IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 WP(C).No. 17488 of 2010(I) -------------------------------------- PETITIONER(S): -------------------- THOMAS,S/O.POULOSE, KULANGARA, CHITTOOR P.O., AGALI (VIA),MANNARKKAD TALUK. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, THIRUVANANTHAPURAM. 2. REVENUE DIVISIONAL OFFICER, OTTAPPALAM. 3. TAHSILDAR, MANNARKKAD, 4. VILLAGE OFFICER,SHOLAYOOR. BY SPL.GOVERNMENT PLEADER SRI.SANTHOSHKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.17488/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE DOCUMENT NO.1162/07 DTD. 5.9.07. P2:- COPY OF THE DOCUMENT NO.35421/78 DTD. 1.9.78. P3:- COPY OF THE APPROVED PLAN. P4:- COPY OF THE TAX RECEIPT D.NO.5962690 DTD. 16.12.2008 ISSUED BY THE 4TH RESPONDENT. P5:- COPY OF THE TAX RECEIPT E.NO.5637827 DTD. 1.8.09 ISSUED BY THE 4TH RESPONDENT. P6:- COPY OF THE POSSESSION CERTIFICATE NO.1932/08 DTD. 2.12.08 ISSUED BY THE 4TH RESPONDENT. P7:- COPY OF THE REPORT DTD. 30.4.2010 OF THE 4TH RESPONDENT. P8:- COPY OF THE LOCATION SKETCH. P9:- COPY OF THE STOP MEMO NO.12/2010 DTD. 18.5.2010 ISSUED BY THE 4TH RESPONDENT. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. ================ W.P.(C) NO. 17488 OF 2010 ===================== Dated this the 18th day of November, 2010 J U D G M E N T Petitioner submits that he purchased 4 cents of property in Sy.No.1479/Part of Sholayoor Village of Mannarkkad Taluk in the year 2007 from one Peachiammal, W/o.Sundar Goundar, who in turn obtained the property by virtue of document No. 3542 of 1978 from one Sivan S/o.Maruthan. Ext.P1 is the title deed of the petitioner and Ext.P2 is the prior deed of the vendor. He approached this Court aggrieved by Ext.P9 stop memo issued by the Village Officer calling upon the petitioner to stop further construction work in the land in question. 2. At the stage of admission, this Court passed order dated 17/6/2010 staying Ext.P9 without prejudice to the right of the respondents to proceed further under the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999. Petitioner submits that on the strength of the said interim order, the construction work which was going on there, has since been completed. 3. Now the petitioner complains that, tax in respect of the WPC No. 17488/10 :2 : property is refused to be accepted and that a possession certificate also is declined to be issued. It is this grievance that is now urged by the counsel. 4. The stand taken by the respondents in the counter affidavit filed by them is that an enquiry is going on as to whether the vendor of Ext.P2 title deed had alienable interest in the land in question. According to the 2nd respondent, the land in Sy.No.1479/7 of Sholayoor Village has been recorded in the village records as “Ooru Bhoomi”, which means common landed property of Scheduled Tribes, used for the combined living of group of Scheduled tribe families like a colony. It is stated that in respect of such land, neither will be there any individual right nor any salable right for any particular individual. It is stated that in view of the said entries in the revenue records, an enquiry is now going on as to whether Sri.Sivan, who has executed Ext.P2 title deed had any salable interest in the property. It is stated that such an enquiry with notice to the petitioner has to be completed and it is because of the pendency of the aforesaid proceedings that the respondents had issued Ext.P9 and have refused to accept tax and issue possession certificate as sought for by the WPC No. 17488/10 :3 : petitioner. 5. Counsel for the petitioner however contended that in view of Section 5 of Act 12 of 99 referred to above, since the extent of the property is less than 2 hectares, invalidity to transfers provided under Section 5(1) of the Act is inapplicable. He also contended that this contention is fully justified in view of the Apex Court judgment in State of Kerala v. Peoples Union for Civil Liberties (2009) 8 SCC 46). 6. In my view, the saving provision contained in the proviso to Section 5 of the Apex Court judgment relied on by the counsel for the petitioner will not come to his rescue. This is for the reason that the transactions saved as per the proviso to Section 5 can apply only in a case where alienation in question is made by a Scheduled Tribe, who has salable interest in the property in question. In this case, the dispute raised by the respondents and in respect of which the enquiry is now going on is that, the property has been recorded as ooru bhoomi in the village records and that such lands are common landed property of the scheduled tribes and that there is no individual salable right in favour of any particular individual. WPC No. 17488/10 :4 : 7. If as stated, such an enquiry is now going on, I cannot find fault with the respondents for not having accepted tax or for refusing to issue possession certificate. In that view of the matter, I feel the appropriate course to be adopted is to direct the 2nd respondent to complete the enquiry, which is mentioned in Ext.P9 and in the counter affidavit, which shall be done with notice to the petitioner. 8. It is directed that the enquiry mentioned above shall be completed in accordance with law and with notice to the petitioner and as expeditiously as possible, at any rate within 6 weeks of production of a copy of this judgment and that depending upon the outcome of the enquiry, orders shall be passed and further action shall be taken on the request of the petitioner for accepting tax, issue of possession certificate and on the withdrawal of Ext.P9 stop memo. 9. Needless to say that the contentions of the petitioner on the merits are left open to be considered by the respondents. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp