Kerala High Court
T.S.Kaladharan vs District Collector on 18 December, 2020
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942
W.P.(C)No.26375 OF 2020(V)
PETITIONER/S:
T.S.KALADHARAN,
S/O. SREEDHARAN PILLAI,
THAMARAPPALLIL HOUSE,
KARTHIKAPPALLY,
THRIKKUNNAPUZHA,
PALLIPAATTU,
ALAPPUZHA-690516,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
JINU JOHN,
AGED 39 YEARS,
S/O. MR. JOHN,
THARAPPEL (NELLIKKATTIL),
UZHAVOOR EAST P.O.,
KOTTAYAM-686634.
BY ADVS.
SRI.JOY THATTIL ITTOOP
SRI.BIJISH B.TOM
SRI.JACOB TOMLIN VARGHESE
SMT.BABY SONIA
SRI.GENS GEORGE ELAVINAMANNIL
RESPONDENT/S:
DISTRICT COLLECTOR,
ALAPPUZHA DISTRICT,
1ST FLOOR,
COLLECTORATE,
CIVIL STATION,
ALAPPUZHA-688001.
OTHER PRESENT:
SRI JESTIN MATHEW-GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.26375 OF 2020(V)
2
JUDGMENT
The petitioner, who is stated to be the Managing Director of M/s.Console Shipping Services India Pvt. Ltd., has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondent District Collector to suspend Ext.P2 prohibitory order insofar as it relates to 156.06 ares (3.86 acres) of land comprised in Re.Sy.Nos.230/21, 230/20, 230/22, 201/1/9, 230/6, 230/23, 230/17, 201/1/10, 230/10, 230/11-2, 230/12, 230/18-2, 230/19-2 of Arattupuzha Village, Karthikappally Taluk, which is the property mortgaged for availing cash credit facility to M/s.Console Shipping Services India Pvt. Ltd., from Federal Bank, Chembur Branch, Mumbai. The petitioner has also sought for a writ of mandamus commanding the respondent to consider Ext.P10 representation dated 17.10.2020 and Ext.P11 representation dated 16.11.2020 and pass orders thereon, after hearing the petitioner, within a time period fixed by this Court.
2. On 30.11.2020, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for the respondent and sought time to get instructions.
W.P.(C)No.26375 OF 2020(V) 3
3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondent.
4. The petitioner is seeking suspension of Ext.P2 prohibitory order issued by the respondent District Collector insofar as it relates to 156.06 ares (3.86 acres) of land comprised in the aforesaid re survey numbers, the property stated to have been mortgaged for availing cash credit facility to M/s.Console Shipping Services India Pvt. Ltd., from Federal Bank, Chembur Branch, Mumbai.
5. The document marked as Ext.P1 is a copy of the sanction letter dated 23.09.2020 issued by the Federal Bank, Chembur Branch to M/s.Console Shipping Services India Pvt. Ltd., sanctioning cash credit facility to the tune of Rs.550 lakhs. The petitioner and his wife Devika Kaladharan are co-obligants in the cash credit facility availed by the said company, in which 3.86 acres of land is offered as collateral security. Though it is averred in paragraph 2 of the writ petition that Ext.P1 sanction letter is one issued in connection with renewal and enhancement of the cash credit facility availed by the company in the year 2009, the said fact is not discernible from Ext.P1.
W.P.(C)No.26375 OF 2020(V) 4
6. By Ext.P3 proceedings dated 05.03.2018, the State Land Board accorded sanction to the Chairman of the Taluk Land Board, Karthikappally, to initiate suo motu proceedings against the petitioner and his wife Devika Kaladharan, under Section 87 of the Kerala Land Reforms Act, for holding 8.14.97 hectors of land in various villages in Karthikappally Taluk. A copy of Ext.P3 proceedings was marked to the respondent District Collector and also the Tahsildar, Karthikappally. Taking note of Ext.P3 order of the State Land Board and also the report of the Tahsildar, Karthikappally, the respondent District Collector, in exercise of his powers under Section 120A of the Kerala Land Reforms Act, issued Ext.P2 prohibitory order to the Sub Registrar, Harippad, in respect of 8.14.97 hectors of land owned by the petitioner and his wife Devika Kaladharan in various villages in Karthikappally Taluk, including 3.86 acres of land, which is the subject matter of this writ petition.
7. Section 101 of the Kerala Land Reforms Act deals with powers of the Land Board and the Land Tribunal. As per sub- section (4) of Section 101, if any question arises as to whether any land is exempted under Section 81, the question shall be decided W.P.(C)No.26375 OF 2020(V) 5 by the Land Board or the Taluk Land Board, as the case may be in such manner and having regard to such matters as may be prescribed, and the decision of the Land Board or the Taluk Land Board shall be final. Section 103 of the Act deals with revision by High Court. As per sub-section (1) of Section 103, any person aggrieved by any final order passed in an appeal against the order of the Land Tribunal or; any final order passed by the Land Board under this Act or; any final order of the Taluk Land Board under this Act, may, within such time as may be prescribed, prefer a petition to the High Court against the order on the ground that the appellate authority or the Land Board, or the Taluk Land Board, as the case may be, has either decided erroneously, or failed to decide, any question of law.
8. Section 120A of the Act provides that registering officer not to register in certain cases. As per Section 120A, which starts with a non-obstante clause, notwithstanding anything contained in the Registration Act, 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 W.P.(C)No.26375 OF 2020(V) 6 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.
9. In Devassia R.V. v. Sub Registrar, Idukki [2015 (1) KHC 805] this Court was dealing with a batch of writ petitions filed either by the owner of the exempted land or by the purchaser of the land from exempted land owners under the Kerala Land Reforms Act, when the Revenue Officials refused to effect mutation in respect of the land alleging violation of the said Act. In some cases, the registering authority insisted for no-objection certificate for the purpose of registration of the document involving exempted land. Before this Court, it was contended by the learned Special Government Pleader, with reference to Section 87 and Section 120A of the Act, that the authorities have sufficient power to take appropriate action to prevent fragmentation and conversion of the land to defeat the very objectives of the Act.
10. In Devassia R.V. this Court noticed that, Explanation (I) to sub-section (1) of Section 87 of the Kerala Land Reforms Act W.P.(C)No.26375 OF 2020(V) 7 clearly indicates that, once land which is exempted loses its character which qualifies for exemption, such land shall be deemed as a land acquired after the date notified under Section 83 of the Act. Therefore, any land as a whole or in part, which is converted into any other class of land, which is not specified for exemption, shall be deemed to be land acquired after the date notified under Section 83 of the Act. This provision abundantly makes it clear that exempted land once it is converted would be reckoned for calculating total ceiling area of the person who held the land as on 01.01.1970.
11. In Devassia R.V. this Court noticed that, on promulgation of the Kerala Land Reforms Act, the entire landed property in the State is subjected to State control as envisaged under the provisions of the said Act. No piece of the land escapes the clutches of the Act including exempted land for ceiling purposes. The ceiling proceedings is a continuing proceedings and can be reopened in any of the circumstances, if so warranted, as contemplated under Section 87 of the Act. Exemption granted from ceiling is the qualification to use the land in a particular manner, which means a burden is imposed on the land. The moment the W.P.(C)No.26375 OF 2020(V) 8 qualification for exemption is vanished by conversion of the land, the protection from ceiling will also be extinguished to bring the land within the fold of the ceiling area. The exemption is in the nature of a burden on the land to use the land for the purpose for which exemption is granted. The eminent domain power of the State can be exercised for acquiring land without consent and also to regulate the use of land in public interest. The eminent domain is power inherent in any Sovereign State. This burden would bind the holder of the land as on 01.01.1970 and the successor-in- interest. The Division Bench of this Court in State Human Rights Protection Centre, Thrissur v. State of Kerala [ILR (2009) 3 Ker 695] held that exemption granted under Section 81(1)(a) of the Kerala Land Reforms Act is for the land and would continue to operate irrespective of change of ownership of the exempted land and the transferee would have to use the land for the purpose for which exemption is granted.
12. In Devassia R.V. this Court noticed that, the provisions of the Kerala Land Reforms Act do not place any embargo on transfer. The transfer of registry is for fiscal purposes. The power of the competent authority to reopen the ceiling proceedings to W.P.(C)No.26375 OF 2020(V) 9 include the land exempted for the purpose of ceiling is not lost on account of effecting mutation. Therefore, the Revenue Officials cannot refuse to effect mutation of the property purchased by the transferee.
13. In Devassia R.V., the learned Special Government Pleader submitted that, in view of the provision of the Tea Act, 1953 and Section 120A of the Kerala Land Reforms Act, the registering authority can refuse to register the land which is subject matter of exemption without no-objection certificate. This Court found no provisions in the Tea Act, 1953 to restrict the right of alienation. This Court noticed that, Section 120A of the Kerala Land Reforms Act enables the registering authority to refuse to register the document based on the information provided by the competent authority of the Government on the ground that registration would defeat the provisions of the said Act. Relying on the said provision, the submission made by the learned Special Government Pleader was that the registering authority, therefore, is justified in refusing to register the document involving exempted land without no-objection certificate from the District Collector or from the competent authority. This Court held that Section 120A of W.P.(C)No.26375 OF 2020(V) 10 the Act is an enabling provision. It is not a prerequisite for registration of any document. The District Collector or any other officer authorised by the Government has to satisfy that any particular land is being transferred in order to defeat the provisions of the Act. Therefore, satisfaction has to be done having regard to subject of each transfer. On the facts of the cases on hand, this Court noticed that, there is no record before this Court to show that in any of the writ petitions a decision has been taken by the District Collector or by the authorised officer under the Government that the particular transaction intends to defeat the provisions of the Act. As afore-noted, there is no embargo in transferring whole or part of the exempted land.
14. In M/s. Everest Stone Crusher and Granites v. District Collector, Kannur and others [2020 (6) KHC 289] this Court held that, a reading of the provisions under Section 120A of the Kerala Land Reforms Act make it explicitly clear that, in case the District Collector or any other officer authorised by the Government in this behalf has reasonable grounds to believe that any document relating to transfer of land which may be presented before a registering officer is intended to defeat the provisions of W.P.(C)No.26375 OF 2020(V) 11 the said Act, he may inform such registering officer not to 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 the said Act.
15. In Safoora K.P. v. State of Kerala [(2018) 3 KLJ 772] this Court was dealing with a case in which, the writ petitioner was having ownership and possession of 4.86 ares of land covered by Ext.P1 sale deed dated 08.10.2015 of the Sub Registrar Office, Taliparamba. Mutation has been effected in the name of the petitioner as evidenced by Ext.P2 and land tax has also been collected from the petitioner. Going by the averments in the writ petition, years back, transfer of about 439.74 ares of property, including the property now owned by the writ petitioner, was kept in abeyance by respondents 1 to 3 purportedly under the provisions of the Kerala Land Reforms Act. However, subsequently, the Taluk Land Board had permitted piecemeal transactions with respect to those properties through an order dated 30.11.1994. Under the benefit of such order, the writ petitioner had purchased the properties covered by Ext.P1 sale deed. The grievance of the writ petitioner was that, the Sub Registrar, Taliparamba, is refusing W.P.(C)No.26375 OF 2020(V) 12 to register the sale deed with respect to the properties referred to above and consequently, she is unable to sell the property covered by Ext. P1 sale deed.
16. In Safoora K.P., the learned counsel for the writ petitioner relied on the decision of a Division Bench of this Court in Selvam v. State of Kerala [2010 (1) KHC 581] in which, in the context of Section 17 of the Registration Act, 1908 and Rule 67 of the Kerala Registration Rules, the Division Bench held that, the powers sought to be exercised by the revenue officials by directing the registering officers not to register a document in Udumbanchola and Devikulam Taluks, particularly, in Chinnakkanal Village and Munnar area, in the absence of no-objection certificate, is prima facie arbitrary, illegal and without any sanction of law. So long as the provisions contained in the Registration Act do not give any power or authority to the revenue officials to meddle with the power vested with the registering authority under the Act, the action of the revenue officials cannot be countenanced or justified. However, the Division Bench has made it clear that the revenue officials will be at liberty to proceed against the property, which is sought to be transferred by the 1st appellant in favour of 2nd and 3rd W.P.(C)No.26375 OF 2020(V) 13 appellants, if it is found that the said land belongs to the Government or that the patta allegedly obtained by the 1 st appellant in respect of the said property is bogus.
17. In Safoora K.P., this Court noticed that, the law laid down by the Division Bench may not be applicable in all cases, especially in view of the amendment that was subsequently made to the provisions of the Registration Act, whereby sub-section (3) of Section 71 of the Act was introduced with effect from 13.09.2013, which provides that, no registering officer shall accept for registration any document involving transfer of property including contract for sale of immovable property belonging to or vested in the Government of Kerala or public sector undertakings operating in the State or local self Government institutions unless it is accompanied by a no-objection certificate issued by an officer authorised by the State Government in this behalf.
18. In Safoora K.P., dealing with the contention raised by the learned Senior Government Pleader, relying on Section 120A of the Kerala Land Reforms Act, this Court reiterated that, as held in Devassia [2015 (1) KHC 805], Section 120A of the Act is an enabling provision and it is not a prerequisite for registration of any W.P.(C)No.26375 OF 2020(V) 14 document and that, the District Collector or any other officer authorised by the Government, has to satisfy based on materials that, any particular land is being transferred in order to defeat the provisions of the Act. Such satisfaction has to be arrived at by the competent authority concerned having regard to the subject of each transfer. As there was no record before this Court in that case that there was such satisfaction either on the part of the District Collector or by the officer authorised by the Government that the impugned transaction was intended to defeat the provisions of the Kerala Land Reforms Act, this Court held that resort to Section 120A of the Act cannot be the legal basis for denying the registration. In Safoora K.P., on the facts of that case, this Court found that, indisputably, the competent authority concerned including the District Collector or any other officer authorised by the Government in that regard, do not have any case that they have adequate materials on the basis of which, they have arrived at a conclusion that the present transfer sought to be made by the writ petitioner is intended to defeat the provisions of the Kerala Land Reforms Act. Therefore, reliance placed on Section 120A of W.P.(C)No.26375 OF 2020(V) 15 the Act also cannot be the legal basis for denying the plea for registration in the instant case as well.
19. In M/s. Everest Stone Crusher and Granites [2020 (6) KHC 289] this Court noticed that, the law laid down by this Court in Devassia R.V. and reiterated in Safoora K.P. is that, before issuing prohibitory orders under Section 120A of the Kerala Land Reforms Act, the District Collector or any other officer authorised by the 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. As already noticed, no prohibitory order issued by the District Collector or any other officer authorised by the Government, invoking the provisions under Section 120A of the Kerala Land Reforms Act, was under challenge in Devassia R.V. and the writ petitions were filed when the Revenue Officials refused to effect mutation in respect of the land alleging violation of the Kerala Land Reforms Act, and in some cases, the registering authority insisted for no-objection certificate for the purpose of registration of the document involving exempted land. Similarly, no prohibitory order issued under Section 120A of the Act, was under
W.P.(C)No.26375 OF 2020(V) 16 challenge in Safoora K.P., and the grievance of the writ petitioner was that the Sub Registrar, Taliparamba, is refusing to register the sale deed with respect to the property covered by Ext.P1 and consequently, she is unable to sell that property.
20. In the instant case, as already noticed, Ext.P2 prohibitory order issued by the respondent District Collector, in exercise of his powers under Section 120A of the Kerala Land Reforms Act, is one issued after taking note of Ext.P3 order of the State Land Board and also the report of the Tahsildar, Karthikappally. Based on Ext.P3 proceedings of the State Land Board, suo motu proceedings under Section 87 of the Kerala Land Reforms Act has already been initiated against the petitioner and his wife Devika Kaladharan, by the Chairman of Taluk Land Board Karthikappally, for holding 8.14.97 hectors of land in various villages in Karthikappally Taluk. A prohibitory order under Section 120A of the Kerala Land Reforms Act is issued 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 W.P.(C)No.26375 OF 2020(V) 17 is intended to defeat the provisions of the said Act. Therefore, Ext.P2 prohibitory order issued by the respondent District Collector, in exercise of his powers under Section 120A of the Kerala Land Reforms Act, cannot be termed as one issued absolutely without any authority of law.
21. During the course of argument, the learned Government Pleader would would point out that in the suo motu proceedings initiated under Section 87 of the Kerala Land Reforms Act the petitioner and his wife are already been issued with a notice requiring them to appear before the Taluk Land Board, Karthikappally, on 05.01.2021.
22. The learned counsel for the petitioner would submit that the petitioner and his wife have already received a notice issued by the Taluk Land Board, dated 17.12.2020. The learned counsel would point out that, Ext.P10 representation dated 17.10.2020 and Ext.P11 representation dated 16.11.2020 made by the petitioners seeking an order to suspend Ext.P2 prohibitory order insofar as it relates to 156.06 ares (3.86 acres) of land mortgaged for availing cash credit facility to M/s.Console Shipping Services India Pvt. Ltd., from Federal Bank, Chembur Branch, Mumbai, are pending W.P.(C)No.26375 OF 2020(V) 18 consideration before the respondent District Collector, which may be directed to be considered within a time limit to be fixed by this Court. Going by the averments in Ext.P11 representation, in September, 2020, for working capital requirements, the company availed an overdraft facility for Rs.550 lakhs from the Federal Bank, Chembur Branch by mortgaging the aforesaid 156.06 ares (3.86 acres) of land.
23. Since P10 and P11 representations made by the petitioner along with his wife, with a request to lift Ext.P2 prohibitory order issued under Section 120A of Kerala Land Reforms Act, insofar as it relates to 156.06 ares (3.86 acres) of land mortgaged for availing cash credit facility to M/s.Console Shipping Services India Pvt. Ltd., from Federal Bank, Chembur Branch, Mumbai, are pending consideration before the respondent District Collector, this writ petition is disposed of by directing the respondent to take an appropriate decision on those representations, with notice to the petitioner and his wife, and after affording them an opportunity of being heard, as expeditiously as possible, at any rate, within a period of four weeks from the date of receipt of a certified copy of this judgment.
W.P.(C)No.26375 OF 2020(V) 19
24. In State of U.P. v. Harish Chandra [(1996) 9 SCC 309] the Apex Court held that no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. In Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law.
Therefore, direction contained in this judgment to consider and to take an appropriate decision on Exts.P10 and P11 representations is a direction to the respondent District Collector to take an appropriate decision on those representations, strictly in accordance with law, taking note of the facts and circumstances of the case, the relevant statutory provisions and also the law laid down hereinbefore.
No order as to costs.
Sd/-
ANIL K. NARENDRAN JUDGE MIN W.P.(C)No.26375 OF 2020(V) 20 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SANCTION-LETTER DATED 23/09/2020, ISSUED BY THE FEDERAL BANK, CHEMBUR BRANCH, MUMBAI, TO THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 31/07/2018, PASSED BY THE RESPONDENT TO THE SUB REGISTRAR FOR HARIPPAD, CHEPPAD AND KEERIKKAD.
EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS DATED
05/03/2018, OF THE STATE LAND BOARD.
EXHIBIT P4 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
DATED 31/01/2019 BY THE SUB REGISTRAR,
KEERIKKAD TO THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE UNDERTAKING SUBMITTED BY
THE PETITIONER'S COMPANY TO THE FEDERAL
BANK.
EXHIBIT P6 TRUE COPY OF THE EMAIL DATED 05/11/2020,
SENT BY THE PETITIONER'S BANKER TO THE
PETITIONER'S COMPANY.
EXHIBIT P7 TRUE COPY OF THE EMAIL DATED 17/11/2020
ISSUED BY THE PETITIONER'S BANKER TO THE
PETITIONER'S COMPANY.
EXHIBIT P8 TRUE COPY OF THE EMAIL DATED 17/11/2020
ISSUED BY THE PETITIONER'S COMPANY TO THE
PETITIONER'S BANKER.
EXHIBIT P9 TRUE COPY OF THE EMAIL DATED 19/11/2020,
ISSUED BY THE PETITIONER'S BANKER TO THE
PETITIONER'S COMPANY.
EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED
17/10/2020 SUBMITTED BY THE PETITIONER'S
COMPANY TO THE RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER AND HIS WIFE, BY EMAIL
DATED 18/11/2020, TO THE RESPONDENT