Kerala High Court
Paul George vs The District Collector, Palakkad on 13 September, 2024
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W.P.(C) No.1020 of 2017 and con.cases
2024:KER:69880
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE HARISANKAR V. MENON
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
WP(C) NO.1020 OF 2017
PETITIONERS:
*1 SHAJU, AGED 53 YEARS,
S/O.THOMAS, CHAMMANIKODATH HOUSE, SHOLAYUR,
MANNARKKAD TALUK, PALAKKAD DISTRICT.(EXPIRED)
ADDL.P2 LALY SHAJU, AGED 59 YEARS,
W/O.(LATE) SHAJU THOMAS, CHAMMANIKODATH HOUSE,
PULINCHODE, ALUVA, ERNAKULAM-683 101.
ADDL.P3 THOMAS SHAJU, S/O.(LATE) SHAJU THOMAS,
CHAMMANIKODATH HOUSE, PULINCHODE, ALUVA,
ERNAKULAM - 683 101.
ADDL.P4 NEETHY SHAJU, AGED 33 YEARS,
D/O.(LATE) SHAJU THOMAS, CHAMMANIKODATH HOUSE,
PULINCHODE, ALUVA, ERNAKULAM -683 101.
(ADDL P2 TO P4 ARE IMPLEADED AS PER ORDER DATED
16-02-2024 IN IA 1/2024 IN WP(C)1020/17)
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY SECRETARY TO
GOVERNMENT, REVENUE DEPARTMENT,
THIRUVANANTHAPURAM-695001.
2 THE DISTRICT COLLECTOR,
PALAKKAD-678001.
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3 THE TAHSILDAR, MANNARKKAD,
PALAKKAD DISTRICT-679582.
4 THE VILLAGE OFFICER,
SHOLAYUR, PALAKKAD DISTRICT-679582.
5 REVENUE DIVISIONAL OFFICER,
OTTAPALAM, PALAKKAD DISTRICT-678101.
6 VAZHA, S/O.MARUTHAN, KOOTHADICHALLA,
SHOLAYUR, PALAKKAD DISTRICT-679582.
7 MARIMOOPPAN, KOOTHADICHALLA, SHOLAYUR,
PALAKKAD DISTRICT-678582.
BY GOVERNMENT PLEADER, SMT.SUNY K.B.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.08.2024,
ALONG WITH WP(C) NO.1949/2017 AND CONNECTED CASES, THE COURT ON
13.09.2024 DELIVERED THE FOLLOWING:
3
W.P.(C) No.1020 of 2017 and con.cases
2024:KER:69880
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
WP(C) NO.1949 OF 2017
PETITIONER:
PAUL GEORGE, AGED 49 YEARS,
S/O.GEORGE, NILATHUMMUKKIL HOUSE, SHOLAYUR VILLAGE,
MANNARKKAD TALUK, PALAKKAD DISTRICT.
BY ADVS.
SRI.P.RAVINDRAN (SR.)
SRI.SREEDHAR RAVINDRAN
RESPONDENTS:
1 THE DISTRICT COLLECTOR,
PALAKKAD-678001.
2 THE SUB COLLECTOR,
OTTAPALAM-678515.
3 MARUTHAN, S/O.MARIMOOPPAN, KOOTHADICHALA,
SHOLAYUR-678581.
4 RAMAN, S/O.MARIMOOPPAN, KOOTHADICHALA,
SHOLAYUR-678581.
5 RAMI, W/O.VAZHA MOOPPAN, KOOTHADICHALA,
SHOLAYUR-678581.
6 MARUTHI, D/O.VAZHA MOOPPAN, KOOTHADICHALA,
SHOLAYUR-678581.
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7 LAKSHMI, D/O.VAZHA MOOPPAN, KOOTHADICHALA,
SHOLAYUR-678581.
8 SELVI, D/O.VAZHA MOOPPAN, KOOTHADICHALA,
SHOLAYUR-678581.
BY GOVERNMENT PLEADER, SMT.SUNY K.B.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.08.2024,
ALONG WITH WP(C).1020/2017 AND CONNECTED CASES, THE COURT ON
13.09.2024 DELIVERED THE FOLLOWING:
5
W.P.(C) No.1020 of 2017 and con.cases
2024:KER:69880
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
WP(C) NO. 19141 OF 2018
PETITIONERS:
1 K.KUNJUMON, 51 YEARS, S/O.JOSE TC THEKKAN HOUSE,
MELUR P.O., MELUR VILLAGE, MUKUNDAPURAM TALUK,
THRICHUR-680311.
2 DEVASSY KUTTY, 72 YEARS, S/O.OUSEPH, CHATHELI HOUSE,
CHATTIKULAM, KODASERY VILLAGE, MUKUNDAPURAM TALUK
TRICHUR-680725.
BY ADV SRI.U.BALAGANGADHARAN
RESPONDENTS:
1 THE DISTRICT COLLECTOR,
CIVIL STATION, PALAKKAD-678001.
2 THE REVENUE DIVISIONAL OFFICER
OTTAPALAM-679 101.
3 THE TAHSILDAR, MANNARGHAT TALUK,
MANNARGHAT, PALAKKAD-678582.
4 THE VILLAGE OFFICER,
SHOLAYUR VILLAGE, AGALI,
PALAKKAD-678581.
BY GOVERNMENT PLEADER, SMT.SUNY K.B.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.08.2024,
ALONG WITH WP(C)NO.1020/2017 AND CONNECTED CASES, THE COURT ON
13.09.2024 DELIVERED THE FOLLOWING:
6
W.P.(C) No.1020 of 2017 and con.cases
2024:KER:69880
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
WP(C) NO. 3467 OF 2017
PETITIONERS:
1 K. KUNJUMON, 51 YEARS, S/O. JOSE T.C.,
THEKKAN HOUSE, MELUR P.O., MELUR VILLAGE,
MUKUNDAPURAM TALUK, TRICHUR-680 311.
*2 DEVASSY KUTTY, 72 YEARS, S/O.OUSEPH, CHATHELI HOUSE,
CHATTIKULAM, KODASERY VILLAGE, MUKUNDAPURAM TALUK,
TRICHUR-680 725.(DIED)
ADDL.P3 SHAJI C.D., AGED 45 YEARS,
S/O.DEVASSY KUTTY, CHATHELI HOUSE, KODASERRY P.O.,
CHALAKUDY, THRISSUR-680 311.
(REPRESENTED BY POWER OF ATTORNEY HOLDER, K.KUNJUMON,
AGED 54 YEARS, S/O.JOSE T.C., THEKKAN HOUSE, MELUR P.O.,
MELUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR-680 0311.
(IS IMPLEADED AS PER ORDER DATED 08-12-2020 IN IA
1/2020).
BY ADV SRI.U.BALAGANGADHARAN
RESPONDENTS:
1 THE STATE, REPRESENTED BY PRINCIPAL SECRETARY,
REVENUE DEPARTMENT,SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE DISTRICT COLLECTOR,
CIVIL STATION, PALAKKAD-678 001.
3 THE REVENUE DIVISIONAL OFFICER,
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W.P.(C) No.1020 of 2017 and con.cases
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OTTAPALAM, PALAKKAD-679 101.
4 MARI MOOPPAN, KUTHADICHALA URU, SHOLAYUR,
SHOLAYUR POST, MANARKKAD, PALAKKAD - 678 581.
5 RAMI, W/O.VAZHA MOOPPAN, KUTHADICHALA URU, SHOLAYUR,
SHOLAYUR POST, MANARKKAD, PALAKKAD - 678 581.
6 MARUTHI, D/O.VAZHA MOOPPAN, KUTHADICHALA URU,
SHOLAYUR, SHOLAYUR POST, MANARKKAD, PALAKKAD - 678 581.
7 LAKSHMI, D/O.VAZHA MOOPPAN, KUTHADICHALA URU,
SHOLAYUR, SHOLAYUR POST, MANARKKAD, PALAKKAD - 678 581.
8 SELVI, D/O.VAZHA MOOPPAN, KUTHADICHALA URU, SHOLAYUR,
SHOLAYUR POST, MANARKKAD, PALAKKAD - 678 581.
BY GOVERNMENT PLEADER, SMT.SUNY K.B.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.08.2024,
ALONG WITH WP(C).1020/2017 AND CONNECTED CASES, THE COURT ON
13.09.2024 DELIVERED THE FOLLOWING:
8
W.P.(C) No.1020 of 2017 and con.cases
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"C.R."
JUDGMENT
[WP(C) Nos.1020/2017, 1949/2017, 19141/2018, 3467/2017] These four writ petitions pertain to the dispute as regards certain properties, which allegedly attract the provisions under the Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (hereinafter referred to as 'Act 31 of 1975') as well as the provisions under the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999 (hereinafter referred to as the 'Act 12 of 1999').
2. The short facts necessary for the disposal of these writ petitions, as culled out from W.P(C) No.1949 of 2017 are as under:
Vast extents of land were held by Mannarkkad Mooppil Nair in Jenm right. M/s. P.C. George, P.C. Mathew, P.C. Abraham and P.C. Thomas (hereinafter referred to as 'P.C. brothers') obtained tenancy rights and possession over some of the properties originally held by Mannarkkad Mooppil Nair. The properties so obtained by P.C. brothers were falling under Survey No.913/1 of Sholayur Village. P.C. brothers obtained purchase certificates as regards the properties 9 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 aforementioned separately, which devolved on their legal heirs upon their death. Sri.Paul George (the petitioner in W.P(C) No.1949 of 2017 and Sri.Shaju (petitioner in W.P(C) No.1020 of 2017) purchased the afore properties from the legal heirs of M/s. P.C. George and others during the year 1995. On 28.04.1995, Ext.P3, a partition deed was entered into among the petitioners, Sri. Paul George and Sri. Shaju and they took possession of the separate lands earmarked for each other. The partition deed at Ext.P3, is also with reference to the properties falling under Survey No.913/1 of Sholayur Village, Mannarkkad Taluk.
3. One Sri.Marimooppan and Sri.Vazha (hereinafter referred to as 'applicants') presented applications before the Revenue Divisional Officer under the provisions of Act 31 of 1975, essentially pointing out that the properties held by the petitioners in W.P(C) No.1949 of 2017 and W.P(C) No.1020 of 2017, Paul George and Shaju respectively, were originally in their possession and therefore, they are entitled to restoration of the possession since P.C. brothers had forcefully taken possession of such properties from them. Copies of such applications are produced as Exts.P4 and P5 respectively. The 10 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 said applications stood numbered as TLA Nos.2058/1987 and 2059/1987. In the meantime, Act 31 of 1975 stood repealed by Act 12 of 1999.
4. The 2nd respondent issued Ext.P6 order on Exts.P4 and P5 applications holding that the properties were originally in the possession of the applicants and therefore, hit by the provisions of Act 12 of 1999. The said order was challenged by filing an appeal before the 1st respondent herein by the petitioner.
5. The 1st respondent issued Ext.P8 order finding that:
i. The applicants in their applications had not noted any survey numbers as regards the property concerned. ii. The report submitted by the Village Officer, Sholayur shows that in Survey No.913/2, the property concerned is having an extent of 20 acres, whereas reference to the A and B register discloses that as against Survey No.913/2, the extent was only 3.35 hectares.
iii. In the statement given by Marimooppan before the Revenue Divisional Officer, Ottapallam on 16.11.2010, 11 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 the survey number mentioned is 917/1; that too as against 10 acres of property.
iv. The Taluk surveyor has reported that the applicants were claiming the properties falling under the Survey No.913/1 which is in possession of Sri.Shaji, S/o.Thomas and Paul George, S/o.George. v. The claim presented by the applicants does not mention about the properties held by K.Kunjumon. vi. Philip does not hold any property in the afore survey numbers.
On account of the above reasons, Ext.P6 order of the 2 nd respondent stood set aside and the matter was remanded for reconsideration at the hands of the 2nd respondent.
6. The 2nd respondent, thereafter, issued Ext.P9 order, essentially arriving at the same findings as in Ext.P6. The further appeal at Ext.P10 by the petitioner stood rejected at the hands of the 1st respondent by Ext.P11. It is in the above circumstances, W.P(C) No.1949 of 2017 is filed.
12W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880
7. Shaju, who is one of the signatories in Ext.P3 produced along with W.P(C) No.1949 of 2017 referred to above, has been in possession of some properties obtained by him in the above manner and pursuant to the partition at Ext.P3. Therefore, Shaju filed W.P(C) No.1020 of 2017 when he was faced with the same proceedings mentioned in W.P(C) No.1949 of 2017. The prayer in W.P(C) No.1020 of 2017 is to quash Ext.P6 order issued by the 5th respondent (same as Ext.P9 in W.P(C) No.1949 of 2017) and also Ext.P9 order issued by the 2nd respondent (same as Ext.P11 in W.P(C) No.1949 of 2017).
8. W.P(C) No.3467 of 2017 is filed by an assignee who obtained the properties pursuant to Exts.P1 to P3 documents which were executed by the legal heirs of the assignees from P.C. brothers. The challenge in W.P(C) No.3467 of 2016 is against Ext.P9 issued by the 2nd respondent (same as Ext.P11 in W.P(C) No.1949 of 2017).
9. W.P(C) No.19141 of 2018 was filed by the petitioner in W.P(C) No.3467 of 2017 complaining about the refusal to accept basic tax on the land on account of the proceedings challenged in the former writ petitions.
13W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880
10. Separate counter-affidavits have been filed in the respective writ petitions. In WP(C) No.1020 of 2017, a counter affidavit has been filed by the 2nd respondent, contending that no documents were produced in support of various claims made as regards the possession of the property at the hands of P.C. brothers and therefore, P.C. brothers can only be considered as encroachers, having no actual right over the property.
11. A reply affidavit is also filed by the petitioner in W.P(C) No.1020 of 2017, relying on Ext.P11 report of the Special Survey Team, Mannarkkad, wherein, the properties in Survey No.913/1 and the properties claimed by the applicants have been separately marked.
12. I have heard Sri. P. Ravindran, the learned senior counsel for the petitioner in W.P.(C) No.1949 of 2017, Sri. K. Mohanakannan, the learned counsel for the petitioner in W.P.(C) No.1020 of 2017 and Sri.U.Balagangadharan, the learned counsel for the petitioner in W.P(C) Nos.3467 of 2017 and 19141 of 2018 as also the learned Government Pleader.
13. Sri.P. Ravindran, the learned senior counsel would contend 14 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 as under:
i. The provisions of Act 31 of 1975 define the term "transfer" under Section 2(g) and it is only in a situation where "transfer" is proved by the applicants, the provisions under Section 4 of the Act, would get attracted. He points out that if Section 4 of the Act is not getting attracted, there is no question of applying the provisions under Section 6 of the Act.
ii. Sri.Ravindran relied on Exts.P4 and P5 applications filed by the applicants and would submit that in column 5 of the applications as against the extent, only 5 Ares and 15 Ares (total 20 Ares) are mentioned. He also points out that as against the survey number to be mentioned in column 5(b), in both applications the mention is only about SM 840/76.
iii. He points out to Ext.P1 survey and settlement register of Sholayur Village wherein the properties under Survey No.913/1 is shown to be under the occupation of 'P.C. 15 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 brothers', whereas, in the very same register as against Survey No.917/1 alone the applicants' name figure.
12. Sri.Mohanakannan, the learned counsel for the petitioner in WP(C) No.1020 of 2017 points out as under:
i. In Ext.P6 order, the Sub Collector has only proceeded on the basis of the "assumptions".
ii. Relying on Ext.P5(a) - A and B register produced along with the writ petition, he points out that the properties under Survey No.913/1 were in the possession of 'P.C. brothers'.
iii. He relies on Ext.P11 report of the Special Survey Team to contend that the properties in Survey No.913/1 are different from the properties mentioned in the applications filed by the applicants.
13. Sri.Balagangadharan, the learned counsel for the petitioners in W.P(C) No.3467 of 2017:
i. Relies on Ext.P11 Survey War Register to point out that SM 840/76 referred to in the applications filed by the applicants, pertain to Survey No.917/1. 16 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 ii. He also relies on Ext.P10 report submitted by the Additional Tahsildar, wherein there is a positive finding that the properties under Survey No.913/1 were obtained against the purchase certificate by 'P.C. brothers' and there is no evidence adduced by the applicants in support of their contentions.
14. The learned Government Pleader would rely on the findings contained in the order issued by the Sub Collector to contend that the proceedings initiated were perfectly justified.
15. I have considered the rival submissions and the connected records.
16. The first issue arising for consideration in this writ petition is regarding the applicability of the provisions under the Act 31 of 1975 and Act 12 of 1999. The above enactments have been introduced for restricting the "transfer" of lands by members of the Scheduled Tribes in the State and for restoration of possession of lands "alienated by such members of Scheduled Tribes". Sections 4 and 5 of Act 31 of 1975 reads as under:
"4. Restriction on transfer:- Notwithstanding anything 17 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 to the contrary contained in any other law, or in any contract, custom or usage, or in any judgment, decree or order of any court, any transfer effected by a member of a Scheduled Tribe, of immovable property possessed, enjoyed or owned by him, on or after the commencement of this Act to a person other than a member of a Scheduled Tribe, without the previous consent in writing of the competent authority, shall be invalid.
5. Certain transfers to be invalid:- Notwithstanding anything to the contrary contained in any other law for the time being in force, or in any contract, custom or usage, or in any judgment, decree or order of any court, any transfer of immovable property possessed, enjoyed or owned by a member of a Scheduled Tribe to a person other, than a member of a Scheduled Tribe to a person other than a member of a Scheduled Tribe effected on or after the first day of January, 1960, and before the Commencement of this Act shall be deemed to be invalid."
(underlining supplied) Under Section 4, certain transfers are deemed to be invalid, when made without the previous consent in writing of the competent authority. Similarly, under Section 5, certain transfers made on or after 01.01.1960 upto the commencement of the Act are also made invalid. As regards the transfer of immovable property, which is invalid under Section 4 or 5, the statute provides for the following 18 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 treatment under Section 6 of Act 31 of 1975:
"6. Reconveyance of property.- (1) Where by reason of a transfer of immovable property which is invalid under S. 4 or S.5, a member of a Scheduled Tribe has ceased or ceases to be in possession or enjoyment thereof, he shall be entitled to restoration of possession or enjoyment, as the case may be, of such property.
(2) Any person entitled to be restored to the possession or enjoyment of any immovable property under sub-section (1) or any other person on his behalf may make an application, either orally or in writing, to the Revenue Divisional Officer within a period of one year from the date of commencement of this Act or such further period as may be specified by Government by notification in the Gazette.
(a) for restoration of possession or enjoyment, as the case may be, of such property, if such transfer had been made before the date of commencement of this Act; or
(b) for restoration of possession or enjoyment, as the case may be, of such property and for the prosecution of the person who has procured such transfer, if such transfer was made on or after the date of commencement of this Act.
(3) On receipt of an application under sub-section (2), the Revenue Divisional Officer shall make or cause to be made necessary inquiries in respect of such application and, if he 19 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 is satisfied that the applicant or the person on whose behalf the application has been made is entitled to restoration of possession or enjoyment, as the case may be, of the immovable property mentioned in the application, he shall, by order, direct the person in possession or enjoyment of such property to deliver possession thereof to the applicant or to the person on whose behalf the application has been made or, as the case may be, to allow him to enjoy such property, within a period of thirty days from the date of service of the order and also specify the amount payable under section 11."
(underlining supplied) Thus Section 6 provides for the reconveyance of the property, the transfer of which is invalid under Section 4 or 5.
17. A reading of Sections 4, 5 and 6 make it clear that the above provisions are attracted only when there is a "transfer" of property;
i. By a member of the Scheduled Tribe
ii. Of immovable property possessed, enjoyed or owned by
him
iii. To a person other than a member of a Scheduled Tribe. Therefore, it is only in a situation where the "applicant" under Section 6(2) of Act 31 of 1975 proves that, there was a transfer of certain 20 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 property from his side to a person other than the member of a Scheduled Tribe, the above provision gets attracted.
18. The term "transfer" has been defined under Section 2(g) of Act 31 of 1975 as under:
"(g) "transfer" in relation to immovable property, means an act by which immovable property is conveyed by any documentary or oral transaction, whether by way of mortgage with or without possession, lease, sale, gift or exchange, or in any other manner, not being a testamentary disposition; and includes a charge, 'vilapanayam', 'unduruthi', contract relating to immovable property, mortgage, pledge or hypothecation of crops or standing trees on payment of consideration or otherwise, voluntary surrender and abandonment.
Explanation.-For the purposes of his clause,-
(i) "vilapanayam" means hypothecation of crops on payment of consideration or otherwise;
(ii) 'unduruthi", means an assignment of the right to collect the usufructs available or anticipated to be available on any land during a specified term for a specified price.
A reading of the above definition makes it clear that a conveyance either by a document or by an oral transaction of immovable property by way of mortgage, lease, sale, gift/exchange or in any other 21 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 manner of immovable property is attracted under the above definition. Therefore, the applicant has to first prove with reference to the immovable property that there was a transfer from his side to the member of the Non-Scheduled Tribe, without which the provisions of the statute are not attracted.
19. The provisions of Act 12 of 1999, which came into force with effect from 24.01.1986, repealed Act 31 of 1975. Here, the applications have been presented by the applicants before the 2nd respondent as evidenced by Exts.P4 and P5 on 16.07.1987. However, the orders were issued on 31.05.2012 as evidenced by Ext.P6 with reference to the provisions of Act 12 of 1999.
20. The provisions of Act 12 of 1999 are also similar to the provisions under Act 31 of 1975. But as regards the term "transfer", Act 12 of 1999 provides as under:
"(g) transfer means the transfer made by any person belonging to the Scheduled Tribe of lands in his ownership and possession to a person other than a member of the Scheduled Tribe by way of sale, mortgage, lease, gift and includes vilapanayam and unduruthy.
Explanation:- For the purposes of this clause: 22
W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880
(i) vilapanayam means hypothecation of crops on pay-
ment of consideration or otherwise;
(ii) unduruthi means an assignment of the right to collect the usufructs available or anticipated to be available to any land during a specified term for a specified price."
(underlining supplied) Apart from the above difference, the provisions under Section 4 relating to restriction on transfer, Section 5 providing certain transfers to be invalid and Section 7 dealing with the reconveyance of land are all pari materia to the corresponding provisions under Act 31 of 1975. Therefore, the applicants in the case at hand ought to have proved the "transfer" by them to the petitioners herein so as to get the benefits under the provisions of Section 7 (reconveyance of land) from the petitioners.
21. The reference to the applications at Exts.P4 and P5 would show that the reconveyance is sought as against a property, extending to 5 Ares in Ext.P4 and 15 Ares in Ext.P5. Similarly, as regards the description of the property no survey number is noted. Instead, the applicants only make reference to the "SM 840/76". The nature of the transfer is shown as "free lease". 23 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880
22. Thus, first of all, the area which is sought to be reconveyed is 20 Ares which has no connection with the property in the possession of the petitioners. Secondly, no survey number is provided. Thirdly, in the place of the survey number, reference is made to SM 840/76. The said SM 840/76 was in relation to the property in Survey No.917/1 as is clear from Ext.P11 produced along with W.P(C) No.3467 of 2017. Similarly, a reference to Ext.P1, produced along with W.P(C) No.1949 of 2017 would show that Survey No.917/1 is with reference to the properties in the possession of the applicants. Therefore, Ext.P4 and P5 applications can only be considered to be filed with reference to the properties in Survey No.917/1. In Ext.P1 itself, produced along with W.P(C) No.1949 of 2017, the properties under Survey No.913/1 are shown as under the occupation of 'P.C. brothers'.
23. Similarly, the report at Ext.P11 produced along with W.P(C) No.1020 of 2017 of the Special Survey Team clearly shows that the properties under Survey No.913/1 are different from the survey number of the properties claimed by the applicants. Ext.P5(a) also proves that the properties in Survey No.913/1 are held by 'P.C. 24 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 brothers'. From all the above, it is clear that the applicants were not in a position to prove any "transfer of properties from their side to the petitioners herein".
24. The first order issued by the 2 nd respondent - Ext.P6 in W.P(C) No.1949 of 2017, also proceeds purely on the basis of assumptions.
25. Apart from all the above, it is noticed from Ext.P6 in W.P(C) No.1949 of 2017 (later substituted as Ext.P14 along with I.A.No.1 of 2019) dated 31.05.2012, the 2nd respondent found with reference to Ext.P5 (a) and on examination of the parties that the disputed property was in the name of P.C. brothers. Similarly, there is a finding that the properties in the name of the applicants are falling under Survey No.917/1. Even after finding so, the 2nd respondent found that since no records were produced by the petitioners apart from Ext.P3 partition deed, the stand of the petitioners cannot be accepted. I find no justification on the part of the 2nd respondent for arriving at such a finding. As already noticed, it was for the applicants to have proved the transfer, so as to invoke the provisions of the relevant statutes. When the 2nd respondent finds with reference to 25 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 the documents including Ext.P5(a) of Sholayur Village that the disputed properties are in the name of P.C. brothers, the onus on the part of the applicants cannot be treated to have shifted to the petitioners herein. It is only when the applicants prove their case by adducing evidence, the petitioners can be called upon to produce subsequent documents in support of their ownership. The petitioners have produced Exts.P15 and P16 purchase certificates along with I.A.No.1 of 2021 issued by the Special Tahsildar, Land Reforms, Pudur dated 28.06.1974 and 29.05.1975 in favour of P.C.Mathew and P.C.Thomas. The said purchase certificates have been issued pursuant to the proceedings before the Land Tribunal. A reference to the schedule forming part of the said purchase certificates also shows P.C. brothers were having a valid right. In such circumstances, I do not find any reason to sustain the impugned orders challenged in these writ petitions.
26. I also notice the judgment of this Court in Kunjiraman Nambiar and others v. State of Kerala and others [2018 (4) KHC 257] wherein this Court found that it is only when the factum of transfer is proved, the provisions of Act 12 of 1999 would get 26 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 attracted.
Resultantly, the writ petitions would stand allowed as under:
i. Exts.P9 and P11 challenged in W.P(C) No.1949 of 2017 would stand quashed.
ii. In view of the above, W.P(C) Nos.1020 and 3467 of 2017 are also allowed.
iii. Ext.P11 in W.P(C) No.19141 of 2018 is quashed, directing the 4th respondent therein to accept basic tax for the year 2018-2019 onwards in respect of the properties covered by Exts.P1 to P3 from the petitioners therein.
Sd/-
HARISANKAR V. MENON JUDGE ln 27 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 APPENDIX OF WP(C) 1949/2017 PETITIONER'S EXHIBITS:
EXHIBIT P1- RELEVANT EXTRACT OF THE SURVEY AND SETTLEMENT REGISTER OF SHOLAYUR VILLAGE.
EXHIBIT P2- TRUE COPY OF THE LICENCE.
EXHIBIT P3- TRUE COPY OF THE PARTITION DEED DATED
28/04/1995.
EXHIBIT P4- TRUE COPY OF THE APPLICATION SUBMITTED
BEFORE THE RDO NO.2058/1987 DATED
16/07/1987.
EXHIBIT P5- TRUE COPY OF THE APPLICATION SUBMITTED
BEFORE THE RDO NO.2059/1987 DATED
16/07/1987.
EXHIBIT P6- TRUE COPY OF THE ORDER OF THE RDO DATED
31/05/2012.
EXHIBIT P7- TRUE COPY OF THE APPEAL FILED BY THE
PETITIONER DATED 08/08/2012 (WITHOUT EXTES.). EXHIBIT P8- TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 22/08/2014.
EXHIBIT P9- TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 19/10/2015.
EXHIBIT P10- TRUE COPY OF THE APPEAL PREFERRED BY THE PETITIONER DATED 17/11/2015 (WITHOUT EXTS.). EXHIBIT P11- TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATE 09/12/2016.
EXHIBIT P12 TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER DATED 20/06/2018.
EXHIBIT P13 TRUE COPY OF COMMUNICATION OF THE VILLAGE OFFICER, SHOLAYUR DATED 20/06/2018. 28 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 EXHIBIT P14 TRUE COPY OF THE ORDER OF THE REVENUE DIVISIONAL OFFICER, OTTAPALAM DATED 31.05.2012.29
W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 APPENDIX OF WP(C) 19141/2018 PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF DOCUMENT NO.1307/07 DATED 10/10/2007 OF SRO AGALI.
EXHIBIT P2 TRUE COPY OF DOCUMENT NO.1295/1/07 DATED 10/10/2007 OF SRO AGALI EXHIBIT P3 TRUE COPY OF DOCUMENT NO. 1299/1/07 DATED 10/10/2007 OF SRO AGALI.
EXHIBIT P4 TRUE COPY OF PROCEEDINGS OF 2ND RESPONDENT DATED 13/5/1995 EXHIBIT P5 A TRUE COPY OF ORDER NO.LR 96/2013/16159/9 ISSUED BY FIRST RESPONDENT.
EXHIBIT P6 A TRUE COPY OF ORDER OF SECOND RESPONDENT DATED9/9/2015 EXHIBIT P7 A TRUE COPY OF ORDER OF FIRST RESPONDENT DATED 9/12/2016 EXHIBIT P8 A TRUE COPY OF ORDER IN WPC 3467/2017 DATED 2/6/2017 OF HON'BLE COURT.
EXHIBIT P9 A TRUE COPY OF JUDGMENT IN WPC 207842-11 DATED 29/2/2012 OF THSI HOB'BLE COURT. EXHIBIT P10 A TRUE COPY OF BASIC TAX RECEIPT DATED 21/8/2017 ISSUED BY 4TH RESPONDENT.
EXHIBIT P11 A TRUE COPY OF LETTER OF 4TH RESPONDENT DATE 25/5/2018 ISSUED TO THE PETITIONERS. 30 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 APPENDIX OF WP(C) 3467/2017 PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF DOCUMENT NO.1307/07 DATED 10-10-2007 OF SRO AGALI.
EXHIBIT P2 TRUE COPY OF DOCUMENT NO.1295-1-2017 DATED 10-10-2007 OF SRO AGALI.
EXHIBIT P3 TRUE COPY OF DOCUMENT NO.1299-1-07 DATED 10-10-2007 OF SRO AGALI.
EXHIBIT P4 TRUE COPY OF APPLICATION DATED 16-7-1987 BEFORE THE SECOND RESPONDENT FILED BY MARIMOOPAN.
EXHIBIT P5 TRUE COPY OF APPLICATION DATED 16-7-1987 BEFORE THE SECOND RESPONDENT FILED BY VAZHA. EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS OF THIRD RESPONDENT DATED 13-10-1995.
EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS OF SECOND RESPONDENT N. LRG 6-2013/16159/9DATED NIL. EXHIBIT P8 TRUE COPY OF ORDER OF THIRD RESPONDENT DATED 9.9.2015.
EXHIBIT P9 A TRUE COPY OF THE PROCEEDINGS OF SECOND RESPONDENT DATED 9-12-2016.
EXHIBIT P10 TRUE COPY OF THE REPORTOF THE ADDITIONAL TAHSILDAR MANNARGHAT DATED4-1-2012.
EXHIBIT P11 TRUE COPY OF RELEVANT PAGE OF SURVEY WEAR REGISTER OBTAINED UNDER RTI ACT.
EXHIBIT P12 TRUE COPY OF RELEVANT PAGE OF A&B REGISTER MAINTAINED IN THE VILLAGE OFFICE, SHOLAYUR. EXHIBIT P13 TRUE COPY OF THE SURVEY WAR REGISTER (RELEVANT PAGE) ISSUED BY THE SPECIAL TAHSILDAR, OTTAPALAM UNDER RTI ACT.
31W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 EXHIBIT P14 A TRUE COPY OF THE SURVEY AND SETTLEMENT REGISTER ISSUED BY TECHNICAL ASSISTANT SURVEY AND LAND RECORDS, PALAKKAD.
EXHIBIT P15 A TRUE COPY OF THE PARTITION DEED NO.4238 DATED 18/11/1978 EXHIBIT P16 A TRUE COPY OF DOCUMENT NO.472/95 DATED 27/3/1995 EXHIBIT P17 A TRUE COPY OF DOCUMENT NO.671/1995 OF SRO AGALI DATED 28/4/1995 EXHIBIT P18 A TRUE COPY OF RELEVANT PAGE OF SURVEY WAR REGISTER IN THE OFFICE OF SPECIAL TAHSILDAR OTTAPALAM 32 W.P.(C) No.1020 of 2017 and con.cases 2024:KER:69880 APPENDIX OF WP(C) 1020/2017 PETITIONERS' EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE REGISTERD PARTITION DEED NO.671/1995 DATED 28.4.95 OF SRO AGALI. EXHIBIT P2: TRUE COPY OF THE LAND TAX RECEIPT NO.6004848 DATED 19.6.2012.
EXHIBIT P3: TRUE COPY OF THE LAND TAX RECEIPT NO.6004851 DATED 19.6.2012.
EXHIBIT P4: TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE 4TH RESPONDENT DATED
27.11.1995.
EXHIBIT P5: TRUE COPY OF THE REPORT DATED 4.1.2012 FILED BY THE ADDITIONAL TAHSILDAR MANNARKKAD.
EXHIBIT P5(A): TRUE COPY OF THE EXTRACT OF A & B REGISTER. EXHIBIT P6: TRUE COPY OF THE ORDER PASSED BY THE 5TH RESPONDENT IN TLA 2058/1987 DATED 9.9.2015. EXHIBIT P7: TRUE COPY OF THE STATUTORY APPEAL U/S. 7(5) OF ON TEH ACT BEFORE THE 2ND RESPONDENT ON NOV.2015.
EXHIBIT P8: TRUE COPY OF THE RELEVANT PAGES OF THE SETTLEMENT REGISTER OF SHOLAYUR VILLAGE. EXHIBIT P9: TRUE COPY OF THE ORDER NO.LRG 6/2015/76022/9 DATED 9.12.2016.
EXHIBIT P10: TRUE COPY OF THE KERALA RESTRICTION OF TRANSFER BY AD RESTORATION OF LAND TO SCHEDULED TRIBES ACT 1999.