Allowed

Dr.Pushpangadan v. State of Kerala

Kerala HC16 Jul 2018WP(C)/8184/2018

Case brief

AI extract

What is this about?

Petitioner sought to register a sale deed for property originally held by the Kerala Jesuit Society, which is an institution of public nature under Section 98A of the Kerala Land Reforms Act. The Sub Registrar refused registration, requiring verification of land exemptions under Section 81. The court held that Section 81 restrictions do not apply to Section 98A beneficiaries. The refusal memo was

What did the court decide?

Impugned rejection memo (Ext.P7) set aside; Petitioner directed to present sale deed for immediate registration.

Dr.Pushpangadan Vs State of Kerala — Land Acquisition | Kerala HC (2018)

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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 ALEXANDER THOMAS

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MONDAY, THE 16TH DAY OF JULY 2018 / 25TH ASHADHA, 1940

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WP(C).No. 8184 of 2018

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PETITIONER(S)

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DR.PUSHPANGADAN S/O.K. DAMODARAN, R/AT PUSHPAJALI, VELLARIKKUNDU PO, KASARAGOD DISTRICT

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BY ADVS.SRI.KODOTH SREEDHARAN SMT.C.B.SUMA DEVI

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RESPONDENT(S):

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1. STATE OF KERALA

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REPRESENTED BY ITS SECRETARY,

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DEPARTMENT OF REGISTRATION,

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GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM - 695 001

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2. THE SUB REGISTRAR

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BALAL, BALAL PO, KASARAGOD - 671533

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3. THE TAHSILDAR

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VELLARIKKUNDU, KASARAGOD - 671533

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4. THE VILLAGE OFFICER

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BALAL, BALAL PO, KASARAGOD - 671533

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BY SRI.RENJITH THAMPAN, ADDITIONAL ADVOCATE GENERAL SRI.C.P.PRADEEP SENIOR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 8184 of 2018 (W)

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1	TRUE COPY 20.03.1998	OF THE SALE DEED	NO. 671/1998 DATED
EXHIBIT P1 A	TRUE COPY 28.09.1998	OF THE SALE DEED	NO. 2302/1998 DATED
EXHIBIT P2	TRUE COPY BOARD DATE	OF THE PROCEEDIN D 04.08.1982	GS OF THE TALUK LAND
EXHIBIT P3	TRUE COPY (MS)NO. 41	OF THE ORDER OF 1/91/RD DATED 17	THE GOVERNMENT IN GO .06.1991
EXHIBIT P4	TRUE COPY PRESENTED REQUISITE	OF THE SALE DEED FOR REGISTRATION STAMP DUTY	DATED 26.10.2017 AFTER PAYMENT OF
EXHIBIT P5	TRUE COPY PRESENTED REQUISITE	OF THE SALE DEED FOR REGISTRATION STAMP DUTY	NO. 2610/2017 AFTER PAYMENT OF
EXHIBIT P6	TRUE COPY PRESENTED REQUISITE	OF THE SALE DEED FOR REGISTRATION STAMP DUTY	DATED 26.10.2017 AFTER PAYMENT OF
EXHIBIT P7	TRUE COPY BY REQUIRI	OF THE MEMO REJE NG ENQUIRY WITH	CTING REGISTRATION THE TAHSILDAR

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RESPONDENT(S)' EXHIBITS : NIL

//TRUE COPY//

P.A.TO JUDGE

nkr

(C.R)

ALEXANDER THOMAS, J.

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W.P.(C) No.8184 of 2018

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==================

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Dated this the 16^th day of July, 2018

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J U D G M E N T

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The petitioner claims to be the owner of a property consisting

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of two plots measuring 10 cents each in R.S.No.112/11A3 which he has purchased from one Sri.P.D.Bineesh as per two separate sale deed Nos.671/1998 dated 20.03.1998 and 2302/1998 dated 28.09.1998. It is further averred that Sri.P.D.Bineesh was holding the said properties on absolute janmom rights and the properties in question were part of a larger extent of land originally held by Kerala Jesuit Society which were held by them as part of Vimala Estate. It is averred that the Kerala Jesuit Society is a religious and charitable society which was entitled for the benefit of Section 98A of the Kerala Land Reforms Act. The 1^st respondent/State Government had issued Ext.P3 G.O.(MS) 411/91/RD dated 17.06.1991, unequivocally holding and declaring that the Kerala Jesuit Society is entitled to be treated as an institution of public nature engaged in religious and charitable work of a religious denomination in terms of Section 98A of the KLR Act. It is also brought to notice that earlier the 2^nd respondent/ Taluk Land

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Board, Kozhikode had also issued Ext.P2 proceedings dated 04.08.1982 dropping all further ceiling proceedings as against the Kerala Jesuit Society, in view of the confirmation of the benefit of Section 98A of the KLR Act.

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It is the further case of the petitioner that on account of the expenditure involved in connection with his daughter's proposed marriage, he had decided to sell the aforesaid properties and other properties belonging to his wife purchased from Sri.P.D. Dineesh. Document No.2064/2017 in respect of the petitioner's wife was presented for registration before the 2^nd respondent/Sub Registrar, SRO-Balal, who had registered the same on 24.10.2017. The petitioner had presented the document pertaining to the sale of his properties for registration, the same was rejected by the 2^nd respondent/Sub Registrar on the ground that he requires verification of the Tahsildar as to whether the property covered by the document would come within the exempted category under Section 81(1)(c) of the KLR Act. The petitioner would submit that his enquires with the competent revenue officials had revealed that there is no such requirement, as is clear from

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the previous documents as well as from Ext.P2 proceedings of the Taluk Land Board as well as Ext.P3 Government Order dated 17.06.1991 of the State Government. The petitioner would therefore, contend that non-registration of Ext.P5 sale deed and the impugned rejection memo as per Ext.P6 has been issued by the 2^nd respondent/SRO which is without authority and that his actions is therefore illegal and ultravires. It is in the light of these factual averments that the petitioner has filed

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the instant writ petition (Civil) with the following prayers:

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“(i) A writ of certiorari or any other appropriate writ order or direction quashing Ext.P7 memo.

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(ii) A writ of mandamus or any other appropriate writ order or direction directing the 3^rd respondent to register Ext.P6 document forthwith without insisting for the condition imposed in Ext.P7.

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(iii) any other appropriate writ order or direction as the Hon'ble Court may pleased to grant in the circumstances of the case.”

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Heard Sri.Kodoth Sridharan, learned counsel

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appearing for the petitioner and Sri. Renjith Tampan, learned Additional Advocate General instructed by Sri.C.P.Pradeep, Senior Government Pleader appearing for the respondents.

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It is not in dispute that the properties in question which were sold by the petitioner's wife and the properties covered by Ext.P6 sale deed executed by the petitioner were

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obtained earlier from one Sri.P.D. Dineesh, who in turn had obtained it from the Kerala Jesuit Society and the said property had formed part of the larger extent of the properties held by the Kerala Jesuit Society as part of ' Vimala Estate'.

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Section 71 of the Registration Act 1908 deals with the reasons for refusal to register a document which reads as follows:

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“Sec.71. Reasons for refusal to register to be recorded.- (1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No.2, and endorse the words “registration refused” on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded.

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(2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.”

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3. Amendment of section 71. - In section 71 of the principal Act, after sub-section(2), the following sub-section shall be inserted, namely:

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(3) No registering officer shall accept for registration any document involving transfer of property including contract for sale of immovable property belonging to or vested in the Government of Kerala or public sector undertakings operating in the State or local self government institutions unless it is accompanied by a no objection certificate issued by an officer authorised by the State Government in this behalf.”

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It can be seen that Section 71(3) was introduced as per Amendment Act 30.01.2013 with effect from 30.09.2013. The respondents do not have any case that the properties covered by

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Ext.P6 sale deed is one which is belonging to or vested in the Government of Kerala or Public Sector Undertakings operating within the State of Kerala or Local Self Government Institutions as envisaged in Section 71(3). Therefore, obviously the provision in Section 71(3) of the Registration Act, 1908 cannot be pressed to service for justifying the refusal to register Ext.P6 sale deed on the basis of impugned Ext.P7 rejection memo.

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Section 120-A of the KLR Act deals with the discretion granted to the registering officer, not to register the deeds in certain cases and the said provision has been introduced as per State Amendment Act 17.01.1972 with effect from 02.11.1972. Section 120A of the KLR Act, reads as follows:

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“Sec. 120A. Registering officer not to register in certain cases.- Notwithstanding anything contained in the Registration Act, 1908 (Central Act 16 of 1908), where the District Collector or any other officer authorised by the Government in this behalf informs the registering officer in writing that there are reasonable grounds to believe that any document relating to transfer of land which may be presented before him for registration is intended to defeat the provisions of this Act, such registering officer shall not register such document until the District Collector or the officer so authorised, as the case may be, informs the registering officer that the transfer is not intended to defeat the provisions of this Act.”

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This Court, the decision in Devassia vs. Sub

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Registrar reported in 2015 (1) KLT 825, has held in para 13

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thereof that, Section 120A of the KLR Act is only an enabling provision and it is not a pre-requisite for registration of any document. The District Collector or any other Officer authorised by the Government has to be satisfied that the transfer of any particular land is being done only in order to defeat the provisions of the KLR Act and therefore, such satisfaction has to be duly arrived at having regard to the subject matter of each transfer and that there has to be an official record to show that the jurisdictional factual parameters under Section 120A has been fulfilled in a given case so as to justify the action of the registering officer to register the document by virtue of the enabling provision contained in Section 120A of the KLR Act. In the instant case, the respondents do not have any case that there exists any such objective material which would show that the competent authority concerned have arrived at a proper satisfaction that the registration of the sale deed is being done only for the purposes of defeating the provisions of the KLR Act. For these reasons as wells as for other aspects to be stated hereinafter, this Court is of the considered view that the provision contained in Section 120A of the KLR Act, also will

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not be helpful for justifying the impugned refusal order.

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It is borne in mind that the properties in question were earlier part of a larger extent of property held by the Kerala Jesuit Society and the said society had secured the benefit of Section 98A of the Kerala Land Reforms Act, 1963. Section 98A of the KLR Act, 1963 provides as follows:

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“ Sec . 98A. Interpretation. - For the purposes of this Chapter, the term 'person' shall not include a co-operative society or an institution of a public nature for religious and charitable purposes established and maintained by a religious denomination or any section thereof or the Board of Trustees for the Improvement of the City of Trivandrum constituted under Section 3 of the Trivandrum City Improvement Trust Act, 1960.

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Explanation.- If any question arises as to whether an institution is an institution of a public nature for religious and charitable purposes maintained by a religious denomination or any section thereof, the question shall be decided by the Government and such decision shall be final.”

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It is clear from the mere reading of Section 98A that

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for the purposes of Chapter III of the KLR Act, the term 'person' shall not inter alia include any institution of a public nature for religious and charitable purposes established and maintained by a religious denomination or any section thereof, as envisaged therein. Further it is engrafted by the legislature, by way of the explanation appended to Section 98A, that if any question arises as to whether an institution is an institution of a

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public nature for religious and charitable purposes maintained by a religious denomination or any section thereof, the said question will have to be decided by the Government and such decision taken by the Government shall be final. In the instant case, there is no dispute that the Kerala Jesuit Society is a religious monastic order of the Roman Catholic church and therefore, it is a religious denomination as understood in Section 98A and the explanation thereto. The Government had earlier, ordered as per G.O.(Rt.) 621/82/RD dated 13.05.1982 (as per which is referred to Ext.P2 order of the Taluk Land Board), that the Kerala Jesuit Society is an institution which comes within the purview of Section 98A of KLR Act. The said G.O.(Rt.) 621/82/RD dated 13.05.1982 is also referred to as 1^st paper in Ext.P3 G.O.(MS) 411/1991/RD dated 17.06.1991. As the issue relating to the entitlement of the Kerala Jesuit Society under Sec.98A was under dispute this Court had earlier remitted the matter as per the judgement in W.A.167/1988 to the Government for consideration of the issue afresh. Thereupon, the Government had issued Ext.P3 G.O.(MS) 411/1991/RD dated 17.06.1991 by conclusively finding that

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several religious institutions are run by the Kerala Jesuit Society and it is doing extensive work in educational, religious and charitable pursuits and that they deserve to be treated as an institution of public nature engaged in religious and charitable work in terms of Section 98A of the KLR Act and the Government had therefore, accordingly declared so, by virtue of the enabling powers conferred under Section 98A of the Act. Further, it is also clearly found in para 2 of Ext.P3 G.O. that the evidentiary materials produced by the Kerala Jesuit Society before the State Government had shown that the said institution is a religious denomination purely run for charitable purposes and the society is running several charitable, educational and religious institutions in the State and thereby rendering great service to the public and that all the institutions run by the Kerala Jesuit Society are functioning with high reputation in the State of Kerala. It will be profitable to refer the to the contents of Ext.P3 G.O.(M.S.) 411/1991/RD dated 17.06.1991 which reads as follows:

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“In G.O. read as first paper above Government had issued Orders declaring Kerala Jesuit Society, Kozhikode as an institution coming under the purview of Section 98A of the K.L.R. Act in exercise of the powers conferred by the said Act. Aggrieved by this order one Smt.Kunhamina Umma

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approached High Court and filed O.P. 4719/83 which was dismissed by the High Court. Against this Smt.Kunhamina Umma filed a Writ Appeal No.167/88 on the file of High Court. In the Judgment in the said W.A.the Court has quashed the Government Order dated 13.5.82 and remanded the case back to the State Government for fresh disposal in the light of the observations made in the course of the judgment after giving opportunity to the appellant, Smt.Kunhamina Umma and the Respondent, the Kerala Jesuit Society of being heard in the matter. Accordingly, both Smt.Kunhamina Umma and the Secretary, Kerala Jesuit Society were asked to be present before Government to present their case in person on 13.11.90. But Smt.Kunhamina Umma was not present on that day. She was given three more chances for hearing. However, Smt.Kunhamina Umma did not turn up for the hearing at any time. The Secretary, Kerala Jesuit Society was present on all these occasions and evidences were taken from him.

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The evidences produced by the Society show that their institution will come under the category of institution run by a religious denomination purely for Charitable purposes. The Society is running several charitable Educational and religious institutions in the State thereby rendering great service to the public. All the institutions run by the Society are functioning with high reputation in the State.

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Government have verified the conditions of the several religious institutions said to have been run by the Society. From the details furnished by the Society it is clear that the Kerala Jesuit Society is doing extensive work in educational, religious and charitable pursuits. They therefore diserve to be treated as an institution of public nature engaged in religious and charitable work in terms of Section 98A of the KLR Act and Government therefore declare accordingly by virtue of the powers vested with them under Section 98A of the K.L.R.Act.”

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It is common ground that Ext.P3 has become final and conclusive and no action has also been taken by the competent authority of 1^st respondent/State Government to alter Ext.P3 G.O. in the manner known to law. Therefore, in the light of Ext.P3 G.O. dated 17.06.1991, the Kerala Jesuit Society stood totally outside the purview of Chapter III of the KLR Act, 1963, in view of the mandatory provisions contained in Section

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98A thereof. In the instant case, as the land in question originally belonging to the Kerala Society and as the said Society is legally entitled for the benefit of section 98A, in view of Ext.P3 G.O. So it is not legally permissible for the respondents to resort to the provisions contained in the Explanation I or II of Section 87 of KLR Act. Section 87 of KLR Act reads as follows.

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“ 87. Excess land obtained by gift, etc., to be surrendered.- (1) Where any person acquires any land after the date notified under Section 83 by gift, purchase, mortgage with possession, lease, surrender or any other kind of transfer inter vivios or by bequest or inheritance or otherwise and in consequence thereof the total extent of land owned or held by such person exceeds the ceiling area, such excess shall be surrendered to such authority as may be prescribed.

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Explanation[I].- Where any land is exempted by or under Section 81 and such exemption is in force on the date notified under Section 83, such land shall, with effect from the date on which it ceases to be exempted, be deemed to be land acquired after the date notified under Section 83.

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Explanation II.- Where, after the date notified under Section 83, any class of land specified in Schedule II has been converted into any other class of land specified in that Schedule or any land exempt under Section 81 from the provisions of this Chapter is converted into any class of land not so exempt and in consequence thereof the total extent of land owned or held by a person exceeds the ceiling area, so much extent of land as is in excess of the ceiling area, shall be deemed to be land acquired after the said date.”

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In view of Sec.98A, the provisions in Chapter III of the

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Act including Sec.87, will not apply to a person who is an institution of public nature for religious and charitable purposes and established and maintained by a religious denomination or section thereof, like

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the Kerala Jesuit Society. Moreover, a reading of Explanation I appended to Section 87(1) would also make it abundantly clear that the same would operate only in case of land which is exempted by or under Section 81 and not in respect of Sec.98A.

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The 2^nd respondent in Ext.P-7 has wrongly noted therein that the land was exempted under Sec. 81(1)(e), whereas, in fact the exemption/exclusion from Chapter III is on account of Sec. 98A in this case. Even if it held that the Explanation under Sec.81 is a qualification burdened with the land and would continue to run with the land that restriction cannot apply to the lands of person who is entitled to the benefit of Sec.98A.

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This Court in the judgment (rendered by P.Subramonian Poti, J. as His Lordship then was) in Raghavan v. State of Kerala & Ors. reported in 1977 KLT 57, dealt with a case, where the land was exempted under Sec. 81(1) of the KLR Act and was subsequently converted to non exempted category and examined whether such a land owner has to surrender excess land under Sec. 87 by deeming such land as acquired on the date of conversion, etc. This Court held in

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Raghavan's case supra that the words used in Sec. 87 cannot properly be understood so as to apply the Explanation thereto to cases beyond and besides those which are specifically covered by the explanation, names,y sub clauses (b), (h) and (k) of Sec.81(1). Accordingly, it was held that in that view subsequent conversion of an exempted category of land into a non exempted category does not attract the Explanation to Sec. 87 and any excess land cannot be assumed for that reason and that hence no proceedings for surrender of such excess land can be taken under Sec. 87(1) in such a case. It was further observed that Sec.87(1) read with Explanation thereto, as so construed does not enable the Taluk Land Boards to meet the situations where there is conversion of extensive areas of land exempted for reasons such as they were private forests prior to 1.1.1970 into non-exempted categories after 1.1.1970 and that possibly it may be necessary to bring such cases also within the ambit of excess land for surrender in keeping with the spirit of the legislation, but that it is a proper subject for legislative treatment.

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This Court in the judgment in Devassia v. Sub

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Registrar, reported in 2015 (1) KLT 825 has observed that the Explanation to Sec.87(1) indicates that once a land, which is exempted under Sec. 81(1), loses its character which qualifies for exemption, shall be deemed as a land acquired after the date notified under Sec.83 of the KLR Act and therefore any land, as a whole or in part is converted into any other class of land which is not specified for exemption, be deemed to be land acquired after the date notified under Sec. 83 of the KLR Act and this provision makes it clear that the exempted land once it is converted would be reckoned for calculating total ceiling area of the person, who held the land as on 1.1.1970. It was also held in Devassia's case supra para 11 thereof, that exemption under Sec. 81 is a qualification burdened with the land and would continue to run with the land, but that there is no restriction in alienation of exempted lands, etc.

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A Division Bench of this Court in State Human

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Rights Protection Centre, Thrissur & Anr. v. State of Kerala reported in 2009 (3) ILR (Ker.) 695, has held that exemption granted under Sec.81(1)(a) is for the land and would continue to operate irrespective of the change of ownership of

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the land and exemption under Sec.81(1)(a) granted in public interest for a specified purpose is a covenant running with the land and on transfer of the exempted land, transferee will have to use the land for the public purpose, for which exemption is granted. Further it was also held that there is no restriction on alienation of the lands exempted under Sec.81(1)(a) of the KLR Act, since such lands are exempted from the operation of Chapter III of the KLR dealing with ceiling on holding and that it is not the excess land that is alienated, but the exempted land, etc. That since under the KLR Act there is no restriction on alienation of the exempted category of lands under Sec.81 and since the transferee is subjected to the acid test of eligibility and and entitlement for exemption in terms of the use of the land, the use of the transferred land should be for the purpose for which the exemption was obtained, etc. However, it is to be noted that the impact of the decision of this Court in Raghavan's Case (1977 KLT 57) has not been considered in State Human Rights Protection Centre's case [2009(3) ILR (Ker.) 695] and Devassia's case [2015 (1) KLT 825]. That aspect of the matter is not of much relevance in the facts of this case, as the exclusion from Chapter III of the KLR Act is on account of Sec. 98A and not Sec.

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81(1) in this case.

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As held herein above, the restrictions which are applicable to the exempted land under Sec. 81 that it is a qualification burdened with the land and should be treated as a covenant of the land etc. will not apply in the case of a land of a person who is entitled to the benefit of Sec.98A of the KLR Act. The reason is simple inasmuch as the exemption from the provisions contained in Chapter III of the KLR Act to a person who is entitled to the benefit of Sec.98A is not with reference to the enumerated categories of purposes for which the land is to be utilized, but solely on account of the fact that the said person is an institution of a public nature for religious and charitable purposes established and maintained by a religious denomination or any section thereof or of other categories of mentioned in that Section. The exemption envisaged under Sec.98A is not in any manner linked to the purpose for which the land is to be utilized but only on account of aspect that the person envisaged under Sec.98A comes within any of the enumerated categories of persons mentioned in that Section. Therefore, the contention of the respondents that the

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transferees of exempted land under Sec.81 should be burdened with the qualification that they also should necessarily continue to use the land for the purpose for which the land had originally secured such exemption is not in any manner applicable in the case of a land belonging to a person who is entitled to the benefit of Sec. 98A of the Act. Therefore, in the instant case, no such qualification can be burdened in respect of the lands covered by Ext. P-1 series of sale deeds, which originally formed part of the lands held by the Kerala Jesuit Society, who are the beneficiaries of Ext.P-3 G.O. issued under Sec. 98A of the KLR Act. But the 2^nd respondent has wrongly noted in Ext.P-7 that the land was exempted under Sec. 81(1)(e).

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In the light of the abovesaid facts and circumstances, this Court is of the considered view that, the stand of the 4^th respondent in refusing to register Ext.P6 sale deed on the ground that he requires further clarification in the matter as to whether the land had secured exemption under Section 81(1) of the KLR Act, is based on irrelevant considerations. In that view of the matter, the impugned rejection memo at Ext.P7 dated 15.02.2018 will stand set aside.

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It is for the petitioner to present Ext.P6 sale deed forthwith before the 2^nd respondent/Sub Registrar and upon such presentation, the 2^nd respondent/Sub Registrar will register the said document, if it is otherwise in order. The petitioner will produce a certified copy of this judgment before 2^nd respondent/ Sub Registrar Officer for necessary information. The office of the Advocate General may also forward certified copies of the judgment to the respondents for necessary information and action.

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With these observations and directions, this writ petition (Civil) will stand finally disposed of.

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nkr/20.07.2018 sdk+

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Sd/- ALEXANDER THOMAS, JUDGE ///True Copy///

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P.S. to Judge

Dr.Pushpangadan v. State of Kerala

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Dr.Pushpangadan v. State of Kerala

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