Kerala High Court
Somanathan vs The District Collector on 11 October, 2018
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY,THE 11TH DAY OF OCTOBER 2018 / 19TH ASWINA, 1940
WP(C).No. 33342 of 2018
PETITIONER/S:
1 SOMANATHAN
AGED 64 YEARS
S/O VELUPPILLA, RESIDING AT RATHEESH BHAVANAM, ULIYAKOVIL
CHERRY, ULIYAKOVIL P.O.,
KOLLAM PIN - 691 019
2 LATHIKA,
AGED 59 YEARS
W/O. SOMANATHAN, RESIDING AT RATHEESH BHAVANAM, ULIYAKOVIL
CHERRY, ULIYAKOVIL P.O, KOLLAM PIN 691 019
BY ADVS.
SRI.A.JANI(KOLLAM)
SRI.G.SIVASANKAR
SMT.L.JYOTHY KUMARI
RESPONDENT/S:
1 THE DISTRICT COLLECTOR,
KOLLAM DISTRICT, COLLECTORATE, KOLLAM PIN - 691 013.
2 THE TAHSILDAR,
THALUK OFFICE, KOLLAM PIN 691 001
3 THE RE SURVEY SUPERINTENDENT,
THALUK OFFICE, KOLLAM PIN 691 001
4 KOLLAM DISTRICT SURVEY SUPERINTENDENT OFFICE,
COLLECTORATE, KOLLAM IN CHARGE OF RE SURVEY ALC NO. 5 PIN
691 013.
5 ASSISTANT DIRECTOR(RE SURVEY),
OFFICE OF THE ASSISTANT DIRECTOR, NEETHI NAGAR 14A,
CHEMMAMUKKU, PATTATHANAM, KOLLAM 691 021.
6 HEAD SURVEYOR,
CENTRAL SURVEY OFFICE, THIRUVANANTHAPURAM 14,
PIN 695 014
7 THE VILLAGE OFFICER,
KOLLAM EAST VILLAGE, KOLLAM PIN 691 557.
OTHER PRESENT:
SRI.M.R.DHANIL, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.10.2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)No.33342/2018 2
ALEXANDER THOMAS, J.
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W.P.(C)No.33342 of 2018
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JUDGMENT
The prayers in this Writ Petition (Civil) are as follows:
"1.A writ of mandamus or any other writ directing an enquiry into Exhibit P 5 complaint preferred by the writ petitioners to the second respondent and to take immediate appropriate action in Exhibit P 5 complaint.
2. To call for the records leading to changes in entry in Exhibit P4 and direct the 2 nd respondent to cancel the entries whereby thandapper of writ petitioners is changed into the name of third party.
3. To issue a writ of mandamus or such other writ order directing the 7th respondent to permit the writ petitioners to pay tax in respect of property covered under Exhibit P1 to P3.
4. To issue such other writ, order or direction found to fit and proper to grant by this Honourable Court during the course of the proceedings and prayed for by writ petitioners."
2. Heard Sri. A. Jani, the learned counsel appearing for the petitioners and Sri. M.R. Dhanil, the learned Government Pleader appearing for the respondents.
3. According to the petitioners, they are W.P.(C)No.33342/2018 3 absolute title holders in possession of an extent of 14.75 cents of property comprised in old survey No.10536/26 of Kollam east Village, Kollam Taluk, Kollam Revenue District as evident form Ext.P1 sale deed NO.426/1980 dated 11.2.1988 of SRO Kollam and Ext.P2 basic tax receipt dated 30.3.1988 issued by the 7th respondent Village Officer. Further that Ext.P3 encumbrance certificate dated 12.4.2017 issued by the Sub Registrar concerned would show clearly that the property presently comprised in Re-survey No.1, in Block No.15 and that no voluntary transfer of revenue registry or Revenue sale or succession has been effected in respect of that property. The complaint of the petitioner is that still as per Ext.P4 Thandapper account extract, it is shown that the aforesaid property has been transferred to the thandapper account of a third person on the basis of a alleged decision in survey adalath, S.A.No.13/1999 dated 22.7.1999 of Head Surveyor III, ALC No.5, Re-survey, Kollam. That the petitioners' consistent enquiry has W.P.(C)No.33342/2018 4 revealed that the aforesaid survey office is not longer in existence and the petitioners had approached the various authorities to get a copy of the alleged order in Survey adalath S.A.No.13/1999 of dated 22.7.1999 which is mentioned in Ext.P4 thandaper account and such attempts have been fully in vain. The 5th respondent Assistant Director (RE-survey), by Ext.P6 letter dated 22.11.2017, has informed that the said resurvey office ALC No.5 has been abolished and the records are handed over to the 4th respondent District Survey Office. Further the 4th respondent District Survey Superintendent Office in turn has informed as per Ext.P7 letter dated 19.12.2017 that no such records are available with that respondent. Still further the 6th respondent Central Survey Office has informed vide Ext.P8 letter dated 5.2.2018 that the alleged file is no longer available with them and it could be with the RE-survey Office, Punalur. The petitioners made fervent enquiry with the Re- survey Office, Punalur and the said officials had W.P.(C)No.33342/2018 5 informed that no such file is available with them. The petitioners would say that in all probability it is highly unlikely that the file will be with the Punalur Office as the said office has no connection whatsoever with the property which is situated in Kollam Taluk area and which is lying within the territorial limits of the Kollam Municipal Corporation. That Exts.P6 to P8 only show that the petitioners have been made to unnecessarily run from pillar to post and the alleged decision in S.A.No.13/1999 dated 22.7.1999 is highly elusive and mysterious and that in all probability it could be the product of a foul play.
4. The 1st petitioner had submitted Ext.P5 complaint dated 4.12.2017 before the 2nd respondent Tahsildar, for directions to the competent revenue officers concerned to accept the basic land tax from the 1st petitioner in respect of the above said property. The 7th respondent Village Officer has informed that as per Ext.P9 letter dated 29.5.2018, the thandapper originally instituted in the name of W.P.(C)No.33342/2018 6 the petitioners has now been transferred as per the said decision dated 22.7.1999 of ALCNo.5, Re-survey etc.
5. The petitioners would point out that the change of registry could be effected only through the process permitted as per the provisions contained in the Transfer of Registry Rules and that the Re-survey authority or survey authorities have no role whatsoever in regard to taking action for transfer of registry in accordance with the said Rule. That the provisions of the Kerala Survey and Boundaries Act, 1961 also does not empower the survey authorities or Re-survey authorities to trench into the title of the parties and order for transfer of registry as the authority under the Survey and Boundaries Act, 1961 is limited only to determine boundaries of properties and if on measurement it is found that the property is lesser in extent than that encrypted in the title deeds, the same could also be recorded. But, that the Survey and Boundaries Act does not empower the W.P.(C)No.33342/2018 7 authorities under it to correct or make changes in the thandaper account, which is only based on the Transfer of Registry Rules, 1966. That as per Rule 2 of the Transfer of Registry Rules, 1966 the change of registry take place only in three circumstances, viz.,
1) By voluntary action of the owners, 2) By virtue of decree of Civil Courts or Revenue sales or 3) by succession. That the alleged transfer of property in Ext.P4 thandapper extract does not come within any of the permissible categories envisaged in the Transfer of Registry Rules. The petitioner would contend that the alleged order in A.L.C.13/1999 referred to in Ext.P4 is per se illegal and ultra vires and that the survey authorities have no competence of jurisdiction to direct the revenue authorities to make changes in the revenue registry etc.
6. Accordingly, it is pointed out by the petitioners that the respondents are legally obliged to treat the alleged transfer referred to W.P.(C)No.33342/2018 8 in Ext.P4 thandapper account as null and void as it has no validity in the eye of law and that the competent authority concerned is obliged to accept land tax from the petitioners in respect of the property covered by Exts.P1 and P2. It is further submitted by the petitioners that the petitioners are still enjoying absolute ownership and possession in respect of the above said property. It is in the light of these factual averments, the petitioners have filed this instant Writ Petition (Civil) with the aforementioned prayers.
7. Taking note of the facts and circumstances of the case, it is ordered in the interest of justice that the 2nd respondent Tahsildar will take up the request made by the petitioners in Ext.P5 application/complaint dated 4.12.2017 and may call for necessary reports from the various officials concerned and find out the factual basis as to how the entries have been made in Ext.P4 thandapper account and may take a considered decision on the W.P.(C)No.33342/2018 9 said request made by the petitioners in Ext.P5 without further delay. The copies of the reports so obtained by the 2nd respondent should be made available to the petitioners in order to enable them to make necessary pleas in that regard. The specific contention of the petitioners that the transfer of registry as noted in the impugned Ext.P4 proceedings has been made without any legal authority whatsoever and that therefore, it is bound to be treated as null and void and nonest should also be specifically adverted to and considered by the 2nd respondent. In that regard it would be open to the 2nd respondent to seek the advice of the District Government Pleader concerned. A copy of the said legal opinion, if so obtained, should also be given to the petitioners. The entire process in this regard should be completed by the 2nd respondent without much delay at any rate, within a period of four months from the date of production of a certified copy of this judgment.
W.P.(C)No.33342/2018 10
After taking decision on Ext.P5 complaint, the matter should be reported by the 2nd respondent Tahsildar to the 1st respondent District Collector. The 1st respondent District Collector should also examine various aspects of the matter and may consider whether it is necessary to order for any enquiry or investigation by the Crime Branch or Vigilance and Anti Corruption Bureau etc. and whether such action is warranted in the facts and circumstances of the case. The petitioner may produce certified copy of this judgment before respondents 1 and 2 for necessary and further action. The Office of the Advocate General will forward copies of this judgment to all the respondent for necessary information.
With these observation and directions, the above Writ Petition (Civil) will stand finally disposed of.
Sd/-
acd ALEXANDER THOMAS, JUDGE. W.P.(C)No.33342/2018 11 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF SALE DEED NO. 426 OF 1988 IN FAVOUR OF WRIT PETITIONERS EXHIBIT P2 TRUE COPY OF BASIC TAX RECEIPT NO. 66
DATED 30-03-1988 ISSUED BY THE KOLLAM EAST VILLAGE OFFICE EXHIBIT P3 TRUE COPY OF ENCUMBRANCE CERTIFICATE NO. 2975 DATED 12-04-2017 ISSUED BY KOLLAM S.R.O EXHIBIT P4 TRUE COPY OF THANDAPPER EXTRACT ISSUED BY KOLLAM EAST VILLAGE OFFICE EXHIBIT P5 TRUE COPY OF COMPLAINT SUBMITTED BY FIRST WRIT PETITIONER TO 2ND RESPONDENT EXHIBIT P6 INFORMATION GIVEN BY 5TH RESPONDENT UNDER RI ACT EXHIBIT P7 TRUE COPY OF INFORMATION GIVEN BY 4TH RESPONDENT EXHIBIT P8 TRUE COPY OF INFORMATION GIVEN BY 6TH RESPONDENT EXHIBIT P9 TRUE COPY OF REPORT SUBMITTED BY 7TH RESPONDENT.
TRUE COPY P.S. TO JUDGE.