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2021 DIGILAW 823 (KER)

Vasu, S/o. Chelli v. State Of Kerala

2021-09-15

DEVAN RAMACHANDRAN

body2021
JUDGMENT : The predicament of the petitioner in this case is a text book illustration of how blind and intractable reliance on general prescriptions by the official system can end in unwitting detriment and injustice in specific instances. 2. Paradoxically, a particular provision which is designed and intended to protect the petitioner, on account of it being applied strictly has placed him in great prejudice, forcing him to approach this Court for resolution. 3. The facts involved, as I will record in brief below, will explain the afore preface. 4. The petitioner, who is a member of a Scheduled Caste Community, purchased a property vide Exhibit P1 sale deed, enjoying exemption from paying the stamp duty thereon as per a Government Order, bearing No.G.O.(P) 108/2000/TD dated 04.07.2000. The petitioner concedes that said order was issued for the benefit of the members of the SC/ST communities and that it was he himself who had chosen and identified the property. He, however, asserts that though he purchased the property to provide a residential house for himself, it has become not possible for him to construct one therein because it is a waterlogged paddy land. 5. The petitioner submits that, therefore, he has now identified another extent, owned by a certain Sri.Kunjumoideenkutty Haji, S/o Beerankutty and that he executed a sale agreement with him, namely Exhibit P2, after paying an advance amount of Rs.10 lakhs. He explains that he ventured into this under the hope that he will be able to sell his property and pay off the balance sale consideration for it. He says that, however, he was told by the official Authorities that he will not be permitted to sell his property covered by Exhibit P1 because there is a condition incorporated therein that the same cannot be alienated in any manner, including by sale, gift or mortgage, for a period of fifteen years from its date. 6. The petitioner concedes that the afore condition was incorporated in Ext.P1 in terms of the mandate of G.O.(P)No.108/2000/TD dated 04.07.2000; but argues that the afore inhibition cannot apply to him in this case because he does not want to sell his property and convert it into money, but that he intends to use its sale consideration only for buying a better property, covered by Exhibit P2 agreement. 7. 7. The petitioner thereafter says that since he was informed that his request for sale of his property covered by Exhibit P1 will not be allowed unless the Government grants him permission to do so, he approached the second respondent with Exhibit P3 request; but alleges that no action has been taken thereon by the said authority until now, thus constraining him to approach this Court because, if any further delay is occasioned, he would be incapacitated from buying the property covered by Exhibit P2 and he would face the risk of losing the large advance paid by him on it. 8. The petitioner, therefore, prays that this Court declare that the terms of Exhibit P1 sale deed or that of the aforementioned Government Order would not inhibit him from selling his property for buying a better suited one, so as to enable him to construct a residential house for himself. As an alternative prayer, the petitioner seeks that Exhibit P3 request be directed to be disposed of by the second respondent in his favour, within a time frame to be fixed by this Court. 9. I have heard Sri.C.M.Mohammed Iquabal, learned counsel, appearing for the petitioner and Sri.M.K.Robin Raj, learned Special Government Pleader, appearing for the official respondents. 10. The learned Special Government Pleader argued that this writ petition is not maintainable because the petitioner cannot seek permission to sell his property in contravention of its covenants and the conditions specified in the aforementioned Government Order. He pointed out that it was the petitioner himself who had identified the property covered by Exhibit P1 and who had voluntarily purchased it, availing the exemption from payment of stamp duty, as granted in the Government Order dated 04.07.2000. He then read out Exhibit P1 to show me that the prohibition contained therein is against all forms of alienation, whether it be sale, gift, mortgage or such other. He thus vehementally predicated that petitioner cannot sell his property, as now sought for by him; and therefore, that the prayers in this writ petition are incapable of being granted in his favour. 11. He thus vehementally predicated that petitioner cannot sell his property, as now sought for by him; and therefore, that the prayers in this writ petition are incapable of being granted in his favour. 11. Supplementing the above, the learned Special Government Pleader further stated that the Government had issued its aforementioned order dated 04.07.2000, granting exemption from paying the stamp duty with respect to properties purchased by the members of the SC/ST community for their own benefit because, otherwise, taking advantage of their vulnerable social and educational situation, they may be lured to part with it, through the inducement of vested interests and would thereupon be again rendered homeless and without means of livelihood. He vehemently argued that Government had the best interests of persons like the petitioner in their mind, while imposing the condition against permitting them to sell their property, acquired enjoying the exemption from paying stamp duty, within a period of fifteen years of its purchase; and consequently, prayed that this writ petition be dismissed. 12. As I have said in the exordium of this judgment, when the facts of this case are analysed in an abstract or technical manner, then no relief can be granted to the petitioner because it is apodictic that he intends to sell the property covered by Exhibit P1. Going by the covenants therein, as also the conditions attached to the Government Order dated 04.07.2000, the petitioner cannot alienate, much less sell, the property covered by Ext.P1. 13. However, this is where the essential of a purposive interpretation comes to play because, as rightly stated by the learned Special Government, the restriction in the power of alienation has been stipulated solely for the benefit of the persons belonging to the SC/ST community, like the petitioner. If it is the interest of the said persons which is paramount, then care must also be taken to avoid detriment to the very same people who are sought to be protected, from being prejudiced because of its inflexible application, without taking note of the specific factual differences involved. 14. To paraphrase, if the condition imposing restriction in alienation is applied across the board and is used as one size fits all, then, as the facts of this case demonstrate, it might cause much deeper harm in special circumstances. 15. 14. To paraphrase, if the condition imposing restriction in alienation is applied across the board and is used as one size fits all, then, as the facts of this case demonstrate, it might cause much deeper harm in special circumstances. 15. Taking the facts of this case itself as an example, the petitioner purchased his property, availing the benefit of the Government Order dated 04.07.2000, for the purpose of construction of a residential house. However, but this dream of his has come falling down because the property in question is a waterlogged paddy land. He says that, therefore, he identified a better land and paid Rs.10 lakhs as advance to its owner. 16. If the afore assertions of the petitioner are true, then to force him to retain the property under Exhibit P1 for a period of fifteen years, would render him without a residence -which he desperately wants for himself -and he would also lose the advance of Rs.10 lakhs paid for the new property identified by him, which is mentioned in Exhibit P2 agreement. 17. Pertinently, this is not a case where the petitioner intends to sell his property and use the money for other purposes; but he wants to buy a better one, which attracts a higher market value. 18. I, therefore, fail to fathom how the embargo now imposed against the petitioner -from selling his property covered by Exhibit P1 -would be to his benefit, as has been now asserted by the learned Special Government Pleader. On the contrary, it is without doubt that the petitioner would face grave detriment. 19. In the conspectus of my observations and opinion above, I am certain that the transaction now sought for by the petitioner requires to be considered on its merits, de hors the technical objection relating to the conditions of restraint of alienation contained in Ext.P1; and if it is, thereafter, found that he intends to sell the property for buying a better one and if Ext.P2 Agreement is found to be a genuine one, then the competent Authority must certainly favour him with affirmative orders. 20. 20. Before concluding, I must also record that another learned Judge of this Court has, in the judgment in W.P.(C)No. 37481/2017 and connected matters, also adopted a similar view and concluded that the request of a member of the SC/ST community, either for purchase of a better property or for exchange with another, must be considered on a case to case basis, leading to an apposite decision to be taken, if it is found to be to the benefit of the person concerned. 21. In the afore circumstances, there can be little contest that as long as the petitioner, after the transaction proposed by him, ends in possession of a similar -if not a better property for himself, the protectional objective of the Government would be fully subserved. 22. Resultantly, if the petitioner completes both the transactions -namely sale of his property covered by Exhibit P1 and purchase of another covered by Exhibit P2 -simultaneously, I see no reason to deny him that opportunity, especially when he says that value of the latter property is much more than that of his present one. 23. The learned Special Government Pleader, at this time, interjected to say that, since the Government's only intention is that the petitioner is not put to prejudice in any manner, he would accept the afore opinion of this Court; but prayed that the Sub Registrar be given opportunity to verify, through appropriate means, that the property covered by Exhibit P2 is of equal value or more than the property covered by Exhibit P1. He submitted that this is to ensure that petitioner does not convert his property into money and obtain an immediate unjustified monetary benefit, which, in the long run, may only put him to detriment. He submitted that this is to ensure that petitioner does not convert his property into money and obtain an immediate unjustified monetary benefit, which, in the long run, may only put him to detriment. I certainly appreciate the afore stand of the learned Special Government Pleader, particularly the sincerity shown by him to the cause; and consequently, allow this writ petition with directions ut infra: (a) The competent among respondents 2 and 3 -Secretaries to Government, will take up Ext.P3 request of the petitioner and cause a comparative evaluation of the properties covered by Exhibits P1 and P2 to be through the proper Authorities, after affording an opportunity of being heard to the petitioner; and if it is thus found that the property covered by Exhibit P2 is of the same or higher value than the one covered by Exhibit P1, permission will be given to the petitioner to sell the latter, so as to buy the former. This shall be done by the competent respondent as expeditiously as possible, but not later than one month from the date of receipt of a copy of this judgment. (b) On the petitioner receiving permission as afore, he will be at liberty to produce the sale deeds with respect to the sale of the property covered by Exhibit P1 and purchase of the one under Exhibit P2, before the third respondent, who shall thereupon register both, one after the other, without any avoidable delay.