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2007 DIGILAW 117 (KER)

Sivaraman v. State of Kerala

2007-02-15

THOTTATHIL B.RADHAKRISHNAN

body2007
Judgment :- Thottathil B. Radhakrishnan, J. Admitted. Learned Government Pleader takes notice for 1st Respondent. Urgent notice of other respondents. 2. Heard learned counsel for the petitioner, learned Government Pleader and the learned counsel for the supplemental respondents in W.P.(C) No.4695/2007 regarding interim relief. 3. S.17A and 17B were introduced into the Kerala Surveys and Boundaries Act, 1961 by the amending Act 1994 providing, among other things, in S.17A(1) that the embargo created thereby regulating transfer of land would come into effect on such date as may be noticed by the Government. The Government were also given the freedom to fix different dates, by notification, for different areas. In exercise of such delegated legislative power, the Government of Kerala issued Ext.P1, notifying 30.3.95 as the date on and from which the provisions of S.17A and 17B shall come into force in the areas of jurisdiction of Principal Registration Sub District, Kottayam and the Registration Sub District, Angamaly. The effect of such notification is that the law contained in S.17A stood enforced in those areas from that particular day. The effect of S.17A, in so far as those areas are concerned, can be taken away only by a further legislative act. The action taken by the Government in the form of an executive order to interfere with that legal position found its waterloo in Ext.P3 judgment of the Division Bench. With the legislation of S.17A and 17B, the Kerala Survey and Boundaries Rules 1964 were also amended in 1995, introducing a Chapter containing Rules 106 to 134 under the heading ‘Preparation of Survey Maps for Registration of Title Deeds’. Forms 26 to 28 were also introduced, apart from clause (cc) in R.2. By Ext.P4 in W.P.(C) No.4588 of 2007 the Government have now issued the Kerala Survey and Boundaries (Amendment) Rules 2005 whereby the amendments brought into the Rules in 1995, introducing the relevant rules as are required in the context of S.17A and 17B, have been omitted. Following that, Ext.P5 has been issued closing down the offices functioning in Angamaly and Kottayam for the purpose of S.17A and 17B of the Act. 4. The mere repeal of the Rules would not take away the force of the law contained in S.17A and 17B, once they have been applied to a particular area by an instrument in the nature of Ext.P1. 4. The mere repeal of the Rules would not take away the force of the law contained in S.17A and 17B, once they have been applied to a particular area by an instrument in the nature of Ext.P1. The power to notify a date on which a particular legislation comes into effect in a particular area, constitutionally, does not carry with it the power to de-notify and thereby take a statute away from being operational in a particular area, where it had come into operation on the basis of notification of the Government under the authority of the Legislature, as contained in S.17A(1) of the Act. So much so, the legal effect to Ext.P1 cannot be clipped or set at naught by any exercise using the executive power of the Government. It cannot also be done by merely repealing the Rules framed as a piece of subordinate legislation, in the backdrop of S.17A and 17B of the Act. 5. If the law in S.17A and 17B, applies to Angamaly and Kottayam following Ext.P1, the citizens owning lands in that area cannot deal with those lands by entering into transactions, except by obeying the law contained in S.17A and 17B of the Act. If that be so, the necessary Rules have to continue to be operational and the requisite offices have also to function. Otherwise, it will be a situation where the executive Government would be setting at naught the flow of the law. Such deprivation of the right to transactions on the land over which one has ownership, immediately tends to impinge on Art.300A, apart from Art.14 of the Constitution of India. In certain circumstances, it will also encroach upon certain other constitutional guarantees including those referable to avocation, trade etc. In the aforesaid circumstances, I am satisfied that writ petitioners have established a strong prima facie case for stay of operation of the Kerala Surveys and Boundaries (Amendment) Rules 2005 and the decision of the Survey Director which is Ext.P5 in W.P.(C) No.4588/07 (Ext.P9 in W.P.(C) No.46975/07). For the foregoing reasons Exts.P4 and P5 in W.P.(C) No.4588/07 (Exts.P8 and P9 in W.P.(C) No.4695 of 2006) will stand stayed. As a consequence, the offices disbanded as per Ext.P5 shall continue to function. It is so directed.