Kerala High Court
State Of Kerala Represented By Its ... vs M C George on 1 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 1ST DAY OF MARCH 2023 / 10TH PHALGUNA, 1944
WA NO. 102 OF 2022
AGAINST THE JUDGMENT DATED 04.12.2021 IN W.P.(C)
NO.16705/2021
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APPELLANTS/RESPONDENTS IN WP(C):
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY,
REVENUE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
2 THE DISTRICT COLLECTOR, MALAPPURAM DISTRICT,
COLLECTORATE, MALAPPURAM DISTRICT, PIN - 676503.
3 SUB REGISTRAR, OFFICE OF THE SUB REGISTRY,
KARUVARAKUNDU, MALAPPURAM DISTRICT,
PIN - 676503.
4 TAHSILDAR, NILAMBUR TALUK, NILAMBUR,
PIN - 679329.
5 VILLAGE OFFICER, KERALA ESTATE VILLAGE, KERALA
ESTATE P O, MALAPPURAM DISTRICT, PIN - 676525.
BY ADVS.
SHRI.JAFFAR KHAN, SPECIAL GOVERNMENT PLEADER
ADVOCATE GENERAL OFFICE KERALA
SHRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL()
RESPONDENT/PETITIONER IN WP(C):
M.C.GEORGE, AGED 72 YEARS,
SON OF LATE M.C. CHERIAN, RESIDING AT NO.55,
LAVELLE ROAD, BANGALORE, PIN - 560001.
BY ADVS.
M.A.ABDUL HAKHIM
JAGAN ABRAHAM M.GEORGE
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.No.102/2022 2
JUDGMENT
A.Muhamed Mustaque, J.
The State has come up with this appeal
challenging the judgment of the learned Single
Judge in W.P.(C) No.16705/2021 dated 04/12/2021.
2. The writ petitioner has been served with
an order by the District Collector invoking
Section 120A of the Kerala Land Reforms Act, 1963
(for short, the 'KLR Act'). The said order is
produced as Ext.P4. The purport of the order is
to prevent registration of the document in
respect of the land comprised in Re-survey
Nos.182/7Pt, 188/2Pt, 187/Pt, 186/2 in Block
No.156 of C2 Division in Kerala Estate Village.
3. This is the third round of litigation.
The factual background of the case is as follows:
The writ petitioner claims that he is in
possession of the land having extent of 396.11
acres in the above land and after sale of the
portion of the land he is now having 257.79
acres. He claims possession along with his
brother M.C.Chandy. The derivation of title as
referred in the pleadings indicates that the writ
petitioner along with his brother is in
possession of the land by way of lease hold
right. The original lease holder obtained the
property in a court auction conducted in 1890.
Jenm right of the above property belonged to
Bamblasserry Madathil Sankunni Menon and Ramunni
Menon. They initially leased 2130 acres out of
the said property of 3596.55 acres to Mr.Edward
Lionel Kirwan as per an Indenture of Lease
No.527/1908 for a period of 99 years. Mr.Edward
Lionel Kirwan further leased the said property of
2130 Acres to M/s.Kerala Rubber Company Limited
as per document No.126/1910 of SRO, Chengelpet.
Thereafter, Bamblasserry Madathil Sankunni Menon
and Ramunni Menon leased the remaining 1466.55
acres out of the said property of 3596.55 acres
to Mr.Edward Lionel Kirwan as per an Indenture of
Lease No.3368/1914 SRO, Chengelpet for a period of
99 years. The Kerala Rubber Company went into
liquidation. The Kerala Rubber Company Limited in
liquidation along with Mr.Edward Lionel Kirwan
sold the leasehold rights over the entire
property of 3596.55 acres to M/s.Kerala Calicut
Estate Limited as per various documents between
the years 1922 to 1934. The ancestors of the
writ petitioner purchased the leasehold rights of
2355 acres out of the said 3596.55 acres from the
Kerala Calicut Estate Limited as per Indenture
No.834/1956 of SRO, Calicut. The ancestors
appears to have entered into a partition deed.
The land now claimed to be in possession of the
writ petitioner was allotted to his father in a
partition and thereafter, their father gifted the
land to the writ petitioner and his brother.
There is no dispute as to the fact that the
derivation of the rights claimed by the writ
petitioner by way of lease from the original
owner of the land.
4. The writ petitioner along with his
brother wants to sell the property. The
registering authority refused to register the
document. The writ petitioner approached this
Court in W.P.(C) No.36009/2015. It appears that
certain investigations were being carried out at
that time as against the nature of the right held
by the writ petitioner. Further, the Government
opposed registration of the document till
investigation in the matter is over. The learned
Single Judge by judgment dated 28.3.2017 directed
the Principal Secretary (Revenue) to complete the
investigation in a time bound manner. The writ
petitioner was also prevented from transferring,
alienating and encumbering the property within
three months. Thereafter, the Government passed
an order on 21.11.2017. The said order reads thus:
"Government have examined the matter in
detail and decided that the prayer of the
petitioner to accept the Basic Land Tax cannot
be considered until the Division Bench of the
Hon'ble High Court give their verdict in the
cases referred as 1st above. The judgment dated
28.03.2017 of Hon'ble High Court in WP(C)
No.36009/2015 is complied accordingly."
5. It is to be noted that the Government
while passing that order, opined that the writ
petitioner cannot claim the tenancy right beyond
30 Acres and therefore, the writ petitioner
cannot claim fixity of tenure and the land is
vested with the Government. In spite of making
such findings in the order dated 21.11.2017, the
Government in the ultimate portion concluded that
the request for transferring the land cannot be
concluded till a decision is taken by this Court
in regard to the matters pending relating to
Harrisons Malayalam's case.
6. The writ petitioner approached this Court
challenging the above order in W.P.(C)
No.38339/2018. The learned Single Judge who
heard the matter and noting that the Government's
claim over Harrison Malayalam's land was turned
down by a Division Bench of this Court in
Harrisons Malayalam Ltd. v. State of Kerala
[2018(2) KLT 369], held that there was no
impediment in registering the document.
Accordingly, issued following directions:
"Further it is ordered that the petitioner
will be at liberty to alienate and transfer his
properties in question and if any such deeds are
presented on behalf of the petitioner for
registration, then the competent officials
concerned will register the same, if it is
otherwise in order. However, it is made clear that
the registration officials concerned in that
eventuality cannot refuse to register the said
deeds on the grounds earlier relied on by the
respondent as referred to Exts.P-2 and P-3. It is
also made clear that the said directions issued by
this Court will be without prejudice to any action
that may be contemplated or taken by the
respondents or the officials under them as against
the properties in question, if it is otherwise
fully warranted as per law, but subject to strict
adherence to the due procedure in that regard."
7. The District Collector passed the order
invoking his power under Section 120A of the KLR
Act. It is appropriate to refer to the power of
the District Collector enumerated in Section 120A
of the KLR Act, which reads thus;
"120A. Registering officer not to register in
certain cases. - Notwithstanding anything
contained in the Registration Act, 1908
(Central Act 16 of 1908), where the District
Collector or any other officer authorised by
the Government in this behalf informs the
registering officer in writing that there are
reasonable grounds to believe that any document
relating to transfer of land which may be
presented before him for registration is
intended to defeat the provisions of this Act,
such registering officer shall not register
such document until the District Collector or
the officer so authorised, as the case may be,
informs the registering officer that the
transfer is not intended to defeat the
provisions of this Act."
8. The power conferred on the District
Collector under the above provision is to prevent
a transfer, the registration of which is intended
to defeat the provisions of the KLR Act. The KLR
Act contains various provisions protecting the
interest of the tenant and the State. If the
landowner is found to be in ownership and
possession of the land beyond the ceiling limit,
he/she is bound to surrender such land to the
State in his/her ownership and possession beyond
the ceiling limit. The Section 120A perhaps
introduced to prevent such transfer, which would
defeat the interest of the State by removing it
from the proceedings initiated under the KLR Act
in relation to ceiling.
9. The writ petitioner came before this
Court challenging the order of the District
Collector. It seems that the main resistance made
before the writ court against the order is that
the land being an exempted land and being
fragmented, the District Administration cannot
permit fragmentation of the land to register a
document. It is also contended before the learned
Single Judge that the land in question is vested
with the Government under Section 72(1) of the
KLR Act as the land found to be in possession of
the writ petitioner is exceeding 30 acres. The
learned Single Judge, who heard the matter,
overruled the objection and ordered that in the
light of the earlier judgment of this Court, the
document presented by the writ petitioner has to
be registered.
10. The learned Government Pleader,
supporting the action of the Government, argued
in extenso and submitted that the land is vested
with the Government and the writ petitioner has
no transferable interest in the land and
therefore, the District Collector is justified in
passing the order, prohibiting transfer invoking
Section 120A of the KLR Act. He also argued that
the fragmentation of the exempted land is not
permitted under the KLR Act and any transfer of
the land in derogation of the provisions of the
KLR Act will have to be prevented by the District
Administration. While Elaborating the argument,
he referred to Section 3(1)(viii) of the KLR Act,
which is a part of Chapter II. He also referred
to Section 72 of Chapter II of the KLR Act.
According to the learned Government Pleader, a
combined reading of Section 3(1)(viii) and
Section 72(1) of Chapter II of the KLR Act
abundantly makes it clear that the tenancy
created in respect of plantations exceeding 30
acres is vested with the Government. It is
submitted that under Section 74 of the KLR Act,
there is a complete prohibition of creation of
tenancy to indicate that all tenancies created
prior to the KLR Act in respect of a plantation
exceeding 30 acres are null and void, to mean
that the land held under tenancy would be vested
with the Government under Section 72 of the KLR
Act.
11. Sri.M.A. Abdul Hakkim, learned counsel
for the writ petitioner, would argue that Section
3(1)(viii) of the KLR Act only refers to the
protection of a tenant, who is holding a
plantation not exceeding 30 acres as referable
under Chapter II of the KLR Act, to purchase a
landlord's right. It is submitted that the
tenancy, any created prior to the Land Reforms
Act, continues to bind the parties to the lease
and the KLR Act will have no effect on such
leasehold and tenancy.
12. Chapter II of the KLR Act starts with the
provisions relate to exemption of tenancies of
such lands. This, obviously, is to protect the
tenant of other holdings, whom the KLR Act
intended to be dealt with. Section 3(1)(viii)
reads thus;
"3. Exemptions.- (1) Nothing in this Chapter
should apply to-
xxxxxxx
(viii) tenancies in respect of plantations
exceeding thirty acres in extent:
Provided that the provisions of this Chapter,
other than Sections 53 to 72S shall apply to
tenancies in respect of agricultural lands
which are treated as plantations under sub-
clause (c) of clause (44) or Section 2; or"
13. The exemption, in this context, has to be
understood that any tenancy created in respect of
holdings prior to the KLR Act exceeding 30 acres
cannot be subjected to the provisions under
Chapter II of the KLR Act. The vesting of land,
as referred to under Section 72 of the KLR Act,
would operate only in respect of the lands, which
are not exempted as per Section 3 of the KLR Act.
That means, the tenancy in respect of the
plantation exceeding 30 acres is exempted from
the purview of Chapter II of the KLR Act. If
Chapter II of the KLR Act does not apply, there
would be no vesting of such land with the
Government. It is to be noted what is vested with
the Government under Section 72 of the KLR Act is
the right of the landowners and intermediaries.
There is no vesting of tenancy right under
Section 72 of the KLR Act with the Government.
Section 74 of the KLR Act cannot be invoked in
respect of the tenancy created prior to the KLR
Act, as obvious from Section 74 itself, which
refers to only prohibition of future tenancies.
The lease created prior to the KLR Act will not
be annulled or will not come to an end merely
because the provisions are made to divest the
title of the landowners and intermediaries with
the Government as provided under Chapter II of
the KLR Act. If Chapter II of the KLR Act does
not apply in respect of such lands, the
Government cannot divest the interest of the
holder of the land by way of lease or ownership
to vest with the Government. The Government
cannot claim any right or interest over the
property unless a plenary power is conferred on
the Government through legislation. In the
absence of any statutory provision divesting the
interest of the tenant over a plantation
exceeding 30 acres, the Government has no manner
of right to object to transfer of leasehold
right. For the same reason, the District Court
also cannot object to such transfer invoking
Section 120A of the KLR Act as the land is an
exempted land as per the provisions of Chapter II
of the KLR Act.
14. The plea of the learned Government that
the land would be fragmented if allowed to be
transferred cannot be accepted at the moment for
the simple reason that on the earlier round of
litigation, there was a direction of this Court
in the writ petition to register the document in
accordance with law. Further, the exempted land
continued to be an exempted land even if it
transferred burdened with a qualification of
exemption. It is only in the event the land being
converted for non-exempted purposes, the
qualification for exemption is lost and ceiling
proceedings could be initiated on such exempted
land. Yet another argument raised by the learned
Government Pleader is that in view of Section 74
of the KLR Act, the lessee creating any other
lease is also prohibited. This argument appears
to be correct on the teeth of Section 74 of the
KLR Act creating any other lease. However, here,
in this case, the lessee does not want to create
another lease. He wants to transfer the entire
lease hold interest. In such circumstances,
Section 74 of the KLR Act will not come into
play. That being the case, we find no reason to
interfere with the impugned judgment. Hence, the
writ appeal stands dismissed.
The Registrar, on being satisfied with the
condition for registration of the document, shall
register the same in accordance with law.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
ln/bka
APPENDIX OF WA NO.102/2022
APPELLANT'S ANNEXURES:
ANNEXURE 1 THE TRUE COPY OF THE ORDER DATED
24/01/2020 IN SLP(C) NO.38939/2016.
ANNEXURE 2 THE TRUE COPY OF THE JUDGMENT IN COC
NO.1239/2021 DATED 06/09/2021.
