Roy Sebastian vs Sub Collector, Idukki
2025 Latest Caselaw 3941 Ker

Kerala High Court

Roy Sebastian vs Sub Collector, Idukki on 12 February, 2025

                                          2025:KER:12607
                           1
WP(C) No.1235 of 2013

                                                       CR

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                        PRESENT

          THE HONOURABLE MR. JUSTICE P.M.MANOJ

WEDNESDAY, THE 12TH DAY OF FEBRUARY 2025/23RD MAGHA, 1946

                 WP(C) NO. 1235 OF 2013

PETITIONER:

         ROY SEBASTIAN, AGED 37 YEARS
         KOCHUPURACKAL HOUSE, KANJIKUZHI P.O.,
         IDUKKI DISTRICT.

         BY ADVS.
         SRI.S.VINOD BHAT
         SRI.LEGITH T.KOTTAKKAL



RESPONDENTS:

    1    SUB COLLECTOR, IDUKKI, IDUKKI-685 603.

    2    THE DISTRICT COLLECTOR, IDUKKI-685 603.

    3    TAHSILDAR, THODUPUZHA -685 584

    4    VILLAGE OFFICER, KANJIKUZHI-685 606.

    5    REVENUE DIVISIONAL OFFICER, IDUKKI-685 603.

    6    MARY KURUVILA,D/O.KURUVILA,
         THALAKKANAM, KANJIKUZHY.

    7    JANCY KURUVILA, D/O.KURUVILA,
         THALAKKANAM, KANJIKUZHY.

    8    THE IDUKKI-KANJIKUZHI SERVICE
                                                     2025:KER:12607
                                 2
WP(C) No.1235 of 2013

            CO-OPERATIVE BANK LTD. NO.1-90,
            KANJIKUZHY-685 606.

            BY ADVS.
            SHAIJAN JOSEPH
            SRI.K.MOHANAKANNAN
            SMT.A.R.PRAVITHA



OTHER PRESENT:

            R1 - SRI.S.RENJITH, SPECIAL GOVERNMENT PLEADER


     THIS    WRIT   PETITION    (CIVIL)   HAVING     COME   UP   FOR
ADMISSION    ON   12.02.2025,    THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
                                                     2025:KER:12607
                                 3
WP(C) No.1235 of 2013



                                                                 CR
                           JUDGMENT

Dated this the 12th day of February, 2025

The writ petition is preferred challenging Ext.P5

order of the 1st respondent - the Sub Collector, which revised

the order of the 5th respondent as per Ext.P4, exercising the

powers conferred under Section 6(3) of the Kerala Scheduled

Tribe (Restriction on Transfer of Lands and Restoration of

Alienated Lands) Act, 1975 (for short 'the Act,1975').

2. The petitioner herein is the owner of ten cents of

property in Sy.No.161/1 (Re.Sy.No.204/4) in Block No.46 of

Kanjikuzhi Village as per sale deed No.1753/2008 SRO

Arakulam dated 29.08.2008. The petitioner obtained the

said property from one Baiju M.B., who obtained property

from the 6th respondent as per Ext.P3 dated 23.07.1996.

3. The issue arises when the sister of the 6 th

respondent, Jancy Kuruvila, the 7th respondent herein

approached the 1st respondent under Section 4 and Section

6(3) of the Act, 1975 challenging Ext.P4 order whereby 2025:KER:12607

permission has been granted by the 5 th respondent to the 6th

respondent for alienating ten cents of land belonging to her

in order to settle the liability with the Kanjikuzhi Cooperative

Bank under Rule 31 of the Kerala Scheduled Tribes

(Restriction on Transfer of Lands and Restoration of Alienated

Lands) Rules (for short 'the Rules'). The case projected by

the 7th respondent before the 1st respondent is to restore the

possession and enjoyment to an extent of total 01.23.90

Hectars of land comprised in Sy. No.204/3 and 204/4 of

Kanjikuzhi Village in Thodupuzha Taluk. Such contention was

raised in the premise that Sri.Jose Panamthanam, the

original purchaser of the land from the 6 th respondent

willfully grabbed ten cents of land making a document when

her sister was not in a position to enter into a contract, and

then by way of transfer, the present Thandaper holder, i.e.,

the petitioner herein had purchased the land in question.

4. After hearing the parties and conducting a

detailed enquiry through the Village Officer, Kanjikuzhi, a site

inspection was conducted by the 1 st respondent on

09.11.2012. The petitioner herein was given an opportunity 2025:KER:12607

to adduce evidence. Accordingly, he has produced Ext.P1

whereby he obtained ten cents of land. In support of the

document, he has produced Ext.P4 order whereby permission

was granted to the 6th respondent under Rule 31 of the

Rules to alienate the property. The 1 st respondent ultimately

found that Ext.P4 order cannot sustain as Rule 31 was

omitted as per GO(P) No.794/89/RD dated 12.12.1989

thereby the transfer of land and deed itself are illegal and

liable to be cancelled.

5. The Sub Collector has gone to the history of the

case and found that the father of respondents 6 and 7

Sri.Joseph Kuruvila Eluvumkal obtained patta for the land in

Re.Sy.No.204/3 and 204/4 in Block No.46 of Kanjikuzhi

Village. He was in possession of the said land till his death.

It was also found, his youngest daughter Jancy, the 7 th

respondent herein did not get any land as per the deeds

though she is a traditional occupant of one acre of land.

Respondents 6 and 7 are the absolute owners of the whole

extent of land occupied by their father. The 1 st respondent

went on with a finding that the 6 th respondent was mentally 2025:KER:12607

challenged and has undergone treatment at Nirmala Bhavan

Charitable Society, Nilambur, Malappuram. She was not in a

position to get into any contracts as per Section 12 of the

Indian Contract Act, 1872. The 6 th respondent Mary initially

transferred ten cents to Sri.Jose Panamthanam as per sale

deed No.1920/96. Later he transferred it to Mr.Baiju M.B -

the predecessor-in-interest of the petitioner, and lastly to the

petitioner, who is in possession of the land along with the

building in it currently. The 1st respondent also found that the

order of Revenue Divisional Officer cannot stand, hence, all

the transfers were illegal and was liable to be cancelled as

per the Act and gave directions to the Village Officer to

restore the land admeasuring ten cents in Sy.No.204/4 in

Block No.46 of Kanjikuzhi Village from the petitioner.

6. The petitioner raised three challenges against

Ext.P5, which are: (i) The primary challenge raised against

Ext.P5 is with respect to the authority of the Sub Collector to

revise the order of Revenue Divisional Officer, who is holding

equal powers under the Act, 1975. (ii) Secondly, the

assessment of mental capacity of the 6 th respondent by the 2025:KER:12607

Sub Collector without resorting to any medical evidence

would go to show that the 6 th respondent was not fit to enter

into any contracts as per Section 12 of Indian Contract Act,

1872, being a mentally challenged person at the time of

entering into an agreement in 1996 to the Sale Deed

No.1920/96. (iii) Thirdly, the reason assigned for unsettling

Ext.P4 order is only on the ground that Rule 31 of the Rules

is omitted with effect from 27.02.1990 (date of publication of

Government Order in Kerala Gazette). The said reason is not

sustainable since the very intention of omitting the rule is

inconsistent with Section 4 which is the base on which Rule

31 can sustain as available in the explanatory note to GO(P)

No.794/89/RD dated 12.12.1989.

7. The learned counsel for the petitioner contended

that being a functious officio, the 1st respondent cannot

revise the order of the 5 th respondent, who is holding equal

powers under the Act. Thereby the setting aside of Ext.P4 by

Ext.P5 is beyond his jurisdiction. The 1 st respondent has no

authority to entertain the application preferred by the 7th

respondent under Section 6(3) of the Act, 1975 since, that 2025:KER:12607

Act was repealed and new Act, 1999 has come into force with

effect from 24.01.1986. Moreover, the 7 th respondent has

challenged Exts.P3 and P4 after more than 15 years and

thereby the challenge is barred by limitation.

8. The learned counsel for the petitioner also

contended that only restriction on transfer of land possessed,

enjoyed or owned by a member of Scheduled Tribe on or

after the commencement of this Act, to a person other than a

member of Scheduled Tribe, has to obtain previous consent

of the competent authority in writing. In this case, the 6 th

respondent herself approached the 5th respondent and

obtained an order as per Ext.P4 as contemplated under

Section 4 of the Act. The source of power is provided by the

Act and the procedure and the manner in which an Act is to

be performed is given by the Rules to the Act. Thereby, mere

omission of Rule 31 does not affect the powers vested by

Section 4. Therefore, there is no infirmity with respect to

Ext.P4 though Rule 31 is omitted. The sole issue revolves

around the ten cents of land whereas the intention of the

Legislature while enacting the new enactment as per Act, 2025:KER:12607

1999 is to protect small and marginal non tribal transferees.

Section 5 of the Act brings in invalidation of certain transfers.

The transfer effected by the 6th respondent in favour of the

predecessor-in-interest of the petitioner will not come under

the purview of Section 5.

9. Per contra, the learned counsel for the 7 th

respondent challenged the very maintainability of the writ

petition seeking a prayer of writ of certiorari. The reason

assigned by the learned counsel for the 7 th respondent is that

as per Section 7 (3) and (5) of the Act, there was an

appellate remedy available to the petitioner. Without

resorting to the alternative remedy, he straight away

approached this Court by preferring writ petition under

Article 226 of the Constitution of India.

10. In support of his contentions, the learned

counsel for the 7th respondent brought my attention to the

reported decisions in M/s. Radha Krishan Industries v.

State of Himachal Pradesh and others [AIR 2021 SC

2114], Whirlpool Corporation v. Registrar of Trade

Marks, Mumbai and others, [1998 (8) SCC 1], Abraham 2025:KER:12607

Mathai v. State of Kerala and others, [2024 (7) KHC

493] whereby the learned counsel for the 7 th respondent

stresses on the ratio laid down by the Apex Court in

Whirlpool Corporation's case (supra) which was followed

in the other matters referred above. Following the dictum

laid down in Whirlpool Corporation's case supra, the Apex

Court in Harbanslal Sahnia v. Indian Oil Corporation

Ltd. [(2003) 2 SCC 107] held as follows:

"7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged [See Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 1].

2025:KER:12607

The present case attracts applicability of first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings."

(emphasis supplied)

11. Controverting the contentions by the counsel for

the petitioner with respect to the jurisdiction of the 1 st

respondent in reverting the order passed by the 5 th

respondent, the learned Special Government Pleader

submitted that in cases where it was found that an order is

obtained by playing fraud on the authority, even on a quasi-

judicial authority, is entitled to recall on finding that the

same was obtained by playing fraud on it. In support of his

contentions, the leaned Special Government Pleader brought

my attention to the reported decision in Easwaranunni T.

and others v. State of Kerala and Others [2020 KHC

142]. However, the learned Special Government Pleader

could not point out while obtaining the order by the 6 th 2025:KER:12607

respondent she has played some fraud and obtained an order

in her favour from the 5th respondent.

12. In reply to the contentions by the learned

counsel for the respondents it is submitted by the learned

Counsel for the petitioner that he was not entitled to avail

any alternative remedy as contended by the counsel for the

7th respondent since the appellate remedy as contemplated

under Section 6 of the Act is available to the member of

Scheduled Tribe who was denied the benefit of Section 7 of

the Act. He has also contended on the strength of reported

decision in Commissioner of Income Tax and Others v.

Chhabil Dass Agarwal [2014 (1) SCC 603] and in Utkal

Highways Engineers and Contractors v. Chief General

Manager [2025 KHC 7048] wherein it is specifically held by

the Apex Court that:

"It is the settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate 2025:KER:12607

efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exit sufficient grounds to invoke the extraordinary jurisdiction under Article 226."

13. Similarly, in Utkal Highways Engineers'case

supra it was held that:

"throwing a writ petition on ground of availability of alternative remedy after ten years, particularly, when parties have exchanged their affidavits, is not the correct course unless there are disputed questions of fact which by their very nature cannot be adjudicated upon without recording formal evidence."

14. It is also contended by the learned counsel for

the petitioner that the power exercised by the 1 st respondent

is obviously beyond the jurisdiction because as contended by

the learned Special Government Pleader the quasi judicial

authority who exercised powers under the provisions of the

Act had passed Ext.P4 order on the request made by the 6 th

respondent to meet her exigency. Nowhere the 1 st

respondent found fault with the 6 th respondent that she had

played a fraud on the 5th respondent to obtain an order in her

favour. Moreover, the 1st respondent, while exercising its 2025:KER:12607

jurisdiction, only considered the omitted provisions under the

Rules, i.e., Rule 31. At the same time, it is not bothered to

enter into the legislative intention which is available in the

explanatory note itself in the Government Order which is

relied on by him wherein it is specifically found that the Rule

omitted is inconsistent with the provisions of the Act and that

cannot prevail over the provisions of the Act. Such

explanation given by the legislature is on the basis that

Section 4 of the Act stipulates that previous consent of the

competent authority shall be obtained for transfer of

immovable property by members of Scheduled Tribe.

Whereas for persons other than a member of Scheduled

Tribe, the Act does not specify or lay down such

circumstance. Therefore, any restriction which is imposed by

the Rule will upheld the discretionary power of the competent

authority. Therefore, ignoring the existing provisions of law,

i.e., Section 4, the District Collector invoked his power only

on the basis of an omitted Rule.

15. The other finding by the 1 st respondent with

respect to the mental health of the 6 th respondent is an 2025:KER:12607

unfounded one since he has not expressed anything with

respect to the documents which he relied on to establish that

the 6th respondent was incapacitated by her mental

incapability to enter into a contract under the provisions of

the Indian Contract Act. The 7th respondent, who had raised

the complaint before the 1st respondent, has produced

documents as Exts.R7 (a) to (h) in order to establish that the

6th respondent was mentally challenged. However, none of

the documents would show that the 6 th respondent was

mentally challenged during 1996 since those documents

pertains to the year 2011 onwards. Under such

circumstances, the finding of the 1st respondent with respect

to the mental health of the 6 th respondent is obviously

beyond its jurisdiction.

16. I have heard Sri.S.Vinod Bhat, the learned

counsel for the petitioner, Sri.Shaijan Joseph, the learned

counsel for the 7th respondent and S.Ranjith, the learned

Special Government Pleader for respondents 1 to 5.

17. Having considered the submissions made across

the Bar and perusing the records, it appears that on an 2025:KER:12607

application submitted by the 6th respondent and on the

strength of the certificate issued by the 8 th respondent - the

Co-operative Society after due enquiry as per Reference No.2

in Ext.P4, the 5th respondent exercised its jurisdiction under

Section 4 of the Act. The only error occurred from his part is

with respect to relying on Rule 31 which was omitted prior to

22.07.1996 i.e., on 27.02.1990. On the strength of the said

order, the 6th respondent had cleared her dues towards the

8th respondent Society. Though contra arguments are raised

with respect to misappropriation by the members of the

Society, no substantial evidence was brought before this

Court. Thereafter, two transactions were effected. Last

transaction was between the petitioner and one Mr. Baiju

M.B., who obtained the property from one Jose

Panamthanam, who was firstly assigned by the 6 th

respondent as per sale deed No.1920/96.

18. For the first time the dispute was raised by the

7th respondent by preferring a complaint before the 1 st

respondent; but the date of such complaint is not mentioned

in the impugned order. The order itself states that originally 2025:KER:12607

the father of the 6th and 7th respondents obtained patta for

land in Re.Sy.No.204/3 and 204/4 in Block No.46 of

Kanhikuzhi Village. After the death of mother and father, the

entire property was obtained by the 6th respondent as per

document Nos.1333/90 and 1868/91. Though the 7 th

respondent was residing with them, being the traditional

occupant of 1 acre of land, she was assigned 1 acre of land

by the father. Ext.R7(e) report submitted by the Sub

Collector Perinthalmanna, is an unpleasant report regarding

the 7th respondent, who stated to be the cause of alleged

mental illness of the 6th respondent. Relying on such a

challenge to the mental health now she is trying to utilise the

same to obtain the remaining property owned by the 6 th

respondent. She alleges the grabbing of land by others from

a member of Scheduled Tribe. That itself shows that the

hands of the 7th respondent was not clean while approaching

the 1st respondent.

19. Without properly appreciating the facts and

without adducing the evidences, the 1 st respondent entered

into a finding with respect to the mental health of the 6 th 2025:KER:12607

respondent. That is nothing but beyond the exercise of its

jurisdiction being a quasi judicial authority. Moreover, being

a quasi judicial authority, the 1st respondent is functious

officio; and he cannot exercise the jurisdiction of the Civil

Court to review the order of an authority on the same status

that of the review authority. Though he is taking shelter

under Sec.6(3) of the Act, that was an error occurred from

his part since the Act applicable at the time of passing the

order was Section 7 as per the Act, 1999. That itself shows

the non application of mind.

20. The other part is with respect to taking shelter

on Rule 31 to unsettle Ext.P4, which was omitted by

GO(P)No.794/89/RD dated 12.12.1989, that was given effect

from 27.02.1990. However, the 1 st respondent could not

comprehend the intention of the legislation while omitting

Rule 31 from the Rules. It is pertinent to note that only

because the said provision is inconsistent with the provisions

of the Act, that was omitted by the Government. The

explanatory note to the GO specifies that the parent Act only

stipulates that previous consent of the competent authority 2025:KER:12607

shall be obtained for transfer of immovable property by

members of Scheduled Tribes to a person other than a

member of Scheduled Tribe. The Act does not specify or lay

down the circumstances under which such consent shall be

accorded. Therefore the rule cannot restrict the Act. Here in

the case on hand, the permission was obtained for clearing

the dues to the Co-operative Society by alienating the

property on the application preferred by the 6 th respondent.

Since Rule 31 specifies such provision, merely the omission

of Rule 31 does not prevent the powers vested under Section

4 which does not restrict any particular purpose. Thereby it

appears that the 1st respondent failed to exercise its power in

all respect by reviewing the order passed by a competent

authority on the same rank. Such power is not vested with

such authority unless such orders are obtained by playing

fraud as held in Easwaranunni's case supra.

21. Going by the provisions of Section 6, it appears

that the right to appeal is provided to a person especially

under sub section (5), the appeal power is given to order

under sub section (3) or sub section (2) of Section 5. The 2025:KER:12607

case of the petitioner will not come within the purview of

such sections and no appellate remedy was available to the

petitioner as asserted by the counsel for the 7 th respondent.

Moreover the writ petition was pending before this Court for

more than 12 years. At this juncture, maintainability of the

same cannot be tested. Hence, nothing wrong in entertaining

a writ petition under Article 226 as held in Commissioner of

Income Tax's case supra and Utkal Highways Engineers'

case supra.

In such circumstances, taking into consideration the

afore discussions, I do not find any reason to sustain Ext.P5

order. Hence, Ext.P5 is set aside and the writ petition stands

allowed.

sd/-

P.M.MANOJ JUDGE das 2025:KER:12607

APPENDIX OF WP(C) 1235/2013

PETITIONER'S EXHIBITS

EXHIBIT P1 COPY OF SALE DEED NO.1753/2008 DATED 29.8.2008 EXHIBIT P2 COPY OF CERTIFICATE OF ENCUMBRANCE DATED 15.02.2010 ISSUED BY SRO, ARAKULAM EXHIBIT P3 COPY OF SALE DEED NO.1920/1996 DATED 23.07.1996 EXHIBIT P4 COPY OF PERMISSION GRANTED BY THE RESPONDENT NO.B3-2015/96 DATED 22-7-

EXHIBIT P5 COPY OF ORDER NO.A2-5870/11 DATED 01.01.2013 OF THE 1ST RESPONDENT EXHIBIT P6 COPY OF CERTIFICATE NO.493/12 DATED 03.01.2013 ISSUED BY THE 8TH RESPONDENT EXHIBIT P7 COPY OF BASIC TAX RECEIPT NO.2641628 DATED 7.4.2012 ISSUED BY KANJIKUZHY VILLAGE RESPONDENT EXHIBITS

Exhibit R7(a) TRUE COPY OF THE DOCUMENT FROM SUB COLLECTOR IDUKKI SEEKING ASSISTANCE FROM SUB COLLECTOR PERINTHALMMANNA DATED 25/09/2012

Exhibit R7(b) TRUE COPY OF THIS PETITION SEEKING EASEMENT RIGHT DATED 29/02/2012

Exhibit R7(c) TRUE COPY OF ORDER ON OS. 26/2012 DATED 18/08/2014 OF MUNSIFF COURT IDUKKI

Exhibit R7(d) TRUE COPY OF PETITION FILED BY NIRMAL BAVAN CHARITABLE SOCIETY PRESIDENT MR. RAJU GEORGE DATED 22/01/2012

Exhibit R7(e) TRUE COPY OF THE REPORT PREPARED AND SUBMITTED TO THE SUB COLLECTOR PERINTHALMANNA DATED 27/11/2012 2025:KER:12607

Exhibit R7(f) TRUE COPY OF THE ORDER RESTORING THE LAND FROM ABHAYAGHOSH TO THE RESPONDENT NO.7 DATED 01/01/2013

Exhibit R7(g) TRUE COPY OF THE ORDER RESTORING THE LAND FROM SIBI TO THE RESPONDENT NO.7 DATED 01/01/2013

Exhibit R7(h) TRUE COPY OF THE PETITION FOR RECOGNISING LAND TRANSACTIONS AND GETTING DOCUMENTS WITH REGARD TO THE PROPERTY OBTAINED THROUGH RTI ACT DATED 04/05/2013

Exhibit R7(i) TRUE COPY OF PETITION SUBMITTED BY THE RESPONDENT NO.6 BEFORE THE DISTRICT COLLECTOR OBTAINED THROUGH RTI ACT DATED 10/05/2013

Exhibit R7(j) TRUE COPY OF THE PETITION FILED BEFORE THE DISTRICT PROTECTION OFFICER, IDUKKI DATED 27/11/2015

Exhibit R7(k) TRUE COPY OF THE REPLY OF THE DISTRICT PROTECTION OFFICER, MALAPPURAM DATED 14/06/2016

Exhibit R7(l) TRUE COPY OF THE POWER OF ATTORNEY CREATED BY RAJU GEORGE ON BEHALF OF RESPONDENT NO.6

Exhibit R7(m) TRUE COPY OF THE JUDGMENT DATED 8/3/2018 IN OS.NO. 72/2016 OF MUNSIFF COURT IDUKKI