-mentioned property and it was also
informed that he will intimate the concerned officials about the sale of the
property. Since no communication was received from the respondents after
the submission of the Form 6 application even after the purchase, the
petitioner approached the 3rd respondent and enquired about the status of the
same wherein he was informed that Ext.P3 order dated 24.03.2022 had
already been issued by the 3rd respondent allowing the conversion of the
&
nature of petitioner's property, but the same has been issued in the name of
Mr. Anoop R. The contention of the petitioner is that the purchase was on
08.07.2021 and it is only thereafter that the order dated 24.03.2022 was
issued allowing conversion of nature the petitioner's property, Ext P3 order
ought to have been issued in his name. Thereupon, he requested the 3 rd
respondent to recall Ext.P3 and pass fresh orders in his name. In turn, he
was informed that since the petitioner purchased the property after 2017, he
has to remit 10% of the fair value of the property for passing fresh orders and
for further processing of the application for correction in the records of the 5 th
respondent. Subsequent to the request made by the petitioner to recall
Ext.P3 and to pass fresh orders in his name, the 4th respondent submitted
Ext.P4 letter before the 3rd respondent intimating that further action may be
taken for issuing Ext.P3 order in the name of the petitioner. The 5 th
respondent also submitted a detailed report before the 3rd respondent as per
Ext.P5 that the property mentioned in Ext.P3 belongs to the petitioner and
further action may be taken to recall Ext.P3 order and pass fresh orders in
the name of the petitioner. Petitioner submits that Exts.P4 and P5 have not
been considered by the 3rd respondent. Thereafter petitioner again
represented before the 3rd respondent as per Ext.P6 to expedite the request
made by him to recall Ext.P3 and pass fresh orders in his name. Petitioner
would further contend that demand for conversion fee is not sustainable in
view of the amendment made to the schedule constituted as per Rule 12(9)
&
of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 as there
is no requirement for the payment of fees or charges for conversion upto and
inclusive of 25 cents of paddy land, on and with effect from 25.02.2021.
Petitioner submits that his property is less than 5 cents which falls within the
limit prescribed under the amended schedule of the Rules and further that
there is no fragmentation of property while executing Ext.P1 sale deed.
3. The learned Government Pleader brought to my notice a
communication issued by the Government dated 08.06.2023 bearing
no.REV-P1/91/2023-REV in connection with the issue regarding the transfer
of the property while an application for removing the property from the data
bank or for changing the nature of the land was pending consideration. In the
said communication, the Government decided that the application could be
considered on the basis of a no-objection certificate submitted by the person
who has filed the application in this regard and based on the said no-
objection certificate the purchaser of the property could submit a further
application and the said application would be decided maintaining the
seniority.
4. I have heard the learned counsel for the petitioner as well as the
learned Government Pleader.
5. In the present case the issue is slightly different from the issue covered
by the communication dated 08.06.2023 referred to by the learned
Government Pleader inasmuch as after the purchase of the property Ext.P3
&
order has already been issued allowing the application in Form 6 in the name
of Mr.Anoop R. from whom the petitioner purchased the said property. Even
the said circular was issued by the Government on being aware that there
could be a transfer of property after submission of an application and the
permission granted as per the said circular permitting the subsequent
purchaser to proceed with the application on the strength of an NOC from the
original applicant itself would show that the orders to be passed on the
application is on the land and it is immaterial whether it is filed by the
erstwhile owner or the subsequent purchaser. Therefore, the question to be
considered is as to whether in the facts and circumstances of this case,
Ext.P3 is to be recalled and a fresh order should be issued in the name of the
petitioner.
6. Admittedly, the application in Form 6 was submitted by Mr.Anoop R.,
from whom the petitioner purchased the property as per Ext.P1 sale deed. It
is an admitted fact that it is after the said purchase that the application in
Form 6 has been allowed as per Ext.P3 in the name of Mr.Anoop R.
Whatever that be, the application in Form 6 was submitted by the erstwhile
owner of the property requesting for change of nature of land has been
allowed and the natural consequence of which is that change of nature of
land has been permitted in respect of the property in question which is now in
the ownership of the petitioner as per Ext.P1 deed. Section 27A of the Act of
2008 provides that if any owner of an unnotified land desires to utilise such
&
land for residential or commercial or for other purposes, he shall apply to the
Revenue Divisional Officer for permission in such manner as may be
prescribed. Even though the application was filed by the then owner, the
permission for change of nature of land was granted in respect of the
property, which was subsequently purchased by the petitioner. Section 5 of
the Transfer of Property Act, 1882 defines transfer of property and Section 6
deals with what could be transferred. Section 6 of the Transfer of Property
Act, 1882 mandates that property of any kind may be transferred except as
otherwise provided by this Act or by any other law for the time being in force.
The right to file an application under Section 27A of the Act of 2008 is a
statutory right that could be invoked by the owner of the property, which has
admittedly been done in the present case. The said application was allowed
taking into consideration the nature of the land and the order issued under
Section 27A is an order in respect of the land. The only mandate of the
Section is that the application could be made only by the owner of the
property but the order passed on the said application is one affecting the land
in question where a change of nature of land is sought. Therefore, the said
right accrued on the land will not vanish due to a transfer of the said land to a
third party while the application was pending consideration. The petitioner
who is the subsequent purchaser of the property will be entitled to any
right/benefit accrued on the property by way of Ext P3 order irrespective of
whether the application was made by the erstwhile owner or the petitioner.
&
The Apex Court in Union of India and Others v. Iqbal Singh, (1976) 1 SCC
570 had occasion to consider the effect of a statutory right in the light of
Section 6 of the Transfer of Property Act, though while dealing with a claim
for compensation, has held in paragraph 9 as follows:
"9. It is true that the Act is intended for payment of compensation for
rehabilitation of displaced persons and matters connected therewith. There
is, however, nothing in the Act to prevent a claimant from making a gift or a
will in respect of the amount he may be entitled to get. No provision of the
Act takes away rights of transfer of or inheritance to verified claims.
Nothing like an abatement or extinction of a claim by the death of the
claimant is provided for by the Act. Inheritance to and devolution of rights
of claimants are clearly beyond the purview or scheme of the Act. They are
untouched by the provisions of the Act and are governed by other
provisions of law. The statutory rights of claimants to compensation, which
crystallize on assessment and verification of claims, are separate rights to
property of each claimant covered by the wide definition of "property" in
Section 6 of the Transfer of Property Act. They cannot evaporate or vanish
suddenly with the death of a claimant. Rules framed under Section 40 of
the Act have to be and are those reasonably necessary for carrying out the
purposes of the Act. They cannot go beyond the objects for which they can
be framed. Those objects are confined to determination and payment of
compensation for what was left in Pakistan and do not extend to
deprivation of anything acquired in India in capacities other than those
relevant for purposes of compensation."
(underline supplied)
7. Section 54 of the Transfer of Property Act dealing with the sale of
immovable property is also relevant for consideration of the issue involved in
this case. Section 54 defines sale as a transfer of ownership in exchange for
a price paid or promised or part-paid and part-promised. "Ownership" as
&
defined in the Advanced Law Lexicon by P.Ramanatha Aiyar, 4th Edition
is as follows:
"Ownership. The collection of rights allowing one to use and enjoy
property, including the right to convey it to others. Ownership implies the
right to possess a thing, regardless of any actual or constructive control.
Ownership rights are general, permanent and inheritable.
........... ........... ........
Ownership consists of innumerable rights over property, for example, the
rights of exclusive enjoyment, of destruction, alteration and alienation, and
of maintaining and recovering possession of the property from all other
persons. Such rights are conceived not as separately existing, but as
merged in one general right of ownership. HALSBURY, 3rd Edn., Vol.29,
p.371.
........ ... ............. ............
The term "ownership" is not merely as word of technical legal meaning but
it is to be interpreted in its broadest possible meaning. It consists of a
bundle of rights in respect of a property. Inder Sen v. Naubat Singh,
(1885) ILR 7 All 553, 556."
Going by the said definitions, ownership is a collection of rights allowing one
to use and enjoy the property, with the right to convey it to others. In the said
circumstance since the effect of the order passed in an application under
Section 27A of the Act of 2008 is on the land in question, even if the transfer
of land is made pending consideration of the said application, the right
whatsoever accrued on the land on the application made by the erstwhile
owner will definitely get transferred to the benefit of the subsequent
purchaser.
8. In view of the above, I am of the opinion that the petitioner who is the
&
subsequent purchaser should be granted the benefit of Ext P3 order without
obliging him to undergo the procedure prescribed under Section 27A by filing
a fresh application. Therefore, there is no requirement for passing a fresh
order in the name of the petitioner after recalling Ext.P3. Whatever benefits
that have been accrued on the property by the issuance of Ext P3 order
should be extended to the petitioner who purchased the property as per
Ext.P1, while the application leading to Ext P3 order was pending
consideration. Therefore, it is ordered that Ext P3 order shall be deemed to
have been passed in the name of the petitioner who has purchased the
property as per Ext P1 deed and there will be a consequential direction to the
4th respondent/Tahsildar (LR), Kanayannur Taluk to issue further orders as
contemplated in Section 27C regarding subdivision, re-assessment of land
tax under Section 6A of the Kerala Land Tax Act, 1961 and making
necessary entries in the Revenue Records relating to the land covered by Ext
P1 and P3 within an outer limit of 45 days from the date of receipt of a copy
of the judgment, treating that Ext P3 order has been issued in the name of
the petitioner.
9. The issue raised in this writ petition is almost identical to the issue in
W.P (C) No. 20526 of 2023. In this case, the property was purchased by the
petitioners as per Exts.P1 and P2 deeds. Though the property is a garden
land, the same was wrongly included as nilam in the revenue records and the
&
vendors in Exts.P1 and P2 submitted application in Form 6 to change the
nature of land as purayidam in BTR and the said application was filed prior to
execution of Exts.P1 and P2 deeds. The said application was allowed as per
Ext.P4. Subsequently, by Ext.P5 order, the 2nd respondent directed the 3rd
respondent to issue new subdivision numbers to the land and accept land tax
provisionally by changing the nature of the land as converted land after
collecting an affidavit from the applicant. The 3rd respondent was not ready to
accept the affidavit of the petitioners and change the nature of land as per
Ext.P4 order taking a stand that the application in Form 6 was filed by the
previous owner and orders were also issued in favour of the previous owner
and the petitioners cannot raise any claim on the basis of Ext.P4 order. A
similar issue was considered in detail by this judgment and I am of the
opinion that the direction issued in W.P(C) No.20526 of 2023 should also
govern the case of the petitioners herein. Therefore, Ext.P4 order shall be
deemed to have been issued in the name of the petitioners with a
consequential direction to the 3rd respondent to comply with Ext.P5 order and
take further steps as contemplated under Section 27C of the Act 2008 in the
name of the petitioners at the earliest at any rate within an outer limit of 45
days from the date of receipt of a copy of the judgment.
10. Before parting with this case, this court deems it appropriate to remind
the authorities that an untenable technical stand should not be taken while
dealing with a request of this nature and every endeavour should be made so
&
as to minimise the procedural hurdles so that the applicants could enjoy the
rights accrued on them without any delay. The Apex Court in The Trustees
of Port of Bombay v. The Premier Automobiles Ltd and Another, (1974)
4 SCC 710 has reminded the public authorities that they should resist the
temptation to take technical pleas or even legally permissible contentions
including narrow limitation so as to defeat an honest claim. The Apex Court
in paragraph 65 of the judgment held as follows:
"65. We are of the view, in reiteration of earlier expression on the same lines,
that public bodies should resist the temptation to take technical pleas or
defeat honest claims by legally permissible but marginally unjust
contentions, including narrow limitation. In this and similar cases, where a
public carrier dissuades private parties from suing by its promises of search
for lost articles and finally pleads helplessness, it is doubtful morality to non -
suit solely on grounds of limitation, a plaintiff who is taken in by seemingly
responsible representation only to find himself fooled by his credibility. Public
institutions convict themselves of untrustworthiness out of their own mouth
by resorting to such defences."
(underline supplied)
With the above-said direction, the writ petitions are allowed.
Sd/-
VIJU ABRAHAM
JUDGE
cks
&
APPENDIX OF WP(C) 20526/2023
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE SALE DEED NO.
1173/1/2021 OF S.R.O. TRIPUNITHURA DATED
08.07.2021.
Exhibit P2 A TRUE COPY OF THE TAX RECEIPT DATED
04.07.2022 ISSUED BY THE 5TH RESPONDENT.
Exhibit P3 A TRUE COPY OF THE ORDER DATED 24.03.2022
ISSUED BY THE 3RD RESPONDENT AGAINST THE
PETITIONER.
Exhibit P4 A TRUE COPY OF THE LETTER DATED
11.08.2022 NUMBERED H3-14253/2022
SUBMITTED BY THE 4TH RESPONDENT BEFORE
THE 3RD RESPONDENT .
Exhibit P5 A TRUE COPY OF THE REPORT DATED
27.02.2023 NUMBERED 257/23 SUBMITTED BY
THE 5TH RESPONDENT BEFORE THE SUB-
COLLECTOR, FORT COCHIN
Exhibit P6 A TRUE COPY OF THE REPRESENTATION DATED
20.05.2023 SUBMITTED BEFORE THE 3RD
RESPONDENT.
&
APPENDIX OF WP(C) 37083/2023
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE SALE DEED NO.1756/2021
OF SRO, MARADU DATED 17/09/2021
Exhibit P2 . A TRUE COPY OF THE SALE DEED
NO.1757/2021 OF SRO, MARADU DATED
17/09/2021
Exhibit P3 A TRUE COPY OF THE SETTLEMENT DEED
NO.2465/2014 OF SRO, MARADU DATED
25/08/2014
Exhibit P4 A TRUE COPY OF THE ORDER OF THE 1ST
RESPONDENT DATED 22.08.2023
Exhibit P5 A TRUE COPY OF THE ORDER OF THE 2ND
RESPONDENT DATED 17.10.2023
