Kerala High Court
State Of Kerala Represented By Its ... vs M C George on 1 March, 2023
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
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 W.A.No.102/2022 3 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 W.A.No.102/2022 4 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 W.A.No.102/2022 5 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: W.A.No.102/2022 6
"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) W.A.No.102/2022 7 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." W.A.No.102/2022 8
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 W.A.No.102/2022 9 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 W.A.No.102/2022 10 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 W.A.No.102/2022 11 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 W.A.No.102/2022 12 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 W.A.No.102/2022 13 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. W.A.No.102/2022 14 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 W.A.No.102/2022 15 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 W.A.No.102/2022 16 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 W.A.No.102/2022 17 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.