T.R. Gopi vs District Collector and Another

P.K. Shamsuddin, J.—Since common questions are involved in these Original Petitions, they were heard jointly and disposed of by a common judgment. Government assigned 50 cents of land in Rs. 93 of Kolari amsom under Sec. 96 of Kerala Land Reforms Act in favour of one Kumbathi Narayanan as per proceedings of District Collector Kannur, No. B8 - 60553/75 dated 244-76. It appears, the said Narayanan assigned the entire land as per assignment deed No. 2005/85 dated 19-11-1985 on the file of Mattannur S.R.O. in favour of the petitioner in O.P. No. 1544/92. Subsequently in 1988, as per registered assignment deed dated 31-8-1988, petitioner in O.P. 1774/92 assigned the 281/4 cents of property in favour of the petitioner in O.P. 1544/92. It is alleged that Narayanan sold the property, when he was undergoing treatment for the purpose of raising funds for the treatment and the petitioner in O.P. 1544/92 purchased the property for the purpose of putting up a godown for stocking gas cylinders. It is also submitted that he constructed a godown spending Rs. 1,50,000/-.

While matters stood so, 1st respondent initiated proceedings under Rule 29 (8) of Kerala Land Reforms (Ceiling) Rules for resumption of the property on the ground that there is violation of Rule 29 (1). Under the said Rules, an assignee of surplus land is prohibited for selling the land for a period of 12 years. On receipt of the notice, petitioners filed statements. It was contended that the show cause notice issued for resumption of land, after 12 years from the date of assignment in favour of Narayanan is illegal and the 1st respondent was not competent to resume the land. In the explanation submitted by the petitioner in O. P. 1544/92, he stated that he purchased the land for stocking the gas cylinders and that he did not have financial capacity to purchase another land. It was also pointed out that he is a Scheduled Caste candidate and that factor also may be taken into account. However, the District Collector passed Ext. P3 order, directing resumption of land and petitioners have challenged this in these Original Petitions.

A courier affidavit has been filed on behalf of respondents 1 and 2. It is stated therein that the assignment in favour of Narayanan is liable to be cancelled for violation of Sub-rule 1 of Rule 29 of Kerala Land Reforms (Ceiling) Rules, 1970.

Two points have been raised by learned counsel for petitioners : (1) The provisions contained in Rule 29 (1) is opposed to Section 10of Transfer of Property Act; (2) The prohibition contained in Rule 29 (1) (2) is only for 12 years and therefore the assignment in favour of petitioners beyond that period has not attracted the said Rule. I am unable to sustain any of these contentions raised by learned counsel for petitioners. Petitioners have cot challenged the vires of Rule 29 (8) by impleading the Government, which has framed the Rule and for that reason alone the first contention is liable to be rejected. This apart, the assignment in favour of Narayanan is under the provisions of Land Assignment Act and the Rules framed thereunder. Sec. 8 of the Act reads as follows :-

Assignment to take effect with restrictions, conditions, etc. according to their tenor:-All the provisions, restrictions, conditions and limitations contained in any Patta 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.

The assignment in favour of Narayanan contains a provision prohibiting any assignment before the expiry of 12 years In view of the non obstante clause contained in Section 8, restrictions contained in the assignment should prevail notwithstanding anything contained in Transfer of Property Act. It is also highly doubtful whether a partial restriction would come within the mischief of Section 10of T. P. Act. It is not necessary for me to decide that question finally in the view that I am taking that the non - obstante clause contained in Land Assignment Act should prevail, notwithstanding anything contained in Transfer of Property Act.

It is not disputed that transfer in favour of petitioner in O.P. No,: 1744/92 by Narayanan is within the prohibited period of 12 years. In view of that, the assignment in favour of Narayanan is liable to be cancelled as it comes within the mischief of Rule 29 (1). The assignment in favour of petitioner in O.P. No: 1544/92, though beyond the period of 12 years, it from an assignee, whose assignment is liable to be cancelled consequent to the cancellation of assignment in favour of Narayanan. It follows further assignee from such an assignee cannot claim a better right. Rule 29 (8) does not lay down that notice of cancellation should be issued within 12 years from the date of the original assignment and in the circumstances, the 2nd contention also has no force. Learned counsel for petitioners lastly contended that petitioner in O.P. 1544/92 is a person belonging to Scheduled Caste and it is with great amount of difficulty that he got a license to deal in L.P.G. Gas. It is also averred that he had to avail heavy loan to construct a godown spending about Rs. 1, 50 lakhs in the property assigned to him.- Counsel submitted that he would be put to great hardship if the land is resumed. According to him, he had no other place to stock gas and he will have to closedown the business which he started and it will not be possible for him to pay back the amounts borrowed for construction of the building. The assignment in his favour is beyond 12 years and he must have thought that it would not be hit by Rule 29 (1). These are certainly matters which have to be taken into account in considering the question whether he should be dispossessed. In the circumstances, he wanted to make a representation to the authorities not to disturb his possession or to assign the property covered by assignment in his favour, If such a representation is presented before the authorities, that will be duly considered and appropriate orders pasted.

Original Petitions are disposed of as above.