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2021 DIGILAW 840 (KER)

Shekkabba Beary, S/o. Abdulla v. State of Kerala

2021-09-17

DEVAN RAMACHANDRAN

body2021
JUDGMENT : The petitioner claims to be the owner in possession of 42.09 Ares of property, comprised of in Survey No.189/2A2 of Paivalikke Village in Manjeshwar Taluk, Kasargod District; and he has approached this Court being aggrieved by the fact that the 2nd respondent -Tahsildar, has refused permission to sell the said property on the ground that, as per the terms of the assignment under which he obtained it, he is prohibiting from selling it for a period of 25 years from the date of assignment. 2. The petitioner says that even though his application, namely Ext.P8, seeking such permission has not been formally rejected, he has been told by the competent Authority that it will not be allowed and asserts that this is indubitable because, in the counter pleadings filed before this Court, this stand has been reiterated. 3. The petitioner, therefore, prays that the 2nd respondent be directed to consider Ext.P8 and allow him to sell the property covered by Ext.P1, since as per the Kerala Land Assignment Rules, 1964 (hereinafter referred to as 'the Rules' for short), prohibition from alienation continues only for a period of 25 years from the date of Registry; while going by Ext.P1, it is evident that the said date is in the year 1974. 4. I have heard Sri. R. Anas Muhammed Shamnad, learned counsel for the petitioner and Sri. Ashwin Sethumadhavan, learned Senior Government Pleader appearing for the respondents. 5. The learned Senior Government Pleader contested the afore plea of the petitioner pointing out to Clause 13(A) of Ext.P1 Certificate of Assignment, arguing that the title with respect to the land in question passed to the petitioner only when he had remitted its land value and arrears of tax and therefore, that the period of prohibition contained therein will require to be construed to commence from that date. He submitted that even though the date of Registry of the property was in the year 1974, Ext.P2 Purchase Certificate (Patta) was issued only on 29.12.2016, after the petitioner had complied with the conditions in Ext.P1 order of assignment. He prayed that, therefore, the plea of the petitioner for permission to sell the property covered by Ext.P2 may not be acceded to by this Court. 6. He prayed that, therefore, the plea of the petitioner for permission to sell the property covered by Ext.P2 may not be acceded to by this Court. 6. After saying as afore, the learned Senior Government Pleader explained that the conditions against inhibition of Transfer of Property obtained by persons under the Rules, have been stipulated for their benefit and to ensure that they are not lured by confutative interests in parting with the property for meagre amounts. The learned Senior Government Pleader submitted that therefore, when conditions incorporated in Ext.P1 are for the benefit of the petitioner, it does not stand to a reason that he should approach this Court and seek permission to sell his property, thereby prejudicing himself. He added that this is more so why the prayers in this writ petition may not be acceded to by this Court. 7. I have evaluated the afore submissions very carefully. 8. I must say upfront that whatever be the intent behind the submissions made by the learned Senior Government Pleader, this Court is enjoined to follow the provisions of law and to evaluate the stipulations contained in the statutory Scheme. 9. The provisions applicable for consideration of the issues in this case are contained in Rules 8 and 8(1)(A) of the Rules, which are extracted as under for the purpose of easy reference : “8. Conditions of assignment on registry:-[(1) Lands, granted on registry shall be heritable and alienable.] [(1A) Notwithstanding anything contained in sub-rule (1), unoccupied lands assigned on registry shall not be alienable for a period of three years from the date of registry: Provided that the assignee may mortgage such lands- [(a) to the Government or Co-operative Institutions or the Tea Board or the Rubber Board or any other financial institution recognized by the Government in this behalf, as security for obtaining loans for agricultural or land improvement purposes or for growing tea or rubber, and] (b) to the Government or Co-operative Institutions as security for obtaining loans for house construction under the Village Housing Project Scheme or any other Housing Schemes Sponsored by the Government, if such house is required for the occupation of the assignee or his family]. 10. As is ineluctable from the afore extracted provisions, the prohibition against alienation of the property covered by the Rules has been prescribed for a period of 25 years from the date of registry. 10. As is ineluctable from the afore extracted provisions, the prohibition against alienation of the property covered by the Rules has been prescribed for a period of 25 years from the date of registry. Thereafter, in 8(1)(A), it is limpidly provided that the land assigned on Registry shall be heritable and alienable. 11. The conjoined effect of the afore provisions can only be that from the date of Registry, the beneficiary cannot sell the property for a period of 25 years. The provisions do not, in any manner, even refer to the issuance of Purchase Certificate or the date on which it is done, but specifically and unequivocally only to the date of Registry. 12. I am, therefore, without any doubt in my mind that Ext.P8 application can be rejected by the competent Authority only if it is found that the date of Registry with respect to the property, covered by Ext.P2 Purchase Certificate, is within the umbra of 25 year period. 13. However, prima facie, Ext.P1 demonstrates that the date of Registry was in the year 1974, though the Purchase Certificate consequent to it was issued in the year 2016. In my firm view, the date of Purchase Certificate is of no consequence at all, when one examines the afore extracted provisions of Rule 8 of the Rules. Resultantly, I allow this writ petition and direct the 2nd respondent to take up Ext.P8 application of the petitioner and issue appropriate orders thereon, implicitly in terms of my observations above and after verifying whether the date of Registry with respect to the property falls beyond the period of 25 years. The afore exercise shall be completed by the 2nd respondent, after affording an opportunity of being heard to the petitioner, as expeditiously as is possible but not later than one month from the date of receipt of a copy of this judgment.