SUKUMARAN Vs. JOINT REGISTRAR

JUDGEMENT

(1.) This writ petition is filed seeking to set aside Ext. P12. Ext. P12 is a notice intimating the writ petitioner regarding the direction of the Court to Amin to deliver the property on 25/05/2007. The only point that arises for consideration is whether there is any statutory protection for the writ petitioner against the Court sale and delivery of the property which belong to a scheduled tribe. There is no dispute that the writ petitioner belong to a scheduled tribe community. Equally there is no dispute that the writ petitioner has mortgaged the property with a Cooperative Society for raising a loan.

(2.) The learned counsel for the writ petitioner had brought my attention to S.4 of the Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 as well as R.5 of the said enactment. As per S.4 notwithstanding anything contained in any other law, no scheduled tribe can alienate the property belonging to him other than a scheduled tribe without the previous consent in writing of a competent authority. Under R.5 in execution of a money decree there cannot be any attachment of any immovable property except for the purpose of realisation of the amount of maintenance and that the sale should be in favour of a scheduled tribe. Therefore, the learned counsel for the writ petitioner submits that the property held by him cannot be proceeded against and therefore there cannot be any sale much less delivery of the property.

(3.) The learned counsel for the 3rd respondent has invited my attention to S.3 of the Act. It is an exemption clause. Under that clause, "Nothing contained in this Act shall apply to the mortgage, pledge or hypothecation of any immovable property by a member of a scheduled tribe in favour of a Cooperative Society registered or deemed to be registered under the Kerala Cooperative Societies Act, 1969 or a corporation or a nationalised Bank or any other financing agency, not being a private agency or a money lender, as security for any loan advanced by such, society, corporation, Bank or other agency". So, the intention of the legislation was to exclude from the purview of provisions mortgages, hypothecation etc. done by a scheduled tribe in favour of a Cooperative Society or a nationalised Bank or other governmental agency. Now, in the case before me, admittedly the property has been mortgaged to a Cooperative Bank. The application of the enactment is exempted by virtue of S.3(c) of said transaction. Therefore, S.4 or R.5 will not be applicable to a transaction which falls under S.3 is my view. When it is so the said property can be proceeded with by the Bank and the method adopted by the Bank to proceed against the mortgage property for sale cannot be found fault with. Since S.4 or R.5 does not come to the rescue of the writ petitioner in the light of S.3(c) I find the sale effected by the society cannot be set aside as it is not against the provisions as contended by the learned counsel for the writ petitioner. Therefore, there is no ground to set aside Ext. P12 notice and hence the writ petition is dismissed.