IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 WP(C).No. 1828 of 2010(C) ------------------------- PETITIONER: ------------- SALEEM AHMED HAJI ISMAIL S/O.AHMED HAJI ISMAIL, ENGINEER OVERSEES CITIZEN OF INDIA,RESIDING AT METTILWEF-2, CH-4148 PFEFFINGEN,SWITZERLAND, REPRESENTED BY HIS POWER OF ATTORNEY HOLDR M.D.JAYAPRASHAN, MAROTTIKAL HOUSE, NATTIKA POST,THRISSUR DISTRICT. BY ADVS.SRI.MATHEW KURIAKOSE SRI.MATHEWS K.UTHUPPACHAN RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY,GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2. THE VILLAGE OFFICER, THALIKKULAM VILLAGE CHAVAKKAD TALUK, TRICHUR DISTRICT. 3. TAHSILDAR, CHAVAKKAD TALUK THRISSUR DISTRICT. BY GOVERNMENT PLEADER SMT.ROASE MICHAEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.11.2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 1828 of 2010(C) ----------------------------------- APPENDIX ------------- PETITIONER'S EXHIBITS ----------------------------- EXT.P1. COPY OF THE CERTIFICATE OF REGISTRATION DATED 12.09.2006 ISSUED TO THE PETITIONER BY COUNSELLOR EMBASSY OF INDIA, BEMA (SWITZERLAND). EXT.P2. COPY OF THE COMMUNICATION DATED 10.07.2006 ISSUED FROM MINISTRY OF HOME AFFAIRS (FOREIGNERS DIVISION). EXT.P3. COPY OF THE DOCUMENT NO.1545/1/2007 OF S.R.O. VADANAPPALLY. EXT.P4. COPY OF THE SALE DEED NO.531/1/2009 OF SRO, VADANAPPALLY. EXT.P5. COPY OF THE RECEIPT NO.63295669 DATED 22.11.2007. EXT.P6. COPY OF THE TAX RECEIPT DATED 21.4.2009 FOR RS.10/- ISSUED BY 2ND RESPONDENT. EXT.P7. COPY OF THE LAWYER NOTICE DATED 29.8.2009. EXT.P8. COPY OF THE POSTAL ACKNOWLEDGEMENT EXT.P9. COPY OF THE REPRESENTATION DATED 23.12.2009 SUBMITTED BY PETITIONER BEFORE 3RD RESPONDENT. RESPONDENT'S EXHIBITS : NIL ------------------------------- / TRUE COPY / P.A. TO JUDGE VK C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 1828 of 2010 --------------------------------- Dated this the 30th day of November, 2011 JUDGMENT The issue involved in this writ petition pertains to mutation (transfer of registry) of property purchased by the petitioner, in the revenue records. Exts.P3 and P4 are the Sale Deeds through which the property was purchased by the petitioner. Admittedly the petitioner is a foreign citizen. But he was originally an Indian citizen, a native of Mumbai. Indian Embassy at Switzerland had issued a Certificate of Registration as 'Overseas Citizens of India (OCI)' to the petitioner. Ext.P1 is the said Registration. Ext.P1 contains a clause to the effect that a registered 'OCI' is entitled to all the benefits in parity with NRIs in economic, financial and educational fields except in matters relating to acquisition of agricultural/plantation properties. 2. The property purchased by him through Ext.P3 sale deed is 80 cents of 'paramba' (garden land) as evident from the schedule to Ext.P3. Ext.P4 sale deed relates to a property having an extent of 5 cents which contains a residential building. WP(C).No.1828/2010 2 Grievance of the petitioner is that, eventhough the respondents 2 and 3 were approached for effecting the transfer of registry, no decision has been taken on the basis that the petitioner is a foreign citizen. Ext.P2 circular issued by the Ministry of Home Affairs, Government of India dated 10.7.2006 indicates that, only such foreign nationals who have been registered as PIOs or OCI's holding proof of PIO card or OCI Registration Certificate issued by the competent authority under the Central Government or Indian Missions/Posts abroad, alone are allowed to acquire properties other than agriculture and plantation at par with NRIs. The contention of the petitioner is that properties purchased by him by virtue of Exts.P3 and P4 are not agricultural land and the denial of transfer of registry is illegal and unsustainable. 3. Learned Government Pleader on the basis of instruction received from respondents 2 and 3 contended that, the request for mutation was referred for decision of the 3rd respondent and the 3rd respondent, after considering Ext.P2 circular issued by the Government of India, was convinced that persons like the petitioner can be allowed only to acquire WP(C).No.1828/2010 3 properties other than agricultural and plantation. The basic tax records and connected records kept in the village office showed that the 80 cents of land covered by Exts.P3 and 5 cents covered by Ext.P4 are agricultural lands which are classified as 'Thottam' plantation in the BTR and the land in question is cultivated with coconut trees. However it is mentioned that the matter was referred for a decision of the District Collector, Thrissur and the authorities is waiting for opinion of the District Collector to take a decision. 4. Considering the conditions stipulated in Ext.P1 OCI registration as well as in Ext.P2 circular issued by the Ministry of Home Affairs, Government of India, it is evident that persons holding OCI registration are entitled to acquire property other than agricultural land or plantation. The description of the land in Ext.P3 is as paramba (garden land). But from the description of the land covered under Ext.P4 it is evident that the same is a residential compound, containing a residential house. Therefore at any rate I find no justifiable reason to deny transfer of registry with respect to the residential compound covered under Ext.P4 WP(C).No.1828/2010 4 sale deed. With respect to the 80 cents of property in Ext.P3 sale deed, the contention of the respondents is that the property is described as Thottam in the records kept at the village office. At the same time their contention is that it is a property having cultivated with coconut trees . The term 'Thottam' indicates that it is a plantation. But for describing the land as plantation it should be cultivated with those crops coming within the purview of the plantation. Probably reference in this regard to the concerned statutes relating to plantation like Plantation Labour Act or other such enactments will be of useful. Further question arises as to whether it is agricultural land. Merely because it contains coconut trees it could not be classified as either agricultural land or plantation. But a decision need be taken on the basis of the nature of the land as it exists on today. 5. Therefore I am of the opinion that a direction to the 3rd respondent to take a decision on the request for effecting mutation with respect to the property under Ext.P3 sale deed shall be taken after conducting physical verification on the land and by abiding to the parameters in Exts.P1 and P2 . I direct WP(C).No.1828/2010 5 respondents 2 and 3 to effect mutation with respect to the residential compound covered under Ext.P4 sale deed forthwith. A decision with respect to the land under Ext.P3 shall be taken by the 3rd respondent at the earliest possible, at any rate within a period of two months from the date of receipt of a copy of this judgment, with proper opportunity afforded to the petitioner to establish his contentions. C.K.ABDUL REHIM,JUDGE pmn/ WP(C).No.1828/2010 6