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2020 DIGILAW 270 (KER)

Ansy Rajan v. District Collector, Ernakulam

2020-03-03

ALEXANDER THOMAS

body2020
JUDGMENT : As similar issue is raised in both these Writ Petitions, these cases are disposed of on the basis of this common judgment. The prayers in W.P. (C) No. 6384 of 2020 are as follows: “i. Issue a writ of certiorari or order or direction calling for the records leading to Exhibit P2 and quash the same. ii. Issue a writ of certiorari or order or direction calling for the records leading to Exhibit P4 proceedings and quash the same. iii. Issue a writ of mandamus or order or direction directing the fourth respondent to remove the entry created in the encumbrance of the petitioner's property, on the basis of Exhibit P2 & P4, forthwith; iv. Issue a writ of mandamus or any other appropriate writ or order, direction declaring that the first respondent has no authority to issue directions as per Exhibit P4 proceedings as per Kerala Conservation of Wet Land and Paddy Land Act, 2008: and v. Pass such other orders as this Hon'ble Court deems, fit, proper and necessary in the circumstances of the case.” The prayers in W.P. (C) No. 6406 of 2020 are as follows: “i. Issue a writ of certiorari or order or direction calling for the records leading to Exhibit P2 and quash the same. ii. Issue a writ of certiorari or order or direction calling for the records leading to Exhibit P4 proceedings and quash the same. iii. Issue a writ of mandamus or order or direction directing the fourth respondent to remove the entry created in the encumbrance of the petitioner's property, on the basis of Exhibit P2 & P4, forthwith; iv. Issue a writ of mandamus or any other appropriate writ or order, direction declaring that the first respondent has no authority to issue directions as per Exhibit P4 proceedings as per Kerala Conservation of Wet Land and Paddy Land Act, 2008: and v. Pass such other orders as this Hon'ble Court deems, fit, proper and necessary in the circumstances of the case.” 2. Heard Sri.Deepu Thankan, learned counsel appearing for the petitioners in these two cases and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents in these two cases. 3. The condition No.3 in Ext.P-2 which has been impugned in W.P. (C) Nos. 6384 & 6406 of 2020 reads as follows: “3. Heard Sri.Deepu Thankan, learned counsel appearing for the petitioners in these two cases and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents in these two cases. 3. The condition No.3 in Ext.P-2 which has been impugned in W.P. (C) Nos. 6384 & 6406 of 2020 reads as follows: “3. The Sub Registrar, Maradu (for information and urgent action as order in the District Collectors Proceedings No.L-10-72679/08 dated 30/4/12 to withhold all transactions in respect of the above said land which is conservation/re-claimed in contravention of the Kerala Conservation and Paddy land and Wet Land Act 2008.” 4. The abovesaid conditions are imposed by the 2nd respondent RDO while passing orders at Ext.P-2 while considering the case of alleged violation of provisions of the Kerala Land Utilization Order/Kerala Conservation of Paddy Land and Wet Land Act, 2008, etc. This Court is now considering only the legality and correctness of the said impugned condition No.3 of Ext.P-2 in both these cases. It is by now well settled that the authorities either under the Kerala Land Utilization Order or that under the Kerala Conservation of Paddy Land and Wet Land Act, 2008, does not have any jurisdiction or competence to put a condition that the land owner cannot alienate, encumber or transfer the land while dealing with alleged cases of violations as per those provisions. 5. This Court has held in decisions as in Subeesh v. nadathara Grama Panchayath 2019 (4) KLT 782 that, such a similar condition imposed by the District Level Authorized Committee under the provisions of the abovesaid 2008 Act, so as to prohibit the right of the land owner to transfer or alienate the land is without any authority, and is also in flagrant violation of the Right To Property guaranteed under Article 300A of the Constitution of India, and such absolute restrain on transfer of property is legally and constitutionally impermissible, etc. 6. This position has also been so held by this Court in the judgment rendered today (3.3.2020) in WP(C).No.6314/2020. Accordingly it is ordered that, the impugned condition No.3 in Ext.P-2 produced in both these Writ Petitions will stand set aside and quashed. 6. This position has also been so held by this Court in the judgment rendered today (3.3.2020) in WP(C).No.6314/2020. Accordingly it is ordered that, the impugned condition No.3 in Ext.P-2 produced in both these Writ Petitions will stand set aside and quashed. Also it is ordered and directed that, the 4th respondent Sub Registrar, Maradu, Ernakulam District, shall not note any encumbrance in the Encumbrance Certificate in relation to the subject property in this case on the basis of the impugned condition No.3 in Ext.P-2, as the said condition has now been quashed by this Court. If any such encumbrance has already been noted by the 4th respondent in respect of the subject property, then additional entries shall be made in the document concerned, so as to delete such encumbrances and fresh Encumbrance Certificate may be issued to the petitioners, if so applied for, after deleting such encumbrances based on the impugned condition No.3 in Ext.P-2. 7. The counsel for the petitioners in both these cases would point out that, as a matter of fact the main matter in Ext.P-2 has become practically infructuous and redundant, in view of the issuance of Ext.P-7 produced in both these cases. This Court need not get into those aspects. All other issues are left open to be raised and decided in other appropriate proceedings in the manner known to law, if such issues really do come up for consideration. With these observations and directions, both the above Writ Petitions (Civil) will stand disposed of.