Abdul Nazar vs State Of Kerala
2024 Latest Caselaw 15610 Ker

Kerala High Court

Abdul Nazar vs State Of Kerala on 6 June, 2024

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
     THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
                        WP(C) NO. 36057 OF 2023
PETITIONERS:

    1     ABDUL NAZAR
          AGED 55 YEARS
          S/O MOIDEEN KUTTY, ERANHONA HOUSE, ADIVARAM P.O,
          PUTHUPPADY, KOZHIKODE DISTRICT,, PIN - 686582

    2     SIDHIQUE U
          AGED 44 YEARS
          S/O K.M. YUSAF, THAIBA MANZIL, VYTHIRI P.O,
          KUNNATHIDAVAKA, WAYANADU DISTRICT, PIN - 673576

          BY ADVS.
          T.N.SURESH
          DHANUJA VETTATHU
          YEDU KRISHNA S.
          P.SREEJITH


RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, 2ND FLOOR
          NORTH BLOCK, SECRETARIAT, THIRUVANANTHAPURAM, PIN -
          695001

    2     DISTRICT COLLECTOR
          WAYANAD, CIVIL STATION, KAIRALI NAGAR, KALPETTA, PIN -
          673122

    3     SUB REGISTRAR
          SUB REGISTRAR OFFICE, KALPETTA, VYTHIRI,
          KUNNATHIDAVAKA, PIN - 673576


OTHER PRESENT:

          SR.GP-DEEPA NARAYANAN


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C).No.36057 of 2023       2



                      VIJU ABRAHAM,J
                 -----------------------
                W.P.(C).No.36057 of 2023
            ---------------------------------
           Dated this the 6th day of June, 2024

                           JUDGMENT

The above writ petition is filed challenging

Ext.P6 and for a direction to the 3 rd respondent to

execute the sale deed that may be submitted by the

petitioner to transfer their property covered by

Ext.P2.

2. The brief facts necessary for the disposal

of the writ petition is as follows:

M/S.Poddar Plantations Ltd., was the owner and

in exclusive possession of a wide extent of

1501.500 Acres of land obtained as per sale deed

No.50/1973 of SRO Kozhikode. Subsequently, as per

Sale Deed No.422/2007 of SRO Vythiri one Mr.Densil

Lopus purchased 5.66 Ares, ie., 14 cents of land

comprised in old survey Nos.12,13,14 and Resurvey

No.64/2 of Chundel Village in Vytghiri Taluk from

M/S.Poddar Plantations Ltd. Thereafter, Densil

Lopus effected mutation and tax was being remitted

by him. Subsequently, petitioners jointly purchased

the property covered by Ext.P1 as per Ext.P2 sale

deed No.623/2008 of Vythiri SRO. Thereafter,

mutation was effected in their name and tax was

being paid, as is evident from Ext.P3 tax receipt.

Later on, petitioners constructed a residential

building on the western portion of the property for

which the Panchayath allotted building number also.

Thereafter, petitioners entered into Ext.P4 sale

agreement dated 7.3.2017 with one Noorsha.A.M to

sell a portion of the property covered by Ext.P2

including the residential building. Thereafter,

Ext.P6 sale agreement was executed with the same

person, Noorsha A.M for sale of the remaining

property covered by Ext.P2. Petitioners approached

the 3rd respondent to register the sale deed on the

basis of Exts.P4 and P5 in favour of the purchaser

Mr.Noorsha. The 3rd respondent informed that the

sale deed in respect of the subject property cannot

be registered as the transfer of the property

covered by Ext.P2 has been prohibited by the 2 nd

respondent as per Ext.P6 order issued under Section

120A of the Kerala Land Reforms Act. Petitioners

contend that no prohibition could be imposed as per

Section 120A of the Kerala Land Reforms Act, even

though the land is an exempted land under Chapter

II of the Kerala Land Reforms Act, since the

exempted land continued to be an exempted land even

if it transferred, burdened with qualification of

exemption and the only remedy is to initiate

ceiling proceedings contemplated under Section 84

of the Kerala Land Reforms Act.

3. Petitioners rely on the judgment in Safoora

K.P v. State of Kerala and Others (2018 KHC 490)

and contend that issuance of Ext.P6 fully

prohibiting the transfer of the property covered by

Ext.P2 is absolutely arbitrary and there is no

embargo in transferring the whole or part of the

exempted land. Petitioners also rely on the

judgment in Selvam M and Others v. State of Kerala

and Others (2010(1) KHC 581) in support of their

contentions. This Court in Kinallur Rock Sand v.

State of Kerala and Others (2021 (2) KLT 351) has

held that there is no prohibition in using an

exempted land under Kerala Land Reforms Act for

different purpose and if the land is utilized for

any other purpose, it may fall within once ceiling

area and authorities may be able to initiate

ceiling proceedings but cannot decline the land for

any other purpose. Petitioners further rely on

Devasia R.V and Another v. Sub Registrar Idukki and

others (2015 (1) KHC 805) and contended that though

land is exempted from ceiling limit under the Act,

there is no bar in change of ownership or embargo

on transfer, even with respect to a portion of such

land and the Revenue Officials cannot refuse to

effect mutation of such property purchased by

transferee, however, power of competent authority

to reopen ceiling proceedings to include land

exempted for the purpose of ceiling is not lost on

account of effecting mutation. This Court in Elias

T.V and Others v. Sub Collector, Wayanad and Others

(2019 (2) KHC 881) has held that when an exempted

land under Section 81 of the Kerala Land Reforms

Act is used for the purpose other than for which it

is exempted, the Government would not be justified

in rejecting the request for revenue documents

which is required for using the land for other

purposes till the land is vested with the

Government, after re-determination of ceiling.

This Court in Everest Stone Crusher and Granites

(M/s) v. District Collector, Kannur and Others

(2020 (6) KHC 289) while considering an order under

Section 120A of the Kerala Land Reforms Act, has

elaborated the condition for passing prohibitory

orders and held that before issuing prohibitory

orders under Section 120A, the District Collector

or any other officer authorised by Government has

to satisfy that any particular land is being

transferred in order to defeat the provisions of

the Act, that satisfaction has to be recorded

having regard to the subject of each transfer. A

perusal of Ext.P6 which has issued purportedly

under Section 120A of the KLR Act, does not reveal

that there is independent consideration of each

land and a finding to the effect the transfer of

any particular land is in order to defeat the

provisions of the Act.

4. A counter affidavit has been filed by the 2nd

respondent wherein it is admitted that the land

possessed by the petitioners is an exempted land

under Section 81(e) of the Kerala Land Reforms Act,

1963, and the land owner has no right to convert

the exempted land under Section 81(e) of the Kerala

Land Reforms Act, 1963 without prior permission.

It is further stated that the Taluk Land Board has

taken steps to reopen the ceiling case against the

holders of property and that case is currently

ongoing and the land purchased by the petitioners

are also involved in the said case and in the said

circumstances, Ext.P6 prohibitory order was issued.

5. Heard the learned counsel on both sides.

6. Going by the dictum laid down by this Court

as stated above, before issuing proceedings under

Section 120A of the Kerala Land Reforms Act, the

District Collector or any other officer authorised

by Government has to satisfy that any particular

land is being transferred in order to defeat the

provisions of the Act. Ext.P6 is nature of a

general order, a perusal of Ext.P6 order does not

revealed that the Government or officers authorised

by the Government had subjective satisfaction of

the fact that the transfer of a particular land is

for the purpose of defeating the provisions of the

Kerala Land Reforms Act. Admittedly, the land in

question is an exempted land. Going by the judgment

relied on by the petitioners it is settled that

there is no prohibition in trnsferring an exempted

land and further that there is no such prohibition

in using an exempted land for a different purpose,

and only prohibition is that in case of conversion

of the said land, the competent authority is

entitled to re-open the ceiling proceedings include

land exempted for the purpose of ceiling.

7. In view of the above, I am of the opinion

that the following directions could be issued:

There will be a direction to the 3rd respondent

to execute sale deed, if any, submitted by the

petitioners to transfer that property covered by

Ext.P2 untrammeled by the issuance of Ext.P6 order.

The said order will not stand in the way to the

authorities to initiate proceedings as per the

provisions of the Kerala Land Reforms Act, in case,

the authorities found that there is any violation

of the provisions of the Act.

The writ petition is disposed of as above.

sd/-

VIJU ABRAHAM, JUDGE

pm

APPENDIX OF WP(C) 36057/2023

PETITIONERS' EXHIBITS

Exhibit P1 THE TRUE COPY OF THE SALE DEED NO:

422/2007 OF VYTHIRI SRO

Exhibit P2 THE TRUE COPY OF THE SALE DEED NO:

623/2008 OF VYTHIRI SRO

Exhibit P3 THE TRUE COPY OF THE TAX RECEIPT DATED 19/05/2023 ISSUED BY CHUNDEL VILLAGE OFFICE

Exhibit P4 THE TRUE COPY OF THE SALE AGREEMENT DATED 07/03/2017 EXECUTED BETWEEN THE PETITIONERS AND MR. NOORSHA

Exhibit P5 THE TRUE COPY OF THE SALE AGREEMENT DATED 02/06/2020 EXECUTED BETWEEN THE PETITIONERS AND MR. NOORSHA

Exhibit 6 THE TRUE COPY OF THE ORDER ALONG WITH TABLE OF PROPERTIES DATED 10/11/2016 ISSUED BY 2ND RESPONDENT