IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 WP(C).No. 29280 of 2005(I) -------------------------- PETITIONER(S): --------------- P.M. AYSHA, AGED 38 YEARS, D/O. P.S. MEERANNAN, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, SHRI P.M. RASHEED, PALAYAM PARAMBIL HOUSE, VADAKKEKARA P.O., ERATTUPETTA, KOTTAYAM. BY ADV. SRI.TPM.IBRAHIM KHAN SRI.S.RADHAKRISHNAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVT. OF KERALA, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, KOTTAYAM DISTRICT. 3. THE REVENUE DIVISIONAL OFFICE, PALAI. 4. SMT. MARYKUTTY, W/O. LATE T.J.JOSHUA, THADATHILPLAKKAL HOUSE, MANKOMBU MOONNILAVU P.O., KOTTAYAM. 5. JOSHY T. JOSHUA, S/O.LATE T.J. JOSHUA, THADATHILPLAKKAL HOUSE, MANKOMBU MOONNILAVU P.O., KOTTAYAM. 6. SHAJI T. JOSHUA, S/O. LATE T.J. JOSHUA, THADATHILPLAKKAL HOUSE, MANKOMBU MOONNILAVU P.O., KOTTAYAM. 7. JISHA T. JOSHUA, D/O.LATE T.J. JOSHUA, THADATHILPLAKKAL HOUSE, MANKOMBU MOONNILAVU P.O., KOTTAYAM. ADV. SRI.MATHEW JOHN (K) FOR R4 & 5 SRI.SUJESH MENON V.B. FOR R4 & 5 SRI.BABY THOMAS FOR R4 & 5 SRI.GIGIMON ISSAC FOR R4 & 5 SRI.MATHEW JOHN (K) FOR R5 & R6 SRI.BABY THOMAS FOR R5 & R6 MR.P.SANTHOSH KUMAR, SPL. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2010, ALONG WITH WPC NOS. 7341/2006 & 36767/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC No.29280/2005 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF REGISTERED SALE DEED NO.718/1976 EXECUTED BY R4 IN FAVOUR OF THE MOTHER OF THE PETITIONER. P2 : COPY OF THE CERTIFIED COPY OF THE REGISTERED SALE DEED NO.3382/1977 EXECUTED BY THOMAS VARGHESE IN FAVOUR OF JOSHUA S/O.JOSHUA. P3 :COPY OF THE DEPOSITION OF SHRI.T.J.JOSHUA S/O.JOSHUA IN S.T.10/1987 BEFORE THE RDO COURT. P4 : COPY OF ORDER NO.ST 10/87/F DATED 14/03/1996 OF RDO, PALAI. P5 : COPY OF APPEAL NO.37719/96 FILED BEFORE THE DISTRICT COLLECTOR, KOTTAYAM. P6 : COPY OF ORDER NO.35670/00/E4 DATED 03/01/2004 ISSUED BY THE DISTRICT COLLECTOR, KOTTAYAM. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.29280 of 2005(I), 7341 of 2006 (Y) & 36767 of 2009 (M) --------------------------------- Dated, this the 25th day of February, 2010 J U D G M E N T The issue raised in these writ petitions being identical, cases were heard and are disposed of by this common judgment. For convenience, I shall refer to the facts as pleaded in WP(C) No.36767/2009. 2. The petitioner is the power of attorney holder of a person, who purchased property having an extent of 2.89 acres of land. The property originally belonged to one Late Shri.T.J.Joshua, and his legal heirs are respondents 4 to 8 and they belong to Scheduled Tribe. 3. By Ext.P1 sale deed dated 23/04/1976, the property having an extent of 2.89 acres was purchased by the petitioner from Shri.Joshua. Proceedings were initiated against the transfer under the provisions of the Kerala Scheduled Tribes (Restriction on Transfer of lands and Restoration of Alienated Lands) Act, 1975. Accordingly, Ext.P3 order was passed by the 3rd respondent WP(C) Nos.29280/05, 7341/06 & 36767/09 -2- directing the petitioner to re-convey the property on receiving the amount specified therein. Aggrieved by the said order, an appeal was filed before the 2nd respondent, which was rejected by Ext.P4. 4. In the meanwhile, 1975 Act, on the basis of which the proceedings were initiated, was repealed and the Kerala Restriction on transfer by and Restoration of Lands to Scheduled Tribes Act, 1999 came be legislated. In this writ petition, the petitioner challenges Exts.P3 & P4 orders referred to above. 5. The main contention raised by the petitioner is that the provisions of the 1999 Act are inapplicable to the land covered by Ext.P1 sale deed for the reason that the extent of land conveyed by the said document is less than 2 Hectors. 6. Section (5) of the 1999 Act reads as under:- “Certain transfers to be invalid:- (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, or in any contract, custom or usage, or in any judgment, decree or order of any Court, any transfer of land possessed, enjoyed or owned by a member of a Scheduled Tribe to a person other than a member of a Scheduled Tribe, effected on or after the 1st day of January, 1960, and before the commencement of this Act shall be deemed to be invalid: Provided that nothing in this section shall render invalid any transfer of land possessed, enjoyed or owned by a member of a WP(C) Nos.29280/05, 7341/06 & 36767/09 -3- Scheduled Tribe to a person other than a member of a Scheduled Tribe effected during the aforesaid period and the extent of which does not exceed two hectares. (2) Notwithstanding anything contained in sub-section (1) or in any judgment, decree or order of any Court or other authority, in cases where the land involved in such transfer is used for agricultural purposes, the transferee hereof shall be entitled to retain in his possession the said land upto an extend of two hectares which shall be demarcated by the Revenue Divisional Officer by order and in the manner as may be prescribed.” A reading of this provision shows that although transfer of the land by a Scheduled Tribe to a person out side the Tribe effected after 01/01/1960 and before the commencement of the 1999 Act is invalid, the proviso to the said section orders that if the extent of land conveyed is less than 2 Hectors, the same will not be invalid. 7. Admittedly, the extent of the land conveyed by Ext.P1 document is only 2.89 acres, which is much less than the prescribed 2 Hectors mentioned in the proviso to Section 5 of the 1999 Act. If that be so, the invalidity provided in Section 5 is inapplicable to the transfer in question. It is seen that this physical aspect of the matter has not been considered either in Ext.P3 and Ext.P4. For that reason, I am inclined to set aside Exts.P3 & P4. 8. The learned Government Pleader however points out that WP(C) Nos.29280/05, 7341/06 & 36767/09 -4- the petitioner may have received compensation from the Government. Although, this has been disputed before me, still if as a matter of fact, any such irregular payment has been received, it is always open to the Government to invoke revenue recovery proceedings and recover the same. 9. In the result, Exts.P3 & P4 orders are set aside. In so far as WP(C) Nos.29280/2005 & 7341/2006 are concerned, in these cases also the property conveyed is having an extent of 2.07 acres and 1.76 acres respectively. The impugned orders are Exts.P5 & P6 in WP(C) No.29280/2005 and Exts.P3 & P5 in WP(C) No.7341/2006. For the reasons as assigned for invalidating Exts.P3 & P4 in WP(C) No.36767/2009, these orders are also liable to be set aside, and I do so. These writ petitions are allowed as above. (ANTONY DOMINIC, JUDGE) jg