Dismissed

Devassikutty v. the State of Kerala

Kerala HC15 Oct 2009WP(C)/15249/2009

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed writ petitions challenging the validity of a permanent restriction on alienation under the Kerala Land Assignment (Regularisation of Occupations of Forest Lands Prior to 1-1-1977) Special Rules, 1993, which conflicted with Section 10 of the Transfer of Property Act and Article 14 of the Constitution.

What did the court decide?

The writ petitions seeking to quash the orders and challenge the validity of Rule 15(1) were dismissed.

Devassikutty Vs the State of Kerala — Land Acquisition | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE V.GIRI

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THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931

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WP(C).No. 15249 of 2009(A)

PETITIONER(S):

K.A.DEVASSYKUTTY, S/O.ANTONY, KANOORKARAYIL, KANJOOR.P.O., VADAKKUMBHAGOM VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT.

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K.J.JOSE, S/O.JOSEPH, KANJAMALA, RAGA-C5, RAINBOW GARDEN, C.P.NAGAR P.O., UNNICHIRA, ERNAKULAM.

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BY ADV. SRI.K.REGHU KOTTAPPURAM

SMT.URSULA FRANCIS

RESPONDENT(S):

THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVT., GOVT.SECRETARIAT, THIRUVANANTHAPURAM.

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THE COMMISSIONER AND SECRETARY TO GOVT., REVENUE DEPARTMENT, GOVT.SECRETARIAT,

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GOVT.OF KERALA, THIRUVANANTHAPURAM.

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THE DISTRICT COLLECTOR, IDUKKI DISTRICT, CIVIL STATION, IDUKKI.

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WP(C).No. 15249 of 2009(A) :: 2 ::

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THE TAHSILDAR, UDUMBANCHOLA TALUK, NEDUMKANDOM P.O., IDUKKI DISTRICT.

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R1 BY SRI.RANJITH THAMPAN, ADDL. ADVOCATE GENERAL BY GOVERNMENT PLEADER SRI.SANDESH RAJA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ALONG WITH WPC NO. 22178 OF 2009 WPC NO. 24452 OF 2009 ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.GIRI, J.

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W.P.(C) Nos.15249, 22178 & 24452 of 2009

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Dated this the 15^th day of October, 2009

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JUDGMENT

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Common questions have been raised in these writ petitions. Therefore, they have been heard together and are being disposed of by this common judgment. W.P.(C)No.15249/09 is taken as the leading case. Discussion in the said writ petition will govern the other writ petitions also.

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W.P.(C)No.15249/09

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The petitioners claim to be the assignees

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of 0.41.60 hectares of land in Survey No.30/8 of Chinnakkanal Village in Udumbanchola Taluk in Idukki District as per Exts.P2 and P3 sale deeds. The vendor of the petitioners had obtained the said land on assignment, as evidenced by Ext.P1. The assignment is seen to be made under the Kerala Land Assignment (Regularisation of Occupations of Forest

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W.P.(C)No.15249/09 & con. Cases

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:: 2 ::

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Lands Prior to 1-1-1977) Special Rules, 1993 {hereinafter referred to as “ the Rules ”}. The petitioners claim that, pursuant to the assignment in their favour, a building was put up in the land. Mutation was effected and basic tax was also paid.

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They, then came to know that by Ext.P7, the 4^th respondent, Tahsildar had addressed the vendor of the petitioners that the assignment in her favour would be cancelled. The petitioners approached the Government, challenging the said notice and by Ext.P8 order, the Government affirmed the action taken by the Tahsildar and found that the alienation made by the pattadar, under Ext.P2 and Ext.P3 in favour of the petitioners was clearly in contravention of Rule 15(1) of the Rules. The petitioners, therefore, are not entitled to be treated as bona fide purchasers. It was also found, in reply to a contention raised by the petitioners, that the assignment made under Ext.P1 patta would comprehend not only forest lands, but even

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W.P.(C)No.15249/09 & con. Cases

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Cardamom Hill Reserve Lands. The assignment was subject to the condition that the property is not alienable. Persons like the petitioners, who have, therefore, purported to acquire a right from the assignee under Ext.P1, is not entitled to claim any right over the property.

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The petitioners have challenged Ext.P8. They have also challenged the validity of Rule 15(1) of the Rules.

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A statement has been filed on behalf of the respondents, inter alia, contending that the assignment under Ext.P1 is under the Rules, which are validly framed under the provisions of the Land Assignment Act. The Land Assignment Act contemplates assignment subject to conditions and restrictions. There, in the case of lands comprehended by the Rules, is a restriction against alienation, though the lands are otherwise heritable. There is a good reason for such restriction. The lands, which are assignable under the Rules in

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W.P.(C)No.15249/09 & con. Cases

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question, were forest lands. Persons came into occupation of such lands mostly by way of encroachment. They had cultivated the land and the Government had, on an overall consideration of the situation prevailing in that area, decided that the persons, who are in occupation of such lands, may be assigned the right to continue to be in possession of the same and to enjoy the property as agricultural lands. It is, therefore, that the lands are declared to be heritable, but the very purpose of assignment would be defeated, if a restriction against alienation is not imposed. It is, hence, that Rule 15(1)of the Rules provides for such restriction.

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It was also contended that if at all any person can even contemplate a challenge against the restriction on alienation, it can only be the assignee from the Government and not transferees from the assignee, like the petitioners. In the instant case, the petitioners are transferees from persons, who, in turn, had purchased the property from the assignee.

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W.P.(C)No.15249/09 & con. Cases

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In fact, there have been several transactions in relation to many of the properties in that area, which originally were the subject matter of assignment under the Rules. All these alienations are per se void, in view of Rule 15(1) of the Rules.

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A reply affidavit has been filed by the petitioners.

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I heard Mr.Reghu Kottappuram, learned counsel for the petitioners and the learned Senior Government Pleader Mr.Sandesh Raja.

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Learned counsel for the petitioners contended that the restriction against alienation of the property, in perpetuity, under the Rules in question is unreasonable, and would be violative of Article 14 of the Constitution. The challenge on the ground of violation of Article 14 of the Constitution has been raised on the premise that, with regard to certain other assignments under the Land Assignment Act, there is a restriction on alienation only for a limited period and there is no restriction on

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W.P.(C)No.15249/09 & con. Cases

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alienation for perpetuity. He, therefore, relied on the following judgments: K.S.Satheesan and others v. the Chief Justice {1985 KLT 1103}, Ratan Kumar Tandon v. State of U.P. {1997(2) SCC 161}, Kerala Hotel & Restaurant v. State {1990 (2) SCC 502}, Khoday Distillaries v. State of Karnataka {1996(10) SCC 304} and Dharam Dutt v. Union of India {2004(1) SCC 712} , in this regard.

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The contention raised by the petitioners against the validity of Rule 15(1) of the Rules on the ground that the Rules bring about discrimination amongst similarly situated persons, in my view, is clearly misconceived. The Rules in question have been framed under the Land Assignment Act. They comprehend persons, who are in occupation of Government lands, which are defined in the Rules. What is granted under the Rules by way of an assignment is, therefore, a benefit and not an acknowledgement of any right that could be claimed

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W.P.(C)No.15249/09 & con. Cases

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by persons, who were only encroachers of Government land. There could be different classes of assignments, relatable to different classifications of land comprehended by the Land Assignment Act. There is no basis for the contention that all assignees under the Land Assignment Act are otherwise situated on the same platform and therefore, the conditions and restrictions in the matter of assignment under the various Rules framed under the Land Assignment Act will also have to be uniform.

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Insofar as the lands comprehended by

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the present Rules are concerned, they were forest lands and the Government had taken a decision that the occupation of such lands by cultivators may be made made permissible. But that was obviously on the premise that the lands would continue to be cultivated. A restriction against alienation of the lands can only be treated as one, which is in conformity with the broader intention behind the assignment. In such circumstances, there is a

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W.P.(C)No.15249/09 & con. Cases

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rationale behind the classification and the rationale has a nexus with the object sought to be achieved. The plea on the basis of violation of Article 14 of the Constitution of India is, bereft of merit and is, therefore, repelled.

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The petitioners then contend that Rule 15(1) of the Rules which provides for the restriction against alienation of the property that is assigned under the Rules is also violative of Section 10 of the Transfer of Property Act. Section 10 of the said Act as also Rule 15(1) of the Rules are extracted hereunder:

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Section 10 of the Transfer of Property Act:

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“10. Condition restraining alienation: Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the

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W.P.(C)No.15249/09 & con. Cases

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benefit of a woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.”

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Rule 15(1) of the 'Rules':

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15. Lands assigned to be heritable but not alienable except in certain cases:- (1) The lands assigned under these Rules shall be heritable but shall not, subject to sub-rule (2) be alienable.”

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It is contended that the Government,

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as the owner of the property, has assigned the same in favour of the cultivator, who is otherwise eligible under the Rules. It might be open to the Government, as the owner of the property, to impose a restriction against alienation of the property for a limited period as is done in the case of assignees of excess lands resumed under the provisions of the Kerala Land Reforms Act. The right to possess the property, it is contended, and the right to alienate the same is a facet of the right to hold the property and a

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W.P.(C)No.15249/09 & con. Cases

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restriction against alienation of the property for perpetuity would, therefore, be a condition that attracts the vice of Section 10 of the Act, it is contended.

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I am not impressed with this contention. The nature of the assignment under the provisions of the Land Assignment Act, obviously has to be kept in mind.

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The Kerala Land Assignment Act, 1960 is a plenary legislation framed by the State legislature and it provides for assignment of Government lands. The indication given in the preamble is quite noteworthy. It reads as follows:

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Preamble:- WHEREAS it is expedient to regulate the assignment of Government lands and to remove doubts as to the validity of the limitations and restrictions imposed in assignments of land by the Government or under their authority;”

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'Assignment' is defined under Section

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2(2)(a) of the Act “as to include a transfer of land by

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way of lease and a grant of licence for the use of land

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W.P.(C)No.15249/09 & con. Cases

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and 'assignee' is defined under Section 2(2)(b) as to include his heirs also. Sections 3 and 8 are relevant and are extracted hereunder:

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3. Assignment of Government Land: (1) Government land may be assigned by the Government or by any prescribed authority either absolutely or subject to such restrictions, limitations and conditions as may be prescribed.

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8. Assignment to take effect with restrictions, conditions, etc. according to their tenor:- All the provisions, restrictions, conditions and limitations contained in any Pattah or other document evidencing the assignment of Government land or of any interest therein shall be valid and take effect according to their tenor, notwithstanding any law for the time being in force or any custom or contract to the contrary.

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It is significant to note that Section 8

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of the Act contains a non-obstante clause, which gives

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overriding effect to the provisions regarding restrictions, conditions and limitations contained in

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W.P.(C)No.15249/09 & con. Cases

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any patta or other document evidencing the assignment of Government land, i.e. to say, an assignment under the Land Assignment Act, can be made conditional upon such conditions and restrictions, as are prescribed by the Government and the conditions and restrictions under which the assignment is effected, would be operative notwithstanding anything contrary contained in any other law for the time being in force. Apart from the fact that there was no challenge to the validity of Section 8 of the Land Assignment Act, it is also relevant to note that the Government, as the owner of the property, is competent to impose such conditions and restrictions in the matter of assignment of its property. The non-obstante clause contained in Section 8 of the Act would operate qua Section 10 of the Act also. The Land Assignment Act is a special legislation and therefore, the provisions contained in the Special Law can derogate from the provisions contained in the general law, the Transfer of Property

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W.P.(C)No.15249/09 & con. Cases

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Act. It might be open to the Government as the owner of the property, to execute a sale deed viz., a conveyance as is contained in the Transfer of Property Act. Such conveyance may be subject to the conditions and restrictions and incidents contained in the Transfer of Property Act . But the Government is also entitled to assign a property by resort to the provisions of the Government Land Assignment Act and such assignment would always be comprehended by the provisions of the Land Assignment Act, including Section 8 therein. By virtue of Section 8 of the Act, the conditions and restrictions, which could be prescribed by the competent authority in relation to an assignment under the Land Assignment Act would have operation, notwithstanding anything contained in the Transfer of Property Act, including Section 10 thereof. The conditions and restrictions so imposed are under the impugned Rules, which is a Special Law, relating to assignment of property belonging to the Government and the same would

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W.P.(C)No.15249/09 & con. Cases

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have overriding effect over any provision contained in the Transfer of Property Act, which is a general law relating to transfer of immovable property.

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In these circumstances, I am of the

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view that the challenge to Rule 15(1) of the Rules is untenable and unsustainable.

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I also find force in the submission made by the learned Government Pleader that there is a good reason for the imposition of a restriction against alienation of a property assigned under the provisions of the Rules. The lands forming the subject matter of assignment are otherwise forest lands and the Government made an exception from the Rule against assignment of any forest land, so as to lend succour to those persons, who had bona fide cultivated certain Government lands for a long period. The Rules were promulgated in the year 1993 and they seek to regularise occupation of forest land which had commenced prior to 1977. The intention was to see that those persons, who had

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W.P.(C)No.15249/09 & con. Cases

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cultivated land over a long period are not deprived of the benefits of their effort. The intention is to see that such agricultural lands remain as they are. But for the restriction against alienation, as is graphically illustrated by the present cases themselves, the lands could be alienated by the the original cultivators to persons whose intention would only be to commercially exploit the same. In course of time, the agricultural lands would cease to be so and the net result is that forest lands would turn out to be urban commercial plots. This, when viewed as part of the larger canvas, projected by the provisions of the Forest Act, 1980 would clearly be impermissible and would even be unconstitutional. Thus, the restriction against alienation of lands assigned under the provisions of the Rules, is not only not unconstitutional or in any manner illegal, but would also be a provision that is an integral part of the statutory scheme, necessary to render it constitutional.

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W.P.(C)No.15249/09 & con. Cases

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I also find force in the submission

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made by the learned Government Pleader that the challenge against the validity of the Rules or for that matter, the proceedings taken under Exts.P7 and P8, if at all, can be mounted only by the original pattadars and not by subsequent assignees, like the present petitioners.

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For all the reasons mentioned above, I am of the view that the writ petitions lack merit and accordingly, they are dismissed.

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Sd/- (V.GIRI) Judge

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sk/

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//true copy//

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P.S. to Judge

Devassikutty v. the State of Kerala

Case brief

What is this about?

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Devassikutty v. the State of Kerala

Case brief

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